EXHIBIT 4.17
EXECUTION COPY
INTERCREDITOR AND SUBORDINATION AGREEMENT
This INTERCREDITOR AND SUBORDINATION AGREEMENT, dated as of April 15, 2002,
(hereinafter, this "Intercreditor Agreement") is entered into among CITICORP
USA, INC., as DIP Agent (as defined below) for the banks and other financial
institutions from time to time parties to the DIP Credit Agreement (as defined
below), CREDIT SUISSE FIRST BOSTON, as Pre-Petition Agent (as defined below) for
the banks and other financial institutions from time to time parties to the
Pre-Petition Credit Agreement (as defined below), those Pre-Petition Lenders (as
defined below) party to the Standstill Agreement (as defined below) whose names
are listed on the signature pages hereof as Pre-Petition Lenders, CITICORP USA,
INC., as Escrow Agent (as defined below), the subsidiaries set forth on Schedule
1 attached hereto (the "Existing Foreign Subsidiaries") of EXIDE TECHNOLOGIES, a
Delaware corporation and debtor and debtor-in-possession in the Cases referred
to below ("Exide") and GNB BATTERIES TECHNOLOGY JAPAN, INC., a Delaware
corporation (the "Domestic Non-Debtor"). Capitalized terms and other terms used
in this Intercreditor Agreement shall have the meanings ascribed to them in
Section 1 below.
W I T N E S S E T H :
WHEREAS, Exide and certain of its Domestic Subsidiaries (collectively, the
"Filing Entities") have filed voluntary petitions for relief under Chapter 11 of
the Bankruptcy Code (the "Cases") in the United States Bankruptcy Court for the
District of Delaware (the "Bankruptcy Court");
WHEREAS, the Filing Entities are continuing to operate their respective
businesses and manage their respective properties as debtors-in-possession under
Sections 1107 and 1108 of the Bankruptcy Code;
WHEREAS, Exide and the other Filing Entities as borrowers (the
"Borrowers"), certain other Subsidiaries of Exide as guarantors (the "Domestic
Guarantors"), certain financial institutions party thereto as lenders and
issuing banks, Citicorp USA, Inc. as administrative agent and collateral
monitoring agent for such lenders and issuing banks (in such capacity, the "DIP
Agent") and Xxxxxxx Xxxxx Xxxxxx Inc. as lead arranger for such lenders and
issuing banks, have entered into a Secured Super-Priority Debtor In Possession
Credit Agreement, dated as of April 15, 2002 (as such agreement may be amended
or otherwise modified from time to time at the option of the parties thereto,
the "DIP Credit Agreement") under which such lenders and the issuing banks party
thereto have agreed to provide up to $250,000,000 of secured super-priority
debtor-in-possession financing to the Borrowers having the priority set forth in
the DIP Credit Agreement and the Orders; and
WHEREAS, Exide, the Existing Foreign Subsidiaries, the Domestic Non-Debtor,
and Credit Suisse First Boston as administrative agent (in its capacity as
administrative agent, the "Pre-Petition Agent") under the Pre-Petition Credit
Agreement (as defined below), and the financial institutions party to the
Pre-Petition Credit Agreement have entered into a Standstill Agreement, dated as
of April 15, 2002 (as such agreement may be amended or otherwise modified from
time to time (with the consent of the DIP Agent so long as the DIP Lender Claims
are not paid in full) at the option of the parties thereto, the "Standstill
Agreement") under which the Pre-Petition Lenders have agreed to (a) forbear for
an agreed upon period from exercising their individual and collective rights and
remedies against the Existing Foreign Subsidiaries and the Domestic Non-Debtor
as a result of the filing of the Cases and the incurrence of the
Indebtedness under, and the granting of Liens to secure such Indebtedness
pursuant to, the DIP Lender Documents, by the Borrowers and the Guarantors and
(b) defer for an agreed upon period all payments of principal and certain other
amounts owing from time to time under the Amended and Restated Credit and
Guarantee Agreement dated as of September 29, 2000, as amended through the date
hereof, among Exide, certain Subsidiaries of Exide, the Pre-Petition Agent and
the financial institutions party thereto (the "Pre-Petition Credit Agreement");
and
WHEREAS, it is a condition precedent to the effectiveness of the DIP Credit
Agreement that the DIP Agent (for itself and for the benefit of the DIP
Lenders), the Pre-Petition Agent (for itself and for the benefit of each of the
Pre-Petition Lenders), Exide, the Existing Foreign Subsidiaries and the Domestic
Non-Debtor enter into this Intercreditor Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and
obligations herein set forth and for other good and valuable consideration, the
adequacy and receipt of which are hereby acknowledged, and in reliance upon the
representations, warranties and covenants herein contained, the parties hereto,
intending to be legally bound, hereby agree as follows:
Section 1. Definitions. As used in this Intercreditor Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and the plural form of the terms indicated) and
capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the DIP Credit Agreement:
"Additional Standstill Lenders' Liens" shall have the meaning set forth in
the Standstill Agreement.
"Bankruptcy Court" shall have the meaning set forth in the recitals hereto.
"Borrowers" shall have the meaning set forth in the recitals hereto.
"Cases" shall have the meaning set forth in the recitals hereto.
"Citicorp" shall mean Citicorp USA, Inc. or any of its affiliates.
"Collateral Agency Agreement" shall mean the Collateral Agency Agreement
dated as of April 15, 2002 among the DIP Agent, the Pre-Petition Agent, and the
Collateral Agent.
"Collateral Agent" shall mean Citicorp as Collateral Agent under the
Collateral Agency Agreement.
"Common Collateral" shall mean all of the assets of the Existing Foreign
Subsidiaries and the Domestic Non-Debtor whether real, personal or mixed,
constituting both DIP Lender Collateral and Pre-Petition Lender Collateral.
"Common Collateral Documents" shall mean all agreements and documents that
create or purport to create a security interest in Common Collateral for the
benefit of the DIP Lenders and/or the Pre-Petition Lenders, in each case, as
amended, supplemented or otherwise modified from time to time.
"Comparable Pre-Petition Lender Collateral Document" means, with respect to
any Common Collateral, the Pre-Petition Lender Collateral Document that purports
to create a
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security interest in such Common Collateral to secure the Non-Stayed
Pre-Petition Lender Claims.
"DIP Agent" shall include, in addition to the DIP Agent referred to in the
recitals hereto, the then acting collateral agent for the DIP Lenders (or if
there is more than one agent, a majority of them) under the DIP Lender Documents
and any successor thereto exercising substantially the same rights and powers,
or if there is no acting DIP Agent under the DIP Credit Agreement, the Requisite
DIP Lenders.
"DIP Credit Agreement" shall have the meaning set forth in the recitals
hereto.
"DIP Lender Claims" shall mean (a) all Indebtedness, obligations and other
liabilities (contingent or otherwise) of the Borrowers, the Domestic Guarantors,
the Existing Foreign Subsidiaries and the Domestic Non-Debtor arising under or
with respect to the DIP Lender Documents, (b) all interest, costs, expenses,
fees, reimbursements, indemnities and other similar amounts owing by any of them
pursuant to any of the DIP Lender Documents and (c) to the extent not prohibited
by the Pre-Petition Credit Agreement, any amounts advanced by any of the DIP
Lenders to acquire, pay or otherwise satisfy, discharge or reduce any claim
(other than a Pre-Petition Lender Claim) secured by a Lien on the DIP Lender
Collateral which is senior to a Lien granted to the DIP Lenders pursuant to the
DIP Lender Documents. To the extent any payment with respect to the DIP Lender
Claims (whether by or on behalf of any Existing Foreign Subsidiary, any
Borrower, any Domestic Guarantor or the Domestic Non-Debtor, as proceeds of
security, enforcement of any right of setoff or otherwise) is (i) declared to be
fraudulent or preferential in any respect, (ii) set aside or (iii) required to
be paid to a debtor in possession, trustee, receiver or similar Person, then the
obligation or part thereof originally intended to be satisfied shall be deemed
to be reinstated and outstanding as if such payment had not occurred.
"DIP Lender Collateral" shall mean all of the assets of the Existing
Foreign Subsidiaries and the Domestic Non-Debtor, whether real, personal or
mixed, in which the DIP Lenders or the DIP Agent or any of them now or hereafter
holds, directly or indirectly, a Lien as security for any DIP Lender Claim.
"DIP Lender Collateral Documents" shall mean the DIP Credit Agreement, the
Collateral Agency Agreement, the Deposit Account Control Agreements, the Blocked
Account Letters, the Intellectual Property Security Agreements, the Intercompany
Collateral Documents, the Direct Foreign Guaranty Collateral Documents, and any
other document or instrument executed by any Existing Foreign Subsidiary or the
Domestic Non-Debtor pursuant to which a Lien is granted securing, directly or
indirectly, the DIP Lender Claims, as the foregoing documents or instruments may
be amended or modified from time to time.
"DIP Lender Documents" shall mean the DIP Credit Agreement, the DIP Lender
Collateral Documents and each of the other Loan Documents, and any and all other
documents and instruments evidencing any other obligation under the DIP Credit
Agreement, the Intercompany Notes and Foreign Guaranties, and any other related
document or instrument executed or delivered pursuant to any DIP Lender Document
at any time or otherwise evidencing any DIP Lender Claims, as any such document
or instrument may from time to time be amended or otherwise modified.
"DIP Lenders" shall mean the Persons holding DIP Lender Claims, including,
without limitation, the DIP Agent.
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"Disbursement Condition" means the following condition: the DIP Agent, on
behalf of the DIP Lenders, shall have used commercially reasonable best efforts
(in accordance with standards customarily employed by commercial banks in the
United States), for a period of six (6) months after the Scheduled Termination
Date, to satisfy the DIP Lender Claims from the proceeds of Collateral (as
defined in the DIP Credit Agreement) in accordance with the terms of the DIP
Credit Agreement and the Orders.
"Domestic Guarantor" shall have the meaning set forth in the recitals.
"Domestic Non-Debtor" shall have the meaning set forth in the preamble.
"Domestic Non-Filing Entities" shall mean the Domestic Non-Debtor, Xxxxx
Metals Co., Refined Metals Corporation and Exide U.S. Funding Corporation.
"Escrow Account" shall mean each escrow account established for the deposit
of proceeds of Foreign Asset Sales pursuant to this Intercreditor Agreement.
"Escrow Agent" shall mean Citicorp. as Escrow Agent under Section 7 herein.
"Existing Borrower" shall mean each Subsidiary of Exide that is a borrower
under the Pre-Petition Credit Agreement.
"Existing Foreign Borrowing Subsidiaries" shall mean those Existing Foreign
Subsidiaries that are "Borrowing Subsidiaries" as such term is defined in the
Standstill Agreement.
"Existing Foreign Subsidiaries" shall have the meaning set forth in the
preamble.
"Existing Foreign Subsidiary Guarantor" shall mean those Existing Foreign
Subsidiaries that are "Foreign Subsidiary Guarantors" as such term is defined in
the Standstill Agreement.
"Existing Guarantor" shall mean each Subsidiary of Exide that is a
guarantor of the obligations of the Existing Borrowers under the Pre-Petition
Credit Agreement.
"Filing Entities" shall have the meaning set forth in the recitals.
"Foreign Asset Sales" shall mean any Foreign Non-Borrowing Base Asset Sale
and Other Foreign Asset Sale, including, without limitation, an Asset Sale of
the "Principal Properties" (as defined in the DM Notes).
"Insolvency or Liquidation Proceeding" shall mean (a) any voluntary or
involuntary case or proceeding under the Bankruptcy Code or any similar law with
respect to the Domestic Non-Debtor or any Existing Foreign Subsidiary, (b) any
other voluntary or involuntary insolvency, reorganization or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding with respect to the Domestic Non-Debtor or any Existing
Foreign Subsidiary or with respect to any of their respective assets, (c) any
liquidation, dissolution, reorganization or winding up of the Domestic
Non-Debtor or any Existing Foreign Subsidiary whether voluntary or involuntary
and whether or not involving insolvency or bankruptcy or (d) any assignment for
the benefit of creditors or any other marshalling of assets and liabilities of
the Domestic Non-Debtor or any Existing Foreign Subsidiary.
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"Intercreditor Agreement" shall mean this Intercreditor Agreement, as
amended, amended and restated, supplemented or otherwise modified from time to
time in accordance with the terms hereof.
"Non-Stayed Pre-Petition Lender Claims" shall mean all Pre-Petition Lender
Claims arising in respect of the Existing Foreign Subsidiaries and the Domestic
Non-Debtor that are not subject to the automatic stay arising by virtue of
Section 362 of the Bankruptcy Code upon the commencement of the Cases.
"Obligor" shall mean any Person who is or becomes liable for (whether
directly, indirectly, contingently or otherwise), or whose assets (or any of
them) are or become subject to a claim with respect to, any of the DIP Lender
Claims or Pre-Petition Lender Claims.
"payment in full" or "paid in full" shall mean payment in full in cash of
all DIP Lender Claims or, with respect to Letters of Credit outstanding
thereunder, delivery of cash collateral or backstop letters of credit in respect
thereof in compliance with the DIP Credit Agreement, as applicable, in each case
after or concurrently with the termination of all Commitments to extend credit
thereunder.
"Pre-Petition Agent" shall include, in addition to the Pre-Petition Agent
referred to in the recitals hereto, the then acting administrative agent under
the Pre-Petition Credit Agreement and the Standstill Agreement and any successor
thereto exercising substantially the same rights and powers, or if there is no
acting administrative agent under the Pre-Petition Credit Agreement and
Standstill Agreement, the Pre-Petition Lenders holding a majority in principal
amount of Pre-Petition Lender Claims then outstanding.
"Pre-Petition Credit Agreement" shall have the meaning set forth in the
recitals hereto.
"Pre-Petition Lender" shall mean any Person holding Pre-Petition Lender
Claims.
"Pre-Petition Lender Claims" shall mean all Indebtedness, obligations and
other liabilities (contingent or otherwise) of the Existing Borrowers, the
Existing Guarantors, the Existing Foreign Subsidiaries and the Domestic
Non-Debtor arising under or with respect to the Pre-Petition Lender Documents or
any of them, whether stayed or unstayed.
"Pre-Petition Lender Collateral" shall mean all of the assets of the
Existing Foreign Subsidiaries and the Domestic Non-Debtor whether real, personal
or mixed, in which the Pre-Petition Lenders or the Pre-Petition Agent or any of
them now or hereafter holds a Lien as security for any Pre-Petition Lender
Claim.
"Pre-Petition Lender Collateral Documents" shall mean the Pre-Petition
Lender Security Agreements, the Pre-Petition Lender Mortgages, the Collateral
Agency Agreement and any document or instrument executed and delivered pursuant
to any Pre-Petition Lender Document at any time or otherwise pursuant to which a
Lien (including, without limitation, Standstill Lenders' Liens and Additional
Standstill Lenders' Liens) is granted by any Existing Foreign Subsidiary or the
Domestic Non-Debtor to secure the Pre-Petition Lender Claims or under which
rights or remedies with respect to any such Lien are governed, as the same may
be amended or modified from time to time.
"Pre-Petition Lender Documents" shall mean the Pre-Petition Credit
Agreement, the Pre-Petition Lender Collateral Documents, and any other related
document or instrument executed
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and delivered pursuant to any Pre-Petition Lender Document at any time or
otherwise evidencing any Pre-Petition Lender Claims, as the same may be amended
or modified from time to time.
"Pre-Petition Lender Mortgages" shall mean a collective reference to each
mortgage, deed of trust and any other document or instrument under which any
Lien on real property owned by any Existing Foreign Subsidiary or the Domestic
Non-Debtor is granted to secure the Pre-Petition Lender Claims or under which
rights or remedies with respect to any such Liens are governed.
"Pre-Petition Lender Security Agreements" shall mean a collective reference
to (a) the "Security Documents" as such term is defined in the Pre-Petition
Credit Agreement and (b) any other security agreement executed and delivered by
any Existing Foreign Subsidiary in favor of the Pre-Petition Agent to secure the
Pre-Petition Lender Claims including, without limitation, any security agreement
entered into after the date hereof with respect to the Additional Standstill
Lenders' Liens.
"Recovery" shall have the meaning set forth in Section 6.5 hereof.
"Remitted Payment" shall have the meaning set forth in Section 4.4 herein.
"Requisite DIP Lenders" shall mean, with respect to any amendment or
modification of the DIP Credit Agreement, or any termination or waiver of any
provision of the DIP Credit Agreement, or any consent or departure by the
Borrowers therefrom, those DIP Lenders, the approval of which is required under
the DIP Credit Agreement to approve such amendment or modification, termination
or waiver, or consent or departure.
"Standstill Agreement" shall have the meaning set forth in the recitals
hereto.
"Standstill Event" shall have the meaning set forth in the Standstill
Agreement.
"Standstill Lenders" shall have the meaning set forth in the Standstill
Agreement.
"Standstill Lenders' Liens" shall have the meaning set forth in the
Standstill Agreement.
"Standstill Termination Date" shall mean the earlier to occur of (i)
December 18, 2003 and (ii) the date of occurrence of a Standstill Termination
Event.
"Standstill Termination Event" shall have the meaning set forth in the
Standstill Agreement.
"Subordination Fee" shall have the meaning set forth in the Standstill
Agreement.
"Uniform Commercial Code" or "UCC" shall mean the Uniform Commercial Code
of the State of New York, as amended.
Section 2. Subordination.
2.1 Agreement to Subordinate. Each of the Pre-Petition Lenders, Exide,
the Existing Foreign Subsidiaries and the Domestic Non-Debtor agrees that the
Non-Stayed Pre-Petition Lender Claims, whether stayed or unstayed (other than
pursuant to the Cases), and all Liens securing the Non-Stayed Pre-Petition
Lender Claims are and shall be subordinate, to the
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extent and in the manner set forth hereinafter, to the prior payment in full of
all DIP Lender Claims.
2.2 Subordination of Claims. (a) Except as expressly permitted in
Section 2.6, the DIP Lenders shall be entitled to receive payment in full of all
DIP Lender Claims before the Pre-Petition Agent or any Pre-Petition Lender is
entitled to receive any payment of all or any of the Non-Stayed Pre-Petition
Lender Claims, and any payment or distribution of any kind (whether in cash,
property or securities) that otherwise would be payable or deliverable upon or
with respect to the Non-Stayed Pre-Petition Lender Claims (including any payment
that may be payable by reason of any other Indebtedness of any Existing Foreign
Subsidiary or the Domestic Non-Debtor being subordinated to payment of the
Non-Stayed Pre-Petition Lender Claims) shall be paid or delivered, as the case
may be, directly to the DIP Agent for the account of the DIP Lenders for
application (in the case of cash) to, or as collateral (in the case of non-cash
property or securities) to be held in accordance with the DIP Lender Documents
for, the payment or prepayment of the DIP Lender Claims in accordance with
Section 4.
(b) If any Event of Default shall have occurred and be continuing,
then thereafter, unless and until such Event of Default shall have been cured,
waived or otherwise ceases to exist, no payment shall be made by or on behalf of
any Existing Foreign Subsidiary, the Domestic Non-Debtor or any Obligor for or
on account of any Non-Stayed Pre-Petition Lender Claims and neither the
Pre-Petition Agent nor any Pre-Petition Lender shall take or receive from any
Existing Foreign Subsidiary, the Domestic Non-Debtor or any Obligor, directly or
indirectly, in cash or other property or by set-off, counterclaim or in any
other manner, including, without limitation, from or by way of realization of
collateral, payment of all or any of the Non-Stayed Pre-Petition Lender Claims
unless and until the DIP Lender Claims shall have been paid in full.
2.3 Lien Priorities. Notwithstanding the date, time, manner or order
of grant, attachment or perfection of any Liens granted to the Pre-Petition
Agent or the Pre-Petition Lenders on the Common Collateral or of any Liens
granted to the DIP Agent, the DIP Lenders or to the Collateral Agent, on the
Common Collateral and notwithstanding any provision of the UCC, any applicable
law in any jurisdiction, the Pre-Petition Lender Documents, the DIP Lender
Documents or any other circumstance whatsoever, the Pre-Petition Agent, on
behalf of itself and each of the Pre-Petition Lenders, hereby agrees that:
(a) any Lien on the Common Collateral securing the DIP Lender Claims
now or hereafter held by the DIP Agent or the DIP Lenders (including any
proceeds held by the Escrow Agent and any Lien held by the Collateral Agent for
the benefit of the DIP Lenders) shall be senior and prior to any Lien on the
Common Collateral securing the Non-Stayed Pre-Petition Lender Claims; and
(b) any Lien on the Common Collateral now or hereafter held by the
Pre-Petition Agent or the Pre-Petition Lenders regardless of how acquired,
whether by grant, statute, operation of law, subrogation or otherwise, shall be
junior in all respects to all Liens on the Common Collateral securing the DIP
Lender Claims.
All Liens on the Common Collateral securing the DIP Lender Claims shall be and
remain senior to all Liens on the Common Collateral securing the Non-Stayed
Pre-Petition Lender Claims for all purposes, whether or not such Liens securing
the DIP Lender Claims are junior to any Lien securing any other obligation of
any Existing Foreign Subsidiary or the Domestic Non-Debtor.
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2.4 Prohibition on Contesting Liens. Each of (i) the Pre-Petition
Agent, for itself and on behalf of each Pre-Petition Lender, and (ii) the DIP
Agent, for itself and on behalf of each DIP Lender, agrees that it shall not
(and hereby waives any right to) contest or support any other Person in
contesting, in any proceeding (including, without limitation, any Insolvency or
Liquidation Proceeding), the priority, validity or enforceability of a Lien held
by the DIP Lenders in the DIP Lender Collateral or by the Pre-Petition Lenders
in the Common Collateral, as the case may be.
2.5 No New Liens. So long as the DIP Lender Claims have not been paid
in full, the parties hereto agree that after the date hereof, except as may be
necessary to maintain and preserve valid and perfected Liens in favor of the
Pre-Petition Lenders in effect immediately prior to the Closing Date, in no
event shall the Pre-Petition Agent or any Pre-Petition Lender be granted or
possess any Lien on any assets of any Existing Foreign Subsidiary or the
Domestic Non-Debtor securing the Non-Stayed Pre-Petition Claims that are not
also subject to the first priority Lien of the DIP Lenders under the DIP Lender
Documents. Unless otherwise approved by the DIP Agent, each of the Existing
Foreign Subsidiaries and the Domestic Non-Debtor agrees not to grant any Lien
(including, without limitation, the Additional Standstill Lenders' Liens) on any
of its assets, or permit any Subsidiary of the Existing Foreign Subsidiaries and
the Domestic Non-Debtor to xxxxx x Xxxx on any of its assets, in favor of the
Pre-Petition Agent or the Pre-Petition Lenders unless it, or such Subsidiary,
has granted a senior Lien on such assets in favor of the Collateral Agent (for
the benefit of the DIP Lenders), the DIP Agent or the DIP Lenders having
priority over the Lien securing the Non-Stayed Pre-Petition Lender Claims.
2.6 Permitted Payments. Section 2.1 and Section 2.2 of this
Intercreditor Agreement shall not prohibit the payment by the Existing Foreign
Borrowing Subsidiaries (and, to the extent not paid by any Existing Foreign
Borrowing Subsidiary, the other Existing Foreign Subsidiary Guarantors) and the
receipt by the Pre-Petition Lenders of scheduled monthly payments of interest
and letter of credit and other fees, including without limitation, professional
fees, due from the Existing Foreign Borrowing Subsidiaries under the
Pre-Petition Credit Agreement in the manner and to the extent set forth in
Section 4 of the Standstill Agreement and in the Orders so long as (other than
in the case of professional fees) no Default or Event of Default has occurred
and is continuing (or would result after giving effect to any such payments) and
the Pre-Petition Agent has received notice (which need not be in writing) of
such Default or Event of Default; provided that under no circumstances shall the
Subordination Fee be payable to the Pre-Petition Lenders until the DIP Lender
Claims have been paid in full.
Nothing contained in this Agreement is intended to or shall impair, as
among the Existing Foreign Subsidiaries and the Pre-Petition Lenders, the
obligation of the Existing Foreign Subsidiaries, which is absolute and
unconditional, to pay to the Pre-Petition Lenders the Pre-Petition Lender Claims
as and when the same shall become due and payable in accordance with the terms
thereof, or is intended to or shall affect the relative rights of the
Pre-Petition Lenders and creditors of the Existing Foreign Subsidiaries other
than the DIP Lenders, nor shall anything herein prevent the Pre-Petition Lenders
from exercising all remedies otherwise permitted by applicable law upon default,
subject in each case to the rights, if any, of the DIP Lenders set forth herein
and the Standstill Agreement.
The failure to make a payment on account of principal of, premium, if
any, or interest on the Pre-Petition Lender Claims by reason of any provision of
this Agreement will not be construed as preventing the occurrence of a
Standstill Event under the Standstill Agreement.
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Section 3. Enforcement.
3.1 Exercise of Remedies. (a) Until the earlier to occur of (x) the
payment in full of DIP Lender Claims and (y) the Standstill Termination Date,
whether or not any Insolvency or Liquidation Proceeding has been commenced by or
against any Existing Foreign Subsidiary or the Domestic Non-Debtor:
(i) the Pre-Petition Agent and the Pre-Petition Lenders will
not: exercise or seek to exercise any rights or remedies
(including setoff) with respect to any Pre-Petition Lender
Collateral; institute any action or proceeding with respect to
such rights or remedies in respect of any Pre-Petition Lender
Collateral, including, without limitation, any action of
foreclosure, or contest, protest or object to any foreclosure
proceeding or action brought by the Collateral Agent, the DIP
Agent or any DIP Lender except to the extent such foreclosure is
not conducted in a commercially reasonable manner; exercise any
right under any stock or bond power, lockbox agreement, blocked
account agreement, control agreement, landlord waiver or bailee's
letter or similar agreement or arrangement to which the
Pre-Petition Agent or any Pre-Petition Lender is a party; or any
other exercise by any such party, of any rights and remedies
relating to the Common Collateral under the DIP Lender Documents
or otherwise or any release of any or all of the Pre-Petition
Lender Collateral for any purpose; or object to the forbearance
by the DIP Lenders from bringing or pursuing any foreclosure
proceeding or action or any other exercise of any rights or
remedies relating to the Common Collateral; provided, however,
that notwithstanding the foregoing, (A) the Pre-Petition Lenders
may (1) ask or make demand in respect of payments permitted to be
received pursuant to the Standstill Agreement and (2) sell,
assign or otherwise transfer any and all of the Pre-Petition
Lender Claims and their rights relating thereto, subject to the
provisions of this Agreement, and (B) if a Standstill Termination
Event with respect to Pre-Petition Lender Claims shall have
occurred and be continuing, the Pre-Petition Lenders may (1) file
and prosecute a lawsuit to collect, or otherwise enforce, subject
to the provisions of this Agreement and the Standstill Agreement,
any and all of the rights in respect of the Pre-Petition Lender
Claims, (2) commence, or join with any other creditor in
commencing, any proceeding against any Existing Foreign
Subsidiary, (3) exercise the rights of the holders of the
Pre-Petition Claims in any such proceeding, subject to the terms
of this Agreement, and (4) realize upon and exercise any and all
remedies in respect of any assets securing the Pre-Petition
Lender Claims following, in the case of any assets of the
Existing Foreign Subsidiaries upon which the Pre-Petition Agent
has a valid, perfected and enforceable lien (x) written notice to
the DIP Agent, and (y) the expiration of 180 days, unless prior
to the end of such 180-day period, the DIP Agent shall have
commenced and be pursuing enforcement of its liens on such assets
in a commercially reasonable manner (it being recognized that the
DIP Agent shall have no duties or obligations to Pre-Petition
Lenders in so doing, other than as expressly set forth herein);
and
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(ii) the DIP Agent and the DIP Lenders (acting directly or
through the Collateral Agent) shall have the exclusive right to
enforce rights, exercise remedies (including, without limitation,
setoff and the right to credit bid their debt) and make
determinations regarding disposition of the Common Collateral and
the release of Common Collateral in a foreclosure or enforcement
action under the Uniform Commercial Code (or similar law of any
applicable jurisdiction) without any consultation with or the
consent of the Pre-Petition Agent or any Pre-Petition Lender;
provided, however, (A) that in any Insolvency or Liquidation
Proceeding commenced by or against any Existing Foreign
Subsidiary or the Domestic Non-Filing Entity, the Pre-Petition
Agent may file a claim or statement of interest with respect to
the Non-Stayed Pre-Petition Lender Claims, and (B) the
Pre-Petition Agent may take any action not adverse to the DIP
Agent or the DIP Lenders in order to preserve or protect its
rights in the Pre-Petition Collateral.
In exercising rights and remedies with respect to the Common Collateral, the DIP
Agent and the DIP Lenders may enforce the provisions of the DIP Lender Documents
and exercise remedies thereunder, all in such order and in such manner as they
may determine in the exercise of their sole discretion exercised using standards
of commercial reasonableness. Such exercise and enforcement shall include,
without limitation, the rights of an agent appointed by them to sell or
otherwise dispose of the Common Collateral upon foreclosure, to incur expenses
in connection with such sale or disposition, and to exercise all the rights and
remedies of a secured lender under the Uniform Commercial Code (or similar law
of any applicable jurisdiction) and of a secured creditor under the Bankruptcy
Code (or similar laws of any applicable jurisdiction).
(b) The Pre-Petition Agent, on behalf of itself and each of the
Pre-Petition Lenders, agrees not to take or receive from or on behalf of any
Existing Foreign Subsidiary, the Domestic Non-Debtor or any Obligor, directly or
indirectly, in cash or other property or by setoff, counterclaim or in any other
manner (whether pursuant to any enforcement, collection, execution, levy or
foreclosure proceeding or otherwise), any Pre-Petition Lender Collateral or any
proceeds of Pre-Petition Lender Collateral, without turning over such cash or
other property to the Collateral Agent or the DIP Agent unless and until all DIP
Lender Claims have been paid in full.
(c) Subject to the provisos in Section 3.1(a)(i) and (ii) above, the
Pre-Petition Agent, for itself or on behalf of each of the Pre-Petition Lenders,
agrees that the Pre-Petition Agent and the Pre-Petition Lenders will not at any
time take any action that would hinder any exercise of remedies undertaken by
the Collateral Agent or the DIP Agent under the DIP Lender Documents, including
any sale, lease, exchange, transfer or other disposition of the Common
Collateral, whether by foreclosure or otherwise.
3.2 Cooperation. Subject to the proviso in Section 3.1(a)(i) and (ii)
above, the Pre-Petition Agent, on behalf of itself and each of the Pre-Petition
Lenders, agrees that, unless and until the DIP Lender Claims have been paid in
full or the Standstill Termination Date has occurred, it will not commence, or
join with any Person (other than the DIP Lenders and the DIP Agent upon the
request thereof) in commencing any enforcement, collection, execution, levy or
foreclosure action or proceeding with respect to any Lien in respect of any
Pre-Petition Lender Collateral held by it under any of the Pre-Petition Lender
Documents or otherwise for a period of 180 days following written notice to the
DIP Agent to commence such action (and in respect of which the DIP Agent has
elected not to proceed). Following the Standstill Termination Date, in the event
the DIP Lender Claims shall not have been paid in full, the Pre-Petition Agent
shall
10
apply the proceeds of any such enforcement, collection, execution, levy or
foreclosure action or proceeding as required by Section 4.
Section 4. Payments.
4.1 Application of Proceeds of Common Collateral. As long as the DIP
Lender Claims have not been paid in full:
(a) the cash proceeds of Common Collateral, including any such
proceeds received in connection with the sale of, or collection on, such Common
Collateral upon the exercise of any remedies under the DIP Lender Documents (or,
following the Standstill Termination Date, the Pre-Petition Lender Documents),
shall be applied:
(i) First, to the payment of all fees, costs and expenses,
including without limitation all attorney fees, disbursements and
indemnification payments of the DIP Agent, the Collateral Agent
and the Escrow Agent incurred in connection with enforcement of
the Common Collateral Documents and otherwise administering this
Intercreditor Agreement and the Common Collateral; and
(ii) Second, by the DIP Agent to the DIP Lender Claims in such
order as specified in the DIP Credit Agreement until such DIP
Lender Claims have been paid in full.
Upon payment in full of the DIP Lender Claims, the DIP Agent or the Collateral
Agent, as the case may be, shall deliver to the Pre-Petition Agent (or to such
other Person as any court of competent jurisdiction may otherwise direct) any
cash proceeds of Common Collateral held by it;
(b) the Net Cash Proceeds of Foreign Asset Sales shall be deposited
in an Escrow Account and be subject to and distributed in accordance with the
terms of Section 4.3 of this Intercreditor Agreement; and
(c) non-cash proceeds of Common Collateral shall be held as
collateral in accordance with the terms of the DIP Lender Documents and the
Collateral Agency Agreement. Upon payment in full of the DIP Lender Claims, the
DIP Agent or the Collateral Agent, as the case may be, shall deliver any such
non-cash proceeds to the Pre-Petition Agent (or to such other Person as a court
of competent jurisdiction may otherwise direct) in the same form as received
(with any necessary endorsements).
4.2 Payments Over. Except as provided in Section 4.3 below, until the
DIP Lender Claims have been paid in full, any Pre-Petition Lender Collateral or
proceeds thereof received by the Pre-Petition Agent or any Pre-Petition Lender
shall be segregated and held in trust for and forthwith paid over or delivered
upon request to the Collateral Agent or the DIP Agent for the benefit of the DIP
Lenders in the same form as received (with any necessary endorsements) or as a
court of competent jurisdiction may otherwise direct. Each of the Collateral
Agent and the DIP Agent is hereby authorized to make any such endorsements as
agent for the Pre-Petition Agent or any such Pre-Petition Lender. This
authorization is coupled with an interest and is irrevocable. All proceeds from
Foreign Asset Sales received by the Pre-Petition Agent or any Pre-Petition
Lender shall be segregated and forthwith paid over to the Escrow Agent for
deposit into an Escrow Account. Any proceeds of any Pre-Petition Lender
Collateral
11
received by the Pre-Petition Agent or any Pre-Petition Lender in contravention
of this Intercreditor Agreement shall be immediately paid over to the Collateral
Agent or the DIP Agent.
4.3 Distributions of Proceeds from Foreign Asset Sales.
(a) Until the DIP Lender Claims have been paid in full, any Net Cash
Proceeds received by the Escrow Agent in respect of a Foreign Asset Sale
pursuant to Section 2.9(g) of the DIP Credit Agreement shall be deposited into
an Escrow Account for further application in accordance with this Section 4.3.
(b) Any Net Cash Proceeds of Foreign Asset Sales held in an Escrow
Account shall be applied as follows:
(i) first, all or a portion of such Net Cash Proceeds shall
be released by the Escrow Agent to the DIP Agent within one
Business Day of receipt thereof for application towards the
DIP Lender Claims as required by Section 2.9(h) of the DIP
Credit Agreement; and
(ii) second, any such Net Cash Proceeds remaining after such
application shall, to the extent that the Pre-Petition Lenders
or the DIP Lenders have an interest in or valid claim to such
proceeds pursuant to the Pre-Petition Lender Documents, the
DIP Lender Documents or the Orders, as the case may be
(collectively, "Lender Proceeds") be retained in the Escrow
Account until such time as the Disbursement Condition is
satisfied, at which time all such Lender Proceeds remaining in
the Escrow Account shall be delivered by the Escrow Agent to
the DIP Agent for application by the DIP Agent to the DIP
Lender Claims in accordance with the terms of the DIP Lender
Documents and the Orders; and
(iii) third, upon payment in full of the DIP Lender Claims,
the DIP Agent shall deliver to the Pre-Petition Agent any such
remaining Lender Proceeds held by it (or as a court of
competent jurisdiction may otherwise direct) for application
to the Pre-Petition Lender Claims to the extent of any claims
by the Pre-Petition Lenders in such Lender Proceeds.
Following application to the DIP Lender Claims as required by Section 4.3(b)(i),
any Net Cash Proceeds that are not Lender Proceeds and, following payment in
full of the DIP Lender Claims and the Pre-Petition Lender Claims as required by
Sections 4.3(b)(ii) and (iii), any remaining Lender Proceeds shall be returned
to Exide or such Subsidiary that is entitled to such proceeds (or as Exide or
any court of competent jurisdiction shall direct).
4.4 Subrogation to DIP Lender Claims. If at any time prior to the
payment in full of the DIP Lender Claims, the Pre-Petition Agent, on behalf of
itself and each of the Pre-Petition Lenders, receives any payment with respect
to the Pre-Petition Lender Claims or on account of Pre-Petition Lender
Collateral (whether made directly by any of the Existing Foreign Subsidiaries or
the Domestic Non-Debtor, whether effected by enforcement, collection, execution,
levy, foreclosure, offset, counterclaim or otherwise, and including any such
payments from the Escrow Accounts that are proceeds of Pre-Petition Collateral)
and such payments or proceeds are turned over to the Collateral Agent or to the
DIP Agent on behalf of itself and the
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other DIP Lenders as required by this Intercreditor Agreement (such payment
or proceeds, a "Remitted Payment"), the Pre-Petition Lenders shall be subrogated
to the DIP Lender Claims to the extent of such Remitted Payment and, to the
extent necessary to effect such subrogation, shall be deemed to have purchased a
subordinated participation in the DIP Lender Claims to the extent of such
Remitted Payment. Following payment in full of the DIP Lender Claims, the
Pre-Petition Lenders may, to the fullest extent permitted by law, exercise all
rights of payment (including rights of set-off) with respect to such
participations as if the Pre-Petition Lenders were direct creditors of the
relevant Obligors in the amount of such participations.
Section 5. Other Agreements.
5.1 Releases of Collateral. (a) If in connection with:
(i) the exercise of the DIP Agent's remedies in respect of the
Common Collateral provided for in Section 3.1, including any sale, lease,
exchange, transfer or other disposition of such Common Collateral in
connection with the exercise of foreclosure or other remedies under the
Uniform Commercial Code (or any similar law of any applicable
jurisdiction);
(ii) any sale, lease, exchange, transfer or other disposition of
Common Collateral permitted under the terms of the DIP Credit Agreement,
the Standstill Agreement and the Orders (whether or not an Event of Default
has occurred and is continuing); or
(iii) any agreement between the DIP Agent and any of the Obligors
to release the DIP Agent's Lien on any portion of the Common Collateral,
which release is not otherwise prohibited by the terms of the Pre-Petition
Lender Documents, the Standstill Agreement and the Adequate Protection
Stipulation;
the DIP Agent, for itself or on behalf of any of the DIP Lenders, releases any
of its Liens on any part of the Common Collateral (or any Guarantor from its
obligations under its guaranty of the DIP Lender Claims), the Liens, if any, of
the Pre-Petition Agent, for itself or for the benefit of each of the
Pre-Petition Lenders, on such Common Collateral (and the obligations, if any, of
such Guarantor under its guaranty of the Pre-Petition Lender Claims) shall be
automatically, unconditionally and simultaneously released and the Pre-Petition
Agent, for itself or on behalf of any such Pre-Petition Lender, promptly shall
execute and deliver to the DIP Agent or the applicable Obligor such termination
statements, releases and other documents as the DIP Agent or such Obligor may
request to effectively confirm such release.
(b) The Pre-Petition Agent, for itself and on behalf of each of the
Pre-Petition Lenders, hereby irrevocably constitutes and appoints the DIP Agent,
with full power of substitution, as its true and lawful attorney-in-fact with
full irrevocable power and authority in the place and stead of the Pre-Petition
Agent or in the DIP Agent's own name, from time to time in the DIP Agent's
discretion, for the purpose of carrying out the terms of this Section 5.1, to
take any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Section 5.1, including, without limitation, any financing statements,
endorsements or other instruments or transfer or release; provided that this
Section 5.1 shall not be construed as preventing the Pre-Petition Agent from
asserting any rights to consent to any sale or disposition of Common Collateral
in accordance with the Pre-Petition Lender Documents, the Standstill Agreement
and the Orders.
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5.2 Insurance. Unless and until the DIP Lender Claims are paid in
full, the DIP Agent and the DIP Lenders shall have the sole and exclusive right
to adjust settlement for any insurance policy covering the Common Collateral in
the event of any loss thereunder and to approve any award granted in any
condemnation or similar proceeding affecting the Common Collateral. Unless and
until the DIP Lender Claims are paid in full, all proceeds of any such policy
and any such award if in respect to the Common Collateral shall be paid first to
the DIP Agent for the benefit of the DIP Lenders to the extent required under
the DIP Credit Agreement and second to the Pre-Petition Agent for the benefit of
the Pre-Petition Lenders to the extent required under the applicable
Pre-Petition Lender Documents; and thereafter to the owner of the subject
property or as a court of competent jurisdiction may otherwise direct. If the
Pre-Petition Agent or any Pre-Petition Lender shall, at any time, receive any
proceeds of any such insurance policy or any such award in contravention of this
Intercreditor Agreement, it shall pay such proceeds over to the DIP Agent in
accordance with the terms of Section 4.3.
5.3 Amendments to Documents. Without the prior written consent of the
DIP Agent and the Requisite DIP Lenders, no Pre-Petition Lender Document may be
amended, supplemented or otherwise modified other than amendments that are
purely ministerial in nature or any other non-material amendments that would not
contravene any of the terms of the DIP Lender Documents. The Pre-Petition Agent
agrees that each Pre-Petition Lender Collateral Document shall be deemed to
include, without further amendment, the following language:
Notwithstanding anything herein to the contrary, the liens and security
interests granted to the Pre-Petition Agent and the exercise of any right
or remedy by the Pre-Petition Agent hereunder are subject to the provisions
of the Intercreditor Agreement, dated as of April 15, 2002 (the
"Intercreditor Agreement") among Citicorp USA, Inc. as DIP Agent, Credit
Suisse First Boston as Pre-Petition Agent, Exide Technologies and the
Subsidiaries of Exide party thereto. In the event of any conflict between
the terms of the Intercreditor Agreement and this agreement, the terms of
the Intercreditor Agreement shall govern.
5.4 Bailee for Perfection. (a) The DIP Agent agrees to hold the
Pledged Collateral that is part of the Common Collateral in its possession or
control (or in the possession or control of its agents or bailees) as bailee for
the Pre-Petition Agent and any assignee solely for the purpose of perfecting the
security interest granted in such Pledged Collateral pursuant to the
Pre-Petition Lender Security Agreement, subject to the terms and conditions of
this Section 5.4 and so long as the DIP Agent shall use the same degree of care
with respect thereto as the DIP Agent uses for similar property pledged to the
DIP Agent as collateral for obligations of others owing to the DIP Agent.
(b) The rights of the Pre-Petition Agent shall at all times be
subject to the terms of this Intercreditor Agreement and to the DIP Agent's
rights under the DIP Lender Documents.
(c) The DIP Agent shall have no obligation whatsoever to the
Pre-Petition Agent or any Pre-Petition Lender to assure that the Pledged
Collateral is genuine or owned by Exide or one of its Subsidiaries. The duties
and responsibilities of the DIP Agent under this Section 5.4 shall be limited
solely to holding the Pledged Collateral as bailee for the Pre-Petition Agent
for purposes of perfecting the Lien held by the Pre-Petition Agent.
(d) The DIP Agent shall not have by reason of the Pre-Petition Lender
Security Agreement or this Intercreditor Agreement or any other document a
fiduciary relationship in respect of the Pre-Petition Agent or any Pre-Petition
Lender.
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(e) Upon the payment in full of DIP Lender Claims, the DIP Agent
shall deliver to the Pre-Petition Agent the Pledged Collateral together with any
necessary endorsements (or otherwise allow such DIP Agent to obtain control of
such Pledged Collateral) or as a court of competent jurisdiction may otherwise
direct.
Section 6. Insolvency or Liquidation Proceedings.
6.1 Financing Issues. If any Domestic Non-Filing Entity shall be
subject to any Insolvency or Liquidation Proceeding and the DIP Agent shall
desire to permit the use of cash collateral or to permit such Domestic
Non-Filing Entity to obtain financing under section 363 or section 364 of the
Bankruptcy Code, then the Pre-Petition Agent, on behalf of itself and the
Pre-Petition Lenders, agrees that it will raise no objection to such use or
financing and will not request adequate protection or any other relief in
connection therewith (except to the extent permitted by Section 6.3) and, to the
extent necessary, will subordinate its Liens in the Pre-Petition Lender
Collateral to such financing.
6.2 Relief from the Automatic Stay. The Pre-Petition Agent, on behalf
of itself and the Pre-Petition Lenders, agrees that none of them shall seek
relief from the automatic stay or any other stay that may be imposed in any
jurisdiction in any Insolvency or Liquidation Proceeding in respect of the
Pre-Petition Lender Collateral, without the prior written consent of the DIP
Agent and the Requisite DIP Lenders.
6.3 Adequate Protection. If in any Insolvency or Liquidation
Proceeding of any Domestic Non-Filing Entities, (i) if the DIP Lenders are
granted adequate protection in the form of additional collateral in connection
with any financing or use of its cash collateral under section 363 or section
364 of the Bankruptcy Code, then the Pre-Petition Agent, on behalf of itself or
any of the Pre-Petition Lenders, may seek or request adequate protection in the
form of a replacement Lien on such additional collateral, which Lien is
subordinated to the Liens securing the DIP Lender Claims on the same basis as
the other Liens securing the Non-Stayed Pre-Petition Lender Claims are so
subordinated to the DIP Lender Claims under this Agreement, and (ii) in the
event the Pre-Petition Agent, on behalf of itself and the Pre-Petition Lenders,
seeks or requests adequate protection and such adequate protection is granted in
the form of additional collateral, then the Pre-Petition Agent, on behalf of
itself or any of the Pre-Petition Lenders, agrees that the DIP Agent shall also
be granted a senior Lien on such additional collateral and that any Lien on such
additional collateral securing the Pre-Petition Claims shall be subordinated to
the Liens on such collateral securing the DIP Lender Claims and any other Liens
granted to the DIP Lenders as adequate protection on the same basis as the other
Liens securing the Pre-Petition Claims are so subordinated to such DIP Lender
Claims under this Agreement.
6.4 No Waiver. Nothing contained herein shall prohibit or in any way
limit the DIP Agent or any DIP Lender from objecting in any Insolvency or
Liquidation Proceeding or otherwise to any action taken by the Pre-Petition
Agent or any of the Pre-Petition Lenders, including, without limitation, the
seeking by the Pre-Petition Agent or any Pre-Petition Lender of adequate
protection or the asserting by the Pre-Petition Agent or any Pre-Petition Lender
of any of its rights and remedies under the Pre-Petition Lender Documents or
otherwise.
6.5 Preference Issues. If any DIP Lender is required in any Insolvency
or Liquidation Proceeding or otherwise to turn over or otherwise pay to the
estate of any Existing Foreign Subsidiary or the Domestic Non-Debtor any amount
(a "Recovery"), then the DIP Lender Claims shall be reinstated to the extent of
such Recovery and the DIP Lenders shall be entitled to receive payment in full
of all such recovered amounts. If this Intercreditor Agreement shall have
15
been terminated prior to such Recovery, this Agreement shall be reinstated in
full force and effect, and such prior termination shall not diminish, release,
discharge, impair or otherwise affect the obligations of the parties hereto.
Section 7. Foreign Asset Sales Escrow Arrangement.
7.1 Appointment and Authorization. Each of the DIP Agent, for itself
and on behalf of the DIP Lenders, and the Pre-Petition Agent, for itself and on
behalf of each of the Pre-Petition Lenders, hereby appoints Citicorp as Escrow
Agent, and authorizes the Escrow Agent to execute, deliver and perform as their
agent under this Intercreditor Agreement, to take such action as agent on its
behalf and to exercise such powers under this Intercreditor Agreement as are
delegated to the Escrow Agent by the terms hereof or thereof, together with all
such powers as are reasonably incidental thereto.
(a) As to any matters not expressly provided for by this Intercreditor
Agreement (including enforcement or collection), the Escrow Agent shall not be
required to exercise any discretion or take any action; provided, however, that
the Escrow Agent shall not be required to take any action which (i) the Escrow
Agent in good faith believes exposes it to personal liability unless the Escrow
Agent receives an indemnification satisfactory to it with respect to such action
or (ii) is contrary to this Intercreditor Agreement or applicable law.
(b) In performing its functions and duties hereunder, the Escrow Agent
is acting solely on behalf of the DIP Lenders and the Pre-Petition Lenders and
its duties are entirely administrative in nature. The Escrow Agent does not
assume and shall not be deemed to have assumed any obligation other than as
expressly set forth herein or any other relationship as the agent, fiduciary or
trustee of or for any DIP Lender, Pre-Petition Lender or any holder of any other
Indebtedness. The Escrow Agent may perform any of its duties hereunder by or
through its agents or employees.
7.2 Establishment of Escrow Account. The Escrow Agent, for the benefit
of the DIP Lender and the Pre-Petition Lenders, shall establish in such
jurisdictions as may be agreed between the DIP Agent and the Pre-Petition Agent
and maintain one or more segregated accounts (collectively, the "Escrow
Accounts"), which shall bear designation clearly indicating that funds deposited
therein are held for the benefit of the DIP Lenders and the Pre-Petition Lenders
and the Existing Foreign Subsidiaries, and shall deposit therein all cash
proceeds received by it pursuant to Section 4.3 in its capacity as Escrow Agent.
The Escrow Agent shall have no beneficial interest in the Escrow Accounts.
7.3 Rights of Citicorp and Affiliates. Citicorp, in its capacity as a
DIP Lender hereunder, shall have the same rights and powers hereunder as any
other DIP Lender and may exercise or refrain from exercising the same as though
it were not the Escrow Agent. Citicorp and its Affiliates may (without having to
account therefor to any DIP Lender or Pre-Petition Lender) accept deposits from,
lend money to, and generally engage in any kind of banking, trust, financial
advisory or other business with Exide or any Subsidiary or Affiliate of Exide as
if it were not acting as Escrow Agent hereunder, and may accept fees and other
consideration therefor without having to account for the same to the DIP Lenders
or the Pre-Petition Lenders.
7.4 Scope of Duties; Liability. Subject to the terms hereof, the
Escrow Agent agrees to receive, hold and administer the proceeds of the Foreign
Asset Sales and to apply all such proceeds, in such manner and on such terms as
are set forth herein, for the benefit of the DIP
16
Lenders and the Pre-Petition Lenders as provided herein, and otherwise to
perform its duties and obligations as Escrow Agent hereunder in accordance with
the terms hereof ; provided, however, the Escrow Agent shall have no duties or
responsibilities except those expressly set forth in this Intercreditor
Agreement, and shall not, by reason of this Intercreditor Agreement, have a
fiduciary relationship with any DIP Lender or any Pre-Petition Lender, and no
implied covenants, responsibilities, duties, obligations or liabilities shall be
read into this Intercreditor Agreement or otherwise exist against the Escrow
Agent. Neither the Escrow Agent nor any of its Affiliates or any of the
respective directors, officers, agents or employees of the Escrow Agent or any
such Affiliate shall be liable for any action taken or omitted to be taken by
it, him, her or them under or in connection with this Intercreditor Agreement,
except for its, his, her or their own gross negligence or willful misconduct.
Without limiting the foregoing, the Escrow Agent (a) may consult with legal
counsel, independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (b)
makes no warranty or representation to any DIP Lender or any Pre-Petition Lender
and shall not be responsible to any DIP Lender or any Pre-Petition Lender for
any statements, warranties or representations made by or on behalf of the
Domestic Non-Debtor or any Existing Foreign Subsidiary in or in connection with
this Intercreditor Agreement or any of the other DIP Lender Documents or
Pre-Petition Lender Documents; (c) shall not have any duty to ascertain or to
inquire either as to the performance or observance of any of the terms,
covenants or conditions of this Intercreditor Agreement or any of the other DIP
Lender Documents or Pre-Petition Lender Documents or the financial condition of
the Domestic Non-Debtor or any Existing Foreign Subsidiary or any Obligor, or
the existence or possible existence of any default or event of default under any
DIP Lender Documents or Pre-Petition Lender Documents or any Event of Default;
(d) shall not be responsible to any DIP Lender or any Pre-Petition Lender for
the due execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Intercreditor Agreement or any of the other Common Collateral
Documents or any other instrument or document furnished pursuant hereto or
thereto or as to the creation, perfection or priority of, any lien on or
security interest in any DIP Lender Collateral or Pre-Petition Lender
Collateral.
7.5 Reliance. The Escrow Agent shall be entitled to rely upon any
certificate, notice, consent or other instrument in writing (including any
facsimile transmission) believed by the Escrow Agent to be genuine and correct
and to have been signed or sent or made by or on behalf of a proper person.
7.6 Knowledge of Certain Events. The Escrow Agent shall not be deemed
to have knowledge of the occurrence of an Event of Default unless and until it
has received written notice from the DIP Agent specifying such event and stating
that such Notice is a "Notice under the Intercreditor and Subordination
Agreement".
7.7 Non-Reliance by Lenders. The Escrow Agent shall not be required to
keep itself informed as to the performance or observance by the Domestic
Non-Debtor or any Existing Foreign Subsidiary of this Intercreditor Agreement,
the Common Collateral Documents, the DIP Lender Documents, the Pre-Petition
Lender Documents or any other documents referred to or provided for herein or to
inspect the properties or books of the Domestic Non-Debtor or any Existing
Foreign Subsidiary. The Escrow Agent shall have no duty or responsibility to
provide anyone with any information concerning the affairs, financial condition
or business of Exide or any of Subsidiary of Exide which may come into the
possession of the Escrow Agent.
7.8 Indemnification. Each of the DIP Lenders and the Pre-Petition
Lenders agree to indemnify the Escrow Agent (to the extent not reimbursed by
Exide, the Domestic Non-
17
Debtor or the Existing Foreign Subsidiaries), ratably according to the
respective principal amounts of the DIP Lender Claims and Pre-Petition Claims
then outstanding to each of them, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Escrow Agent in any way relating to or
arising out of this Intercreditor Agreement or the transactions contemplated
hereby or any action taken or omitted by the Escrow Agent under this
Intercreditor Agreement, provided, however, that no DIP Lender or Pre-Petition
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Escrow Agent's gross negligence or willful misconduct and in
no case shall any DIP Lender or Pre-Petition Lender be liable for an amount that
exceeds the Indebtedness owed to each of them, respectively, under the DIP
Credit Agreement or Pre-Petition Credit Agreement, respectively. Each of the DIP
Lenders and the Pre-Petition Lenders agrees to reimburse the Escrow Agent
promptly upon demand for its ratable share of any liabilities (including
reasonable counsel fees) incurred by the Escrow Agent in connection with the
preservation of any rights of the Escrow Agent or the DIP Lenders and the
Pre-Petition Lenders under, or the enforcement of, or legal advice in respect of
rights or responsibilities under, this Intercreditor Agreement to the extent
that the Escrow Agent is not reimbursed for such expenses by Exide, the Domestic
Non-Debtor or the Existing Foreign Subsidiaries, and the Escrow Agent shall
subsequently reimburse such Lender to the extent it is subsequently reimbursed
by Exide, the Domestic Non-Debtor or the Existing Foreign Subsidiaries.
7.9 Resignation. The Escrow Agent independently may resign as such at
any time upon thirty (30) days' prior written notice to each of the DIP Agent
and the Pre-Petition Agent. In the event of any such resignation, the DIP
Lenders and Pre-Petition Lenders holding in the aggregate a majority of the DIP
Lender Claims and the Pre-Petition Claims (the "Majority Lenders") shall, by an
instrument in writing delivered to the Escrow Agent appoint a successor, which
shall be a financial institution organized under the laws of the United States
or any State thereof and having a combined capital and surplus of at least
$100,000,000 or any financial institution that is a subsidiary of a company
having a combined capital and surplus of at least $100,000,000 so long as such
company unconditionally guarantees the obligations of such financial institution
as Escrow Agent hereunder. Prior to any successor being so appointed and
accepting such appointment, the Escrow Agent may appoint a temporary successor
to act until such appointment by the Majority Lenders is made and accepted. If
no successor is appointed as provided above by the 30th day after the date such
notice of resignation was given, such resignation shall not become effective and
the Escrow Agent or such temporary successor, if any, shall thereafter continue
to perform all the duties of the Escrow Agent hereunder until such time, if any,
as the Majority Lenders appoint a successor Escrow Agent as provided above,
whereupon such resignation shall become effective. Any successor to the Escrow
Agent shall execute and deliver to the DIP Lenders and the Pre-Petition Lenders
an instrument accepting such appointment and thereupon such successor, without
further act, deed, conveyance or transfer shall become vested with all of the
properties, rights, interests, powers, authorities and obligations of its
predecessor hereunder with like effect as if originally named as the Escrow
Agent, and the Escrow Agent ceasing to act shall be discharged therefrom. Upon
request of such successor, the Escrow Agent ceasing to act shall execute and
deliver such instruments of conveyance, assignment and further assurance and do
such other things as may reasonably be required for more fully and certainly
vesting and confirming in such successor all such properties, rights, interests,
powers, authorities and obligations. The provisions of this Section 7 shall
thereafter remain effective for the Escrow Agent ceasing to act with respect to
any actions taken or omitted to be taken by such person while acting as the
Escrow Agent.
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7.10 Concerning the Escrow Accounts. Each DIP Lender and Pre-Petition
Lender agrees that any action taken by the Escrow Agent in accordance with the
provisions of this Intercreditor Agreement, and the exercise by the Escrow Agent
of the powers set forth herein, together with such other powers as are
reasonably incidental thereto, shall be authorized and binding upon all of the
DIP Lenders and the Pre-Petition Lenders.
7.11 Exide has agreed to pay to the Escrow Agent certain fees and
expenses at the times and in the amounts as set forth in a separate fee letter.
Section 8. Reliance; Waivers; etc.
8.1 Reliance. The execution and delivery by the DIP Lenders of the DIP
Lender Documents, all loans and other extensions of credit made or deemed made
on and after the date hereof by the DIP Lenders to the Borrowers, and their
consent to the grant to the Pre-Petition Agent on behalf of each of the
Pre-Petition Lenders of a junior Lien on the Common Collateral not previously
granted to the Pre-Petition Agent or the Pre-Petition Lenders shall be deemed to
have been given and made in reliance upon this Intercreditor Agreement. The
Pre-Petition Agent, on behalf of itself and each of the Pre-Petition Lenders,
acknowledges that it and the Pre-Petition Lenders have, independently and
without reliance on the DIP Agent or any DIP Lender or any other Person, and
based on documents and information deemed by them appropriate, made their own
credit analysis and decision to enter into the Standstill Agreement, this
Intercreditor Agreement and the transactions contemplated hereby and thereby and
they will continue to make their own credit decision in taking or not taking any
action under the Standstill Agreement or this Intercreditor Agreement.
8.2 No Warranties or Liability. The Pre-Petition Agent, on behalf of
itself and each of the Pre-Petition Lenders, acknowledges and agrees that each
of the DIP Agent and the DIP Lenders have made no express or implied
representation or warranty, including, without limitation, with respect to the
execution, validity, legality, completeness, collectibility or enforceability of
any of the DIP Lender Documents. The DIP Lenders will be entitled to manage and
supervise their respective loans and extensions of credit to the Borrowers in
accordance with law and as they may otherwise, in their sole discretion, deem
appropriate, and the DIP Lenders may manage their loans and extensions of credit
without regard to any rights or interests that the Pre-Petition Agent or any of
the Pre-Petition Lenders have in the Common Collateral or otherwise, except as
otherwise provided in this Intercreditor Agreement. Neither the DIP Agent nor
any DIP Lender shall have any duty to the Pre-Petition Agent or any of the
Pre-Petition Lenders to act or refrain from acting in a manner which allows, or
results in, the occurrence or continuance of an event of default or default
under any agreements with the Borrowers (including, without limitation, the
Pre-Petition Lender Documents), regardless of any knowledge thereof which they
may have or be charged with.
8.3 No Waiver of Subordination Provisions and Lien Priorities. (a) No
right of the DIP Lenders, the DIP Agent or any of them to enforce any provision
of this Intercreditor Agreement shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of any Obligor or by any act
or failure to act by any DIP Lender or the DIP Agent, or by any noncompliance by
any other Person with the terms, provisions and covenants of this Intercreditor
Agreement, any of the DIP Lender Documents or any of the Pre-Petition Lender
Documents, regardless of any knowledge thereof which the DIP Agent or the DIP
Lenders, or any of them, may have or be otherwise charged with.
19
(b) Without in any way limiting the generality of the foregoing
paragraph, the DIP Lenders, the DIP Agent and any of them, may, at any time and
from time to time, without the consent of, or notice to, the Pre-Petition Agent
or any Pre-Petition Lender, without incurring any liabilities to the
Pre-Petition Agent or any Pre-Petition Lender and without impairing or releasing
the subordination provisions, lien priorities and other benefits provided in
this Intercreditor Agreement (even if any right of subrogation or other right or
remedy of the Pre-Petition Agent or any Pre-Petition Lender is affected,
impaired or extinguished thereby) do any one or more of the following:
(i) change the manner, place or terms of payment or change or extend
the time of payment of, or renew, exchange, amend, increase or alter, the
terms of any of the DIP Lender Claims or any Lien in any DIP Lender
Collateral or guaranty thereof or any liability of any Obligor, or any
liability incurred directly or indirectly in respect thereof, amend, renew,
exchange, extend, modify or supplement in any manner any Liens held by the
DIP Lenders, the DIP Lender Claims or any of the DIP Lender Documents;
(ii) sell, exchange, release, surrender, realize upon, enforce or
otherwise deal with in any manner and in any order any part of the DIP
Lender Collateral or any liability of any Obligor to the DIP Lenders or the
DIP Agent, or any liability incurred directly or indirectly in respect
thereof;
(iii) settle or compromise any DIP Lender Claim or any other liability
of any Obligor or any security therefor or any liability incurred directly
or indirectly in respect thereof and apply any sums by whomsoever paid and
however realized to the DIP Lender Claims in any manner or order; and
(iv) exercise or delay in or refrain from exercising any right or
remedy against any Obligor or any other Person, elect any remedy and
otherwise deal freely with any Obligor, any DIP Lender Collateral or any
liability incurred directly or indirectly in respect thereof;
provided that the DIP Lenders shall not, without the prior written consent of
the Required Standstill Lenders (as defined in the Standstill Agreement),
increase the Commitments or extend the Scheduled Termination Date under the DIP
Credit Agreement.
(c) The Pre-Petition Agent, on behalf of itself and each of the
Pre-Petition Lenders, also agrees that the DIP Lenders and the DIP Agent, so
long as they are acting in a commercially reasonable manner, shall have no
liability to the Pre-Petition Agent or any Pre-Petition Lender, and the
Pre-Petition Agent, on behalf of itself and each of the Pre-Petition Lenders
hereby waives any claim against any DIP Lender or the DIP Agent, arising out of
any and all actions which the DIP Lenders or the DIP Agent may take or permit or
omit to take with respect to: (i) the DIP Lender Documents, (ii) the collection
of the DIP Lender Claims or (iii) the foreclosure upon, or sale, liquidation or
other disposition of, the DIP Lender Collateral. The Pre-Petition Agent, on
behalf of itself and each of the Pre-Petition Lenders, agrees that the DIP
Lenders and the DIP Agent have no duty to them in respect of the maintenance or
preservation of the DIP Lender Collateral, the DIP Lender Claims or otherwise,
so long as the DIP Agent shall use the same degree of care with respect thereto
as the DIP Agent uses for similar property pledged to the DIP Agent as
collateral for obligations of others owing to the DIP Agent; and
(d) The Pre-Petition Agent, on behalf of itself and each of the
Pre-Petition Lenders, agrees not to assert and hereby waives, to the fullest
extent permitted by law, any right
20
to demand, request, plead or otherwise assert or otherwise claim the benefit of,
any appraisal, valuation or other similar right that may otherwise be available
under applicable law or any other similar rights a junior secured creditor may
have under applicable law.
8.4 Obligations Unconditional. All rights, interests, agreements and
obligations of the DIP Agent and the DIP Lenders and the Pre-Petition Agent and
the Pre-Petition Lenders, respectively, hereunder shall remain in full force and
effect irrespective of:
(a) any lack of validity or enforceability of the DIP Lender Documents
or any Pre-Petition Lender Documents;
(b) subject to the proviso to Section 8.3(b), any change in the time,
manner or place of payment of, or in any other terms of, all or any of the DIP
Lender Claims or Pre-Petition Lender Claims, or any amendment or waiver or other
modification, whether by course of conduct or otherwise, of the terms of the DIP
Credit Agreement or any other DIP Lender Document or of the terms of the
Standstill Agreement or any other Pre-Petition Lender Document;
(c) any exchange of any security interest in any Common Collateral or
any other collateral, or any amendment, waiver or other modification, whether in
writing or by course of conduct or otherwise, of all or any of the DIP Lender
Claims or Pre-Petition Lender Claims or any guarantee thereof;
(d) the commencement of any Insolvency or Liquidation Proceeding; or
(e) any other circumstances which otherwise might constitute a defense
available to, or a discharge of, any Obligor in respect of the DIP Lender
Claims, or of the Pre-Petition Agent or any Pre-Petition Lender in respect of
this Intercreditor Agreement.
8.5 Buyout Option. (a) Any Pre-Petition Lender or any affiliate
thereof as having rights under this paragraph (the "Electing Junior Lender")
shall have the option at any time upon not less than 10 Business Days' prior
written notice to the DIP Agent to purchase all (but not less than all) of the
DIP Lender Claims from the DIP Agent and the DIP Lenders. Any such notice from
the Electing Junior Lender to the DIP Agent shall be irrevocable. Any such
purchase must comply with Section 13.2 of the DIP Credit Agreement; provided
however that within five (5) business days of the consummation of such purchase,
the Electing Junior Lender shall offer to each other Pre-Petition Lender a pro
rata share (based on each such Pre-Petition Lender's outstanding Pre-Petition
Lender Claims) of the DIP Lender Claims on the same terms and conditions as such
purchase.
(b) On the date specified by the Electing Junior Lender in such notice
(which shall not be less than 10 days, nor more than 30 days, after the receipt
by the DIP Agent of the notice from the Electing Junior Lender of its election
to exercise such option), the DIP Agent and the DIP Lenders shall, subject to
any required approval of any court or other regulatory or governmental authority
then in effect, if any, sell to the Electing Junior Lender, and the Electing
Junior Lender shall purchase from the DIP Agent and the DIP Lenders, the DIP
Lender Claims, together with their interests in the all assets of the Existing
Foreign Subsidiaries securing the DIP Lender Claims (collectively, "Senior
Collateral").
(c) Upon the date of such purchase and sale, the Electing Junior
Lender shall pay to the DIP Agent and the DIP Lenders in cash as the purchase
price therefor the full amount of all DIP Lender Claims then outstanding and
unpaid (including principal, interest, early
21
termination and other fees and expenses, including reasonable out-of-pocket
attorneys' fees and legal expenses).
(d) Such purchase price shall be remitted by wire transfer in Federal
funds to such bank accounts of the DIP Lenders in New York, New York, as the DIP
Lenders may designate in writing to Pre-Petition Agent and the Electing Junior
Lender for such purposes. Interest shall be calculated to but excluding the
Business Day on which such purchase and sale shall occur if the amounts so paid
by the Electing Junior Lender to the bank accounts designated by the DIP Lenders
are received in such bank accounts prior to 11:00 a.m. New York time, and
interest shall be calculated to and including such Business Day if the amounts
so paid by the Electing Junior Lender to such bank accounts are received in such
bank accounts later than 11:00 a.m. New York time.
(e) Such purchase shall be expressly made without representation or
warranty of any kind by any of the DIP Agent or the DIP Lenders as to the DIP
Lender Claims, the Senior Collateral or otherwise, and without recourse to any
of the DIP Agent and the DIP Lenders, except that each DIP Lender shall
represent and warrant: (i) the amount of the DIP Lender Claims being purchased
from it (but without representation or warranty as to the collectability,
validity or enforceability of such DIP Lender Claims); (ii) that such DIP Lender
owns such DIP Lender Claims free and clear of any liens or encumbrances created
by it; and (iii) that such DIP Lender has the right to assign such DIP Lender
Claims and the assignment is duly authorized by it. Upon the purchase by the
Electing Junior Lender of the DIP Lender Claims, the Electing Junior Lender
agrees to indemnify and hold harmless the DIP Agent and the DIP Lenders from and
against all loss, cost, damage or expense (including attorneys' fees and legal
expenses) suffered or incurred by the DIP Agent or the DIP Lenders arising from
or in any way related to the act or omissions of such Pre-Petition Lender after
the purchase.
Section 9. Miscellaneous.
9.1 Conflicts. In the event of any conflict between the provisions of
this Intercreditor Agreement and the provisions of the DIP Lender Documents or
the Pre-Petition Lender Documents, the provisions of this Intercreditor
Agreement shall govern.
9.2 Continuing Nature of this Intercreditor Agreement. This
Intercreditor Agreement shall continue to be effective until the payment in full
of DIP Lender Claims shall have occurred. This is a continuing agreement of
subordination and the DIP Lenders may continue in accordance with the terms of
the DIP Credit Agreement, at any time and without notice to the Pre-Petition
Agent or any Pre-Petition Lender, to extend credit and other financial
accommodations and lend monies to or for the benefit of the Borrowers on the
faith hereof. The Pre-Petition Agent, on behalf of itself and each of the
Pre-Petition Lenders, hereby waives any right it may have under applicable law
to revoke this Intercreditor Agreement or any of the provisions of this
Intercreditor Agreement. The terms of this Intercreditor Agreement shall
survive, and shall continue in full force and effect, in any Insolvency or
Liquidation Proceeding.
9.3 Amendments; Waivers. No amendment, modification or waiver of any
of the provisions of this Intercreditor Agreement by the Pre-Petition Agent or
the DIP Agent shall be deemed to be made unless the same shall be in writing and
signed on behalf of the party making the same or its authorized agent and each
waiver, if any, shall be a waiver only with respect to the specific instance
involved and shall in no way impair the rights of the parties making such waiver
or the obligations of the other parties to such party in any other respect or at
any other time. The Existing Foreign Subsidiaries and the Domestic Non-Debtor
shall not have any right to amend,
22
modify or waive any provision of this Intercreditor Agreement without the
consent of the Pre-Petition Agent and the DIP Agent nor shall any consent or
signed writing be required of any of the Existing Foreign Subsidiaries and the
Domestic Non-Debtor to effect any amendment, modification or waiver of any
provision of this Intercreditor Agreement, except that no amendment,
modification or waiver affecting any obligation or right of any Existing Foreign
Subsidiaries or the Domestic Non-Debtor hereunder shall be made without their
consent.
9.4 Information Concerning Financial Condition of Exide and its
Subsidiaries. The DIP Agent and the DIP Lenders, on the one hand, and the
Pre-Petition Agent and the Pre-Petition Lenders, on the other hand, shall each
be responsible for keeping themselves informed of (a) the financial condition of
Exide and its Subsidiaries and all endorsers and/or guarantors of the DIP Lender
Claims or the Pre-Petition Lender Claims and (b) all other circumstances bearing
upon the risk of nonpayment of the DIP Lender Claims or the Pre-Petition Lender
Claims. The DIP Agent and the DIP Lenders shall have no duty to advise the
Pre-Petition Agent or any Pre-Petition Lender of information known to it or them
regarding such condition or any such circumstances or otherwise. In the event
the DIP Agent or any of the DIP Lenders, in its or their sole discretion,
undertakes at any time or from time to time to provide any such information to
the Pre-Petition Agent or any Pre-Petition Lender, it or they shall be under no
obligation (x) to provide any additional information or to provide any such
information on any subsequent occasion, (y) to undertake any investigation or
(z) to disclose any information which, pursuant to accepted or reasonable
commercial finance practices, such party wishes to maintain confidential.
9.5 Subrogation. The Pre-Petition Agent, on behalf of itself and each
of the Pre-Petition Lenders, hereby waives any rights of subrogation it may
acquire as a result of any payment hereunder (including, without limitation
under Section 4.4) until the payment in full of all DIP Lender Claims.
9.6 Application of Payments. All payments received by the DIP Agent or
the DIP Lenders may be applied, reversed and reapplied, in whole or in part, to
such part of the DIP Lender Claims as the DIP Agent and the DIP Lenders, in
their sole discretion, deem appropriate. The Pre-Petition Agent, on behalf of
itself and each of the Pre-Petition Lenders, assents to any extension or
postponement of the time of payment of the DIP Lender Claims or any part thereof
and to any other indulgence with respect thereto, to any substitution, exchange
or release of any security which may at any time secure any part of the DIP
Lender Claims and to the addition or release of any other Person primarily or
secondarily liable therefor.
9.7 Consent to Jurisdiction; Waivers. The parties hereto consent to
the jurisdiction of any state or federal court located in New York, New York,
and consent that all service of process may be made by registered mail directed
to such party as provided in Section 9.8 below for such party. Service so made
shall be deemed to be completed three (3) days after the same shall be posted as
aforesaid. The parties hereto waive any objection to any action instituted
hereunder based on forum non conveniens, and any objection to the venue of any
action instituted hereunder. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY
HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS INTERCREDITOR AGREEMENT, ANY DIP LENDER
DOCUMENT OR ANY PRE-PETITION LENDER DOCUMENT, OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR ANY COURSE OF CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT
OR ACTION OF ANY PARTY HERETO.
23
9.8 Notices. All notices to the Pre-Petition Lenders and the DIP
Lenders permitted or required under this Intercreditor Agreement may be sent to
the Pre-Petition Agent and the DIP Agent, respectively. Unless otherwise
specifically provided herein, any notice or other communication herein required
or permitted to be given shall be in writing and may be personally served,
telecopied, electronically mailed or sent by courier service or U.S. mail and
shall be deemed to have been given: (i) when delivered in person or by courier
service, (ii) upon confirmed receipt of a telecopy or electronic mail or (iii)
three Business Days after deposit in the U.S. mail (registered or certified,
with postage prepaid and properly addressed). For the purposes hereof, the
addresses of the parties hereto shall be as set forth below each party's name on
the signature pages hereto, or, as to each party, at such other address as may
be designated by such party in a written notice to all of the other parties.
9.9 Further Assurances. Each of the Pre-Petition Agent, on behalf of
itself and the Pre-Petition Lenders, the Existing Foreign Subsidiaries and the
Domestic Non-Debtor agrees that each of them shall take such further action and
shall execute and deliver to the DIP Agent and the DIP Lenders such additional
documents and instruments (in recordable form, if requested) as the DIP Agent or
the DIP Lenders may reasonably request to effectuate the terms of and the lien
priorities contemplated by this Intercreditor Agreement.
9.10 Governing Law. This Intercreditor Agreement has been delivered
and accepted at and shall be deemed to have been made and entered into at New
York, New York and shall be interpreted, and the rights and liabilities of the
parties bound hereby determined, in accordance with the laws of the State of New
York.
9.11 Binding on Successors and Assigns. This Intercreditor Agreement
shall be binding upon the DIP Agent, the DIP Lenders, the Pre-Petition Agent,
the Pre-Petition Lenders and their respective permitted successors, transferors
and assigns.
9.12 Specific Performance. The DIP Agent may demand specific
performance of this Intercreditor Agreement. The Pre-Petition Agent, on behalf
of itself and each of the Pre-Petition Lenders, hereby irrevocably waives any
defense based on the adequacy of a remedy at law and any other defense which
might be asserted to bar the remedy of specific performance in any action which
may be brought by the DIP Agent.
9.13 Section Titles; Time Periods. The section titles contained in
this Intercreditor Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of this Intercreditor
Agreement. Unless otherwise expressly stated, references to sections are to
sections in this Intercreditor Agreement. In the computation of time periods,
unless otherwise specified, the word "from" means "from and including" and each
of the words "to" and "until" means "to but excluding" and the word "through"
means "to and including".
9.14 Counterparts. This Intercreditor Agreement may be executed in one
or more counterparts, each of which shall be an original and all of which shall
together constitute one and the same document.
9.15 Authorization. By its signature, each Person executing this
Intercreditor Agreement on behalf of a party hereto represents and warrants to
the other parties hereto that it is duly authorized to execute this
Intercreditor Agreement.
24
9.16 No Third Party Beneficiaries. This Intercreditor Agreement and
the rights and benefits hereof shall inure to the benefit of the DIP Agent and
the DIP Lenders and their respective successors and assigns and, to the extent
applicable, the Existing Foreign Subsidiaries, the Domestic Non-Debtor, the
Pre-Petition Agent and the Pre-Petition Lenders and their respective permitted
successors and assigns. No other Person, shall have or be entitled to assert
rights or benefits hereunder.
9.17 Effectiveness. This Intercreditor Agreement shall become
effective when executed and delivered by the parties hereto. This Intercreditor
Agreement shall be effective both before and after the commencement of any
Insolvency or Liquidation Proceeding. All references to the Existing Foreign
Subsidiaries or the Domestic Non-Debtor shall include any Existing Foreign
Subsidiary or the Domestic Non-Debtor as debtor and debtor-in-possession and any
receiver or trustee for any Existing Foreign Subsidiary or the Domestic
Non-Debtor (as the case may be) in any Insolvency or Liquidation Proceeding. If
any Pre-Petition Lender assigns, sells or otherwise disposes of any Pre-Petition
Lender Claim, the assignee or buyer of such Pre-Petition Lender Claim shall
agree, in writing delivered to the DIP Agent, to be bound by the terms hereof;
provided, however, that the failure to provide such writing shall not relieve
such assignee or buyer from being bound by the provisions of this Intercreditor
Agreement.
[THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
25
IN WITNESS WHEREOF, the parties hereto have executed this
Intercreditor Agreement as of the date first written above.
DIP Agent:
CITICORP USA, INC., as DIP Agent
By: Xxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice Presdient
Address:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxx
Telecopy no.: (000) 000-0000
email address: xxxxxxxxx.xxxxx@xxxxxxxx.xxx
Pre-Petition Agent:
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
Address:
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopy no.: (000) 000-0000
email address: xxxxxx.xxxxxx@xxxx.xxx
Escrow Agent:
CITICORP USA, INC., as Escrow Agent
By: Xxxxxxx X. Xxxxxx
-----------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Address:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxx
Telecopy no.: (000) 000-0000
email address: xxxxxxxxx.xxxxx@xxxxxxxx.xxx
The Pre-Petition Lenders:
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
By: /s/ Xxx Xxxxxx
--------------------------------
Name: Xxx Xxxxxx
Title: Assistant Vice President
AG CAPITAL FUNDING PARTNERS, L.P.
BY: Xxxxxx, Xxxxxx & Co., L.P.,
as Investment Advisor
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
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
ALPHA BANK A.E., LONDON BRANCH
By: /s/ Xxxxxxx X. Polychroniadis
--------------------------------
Name: Xxxxxxx X. Polychroniadis
Title: Deputy General Manager
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Operations Manager
AMMC CDO I, LIMITED
BY: American Money Management Corp.,
as Collateral Manager
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
AMMC CDO II, LIMITED
BY: American Money Management Corp.,
as Collateral Manager
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
ARCHIMEDES FUNDING, LLC.
BY: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxxx X. Xxxxxx CFA
--------------------------------
Name: Xxxx X. Xxxxxx CFA
Title: Vice President
ARCHIMEDES FUNDING II, LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxxx X. Xxxxxx CFA
--------------------------------
Name: Xxxx X. Xxxxxx CFA
Title: Vice President
ARCHIMEDES FUNDING III, LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxxx X. Xxxxxx CFA
--------------------------------
Name: Xxxx X. Xxxxxx CFA
Title: Vice President
ARCHIMEDES FUNDING IV (CAYMAN), LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxxx X. Xxxxxx CFA
--------------------------------
Name: Xxxx X. Xxxxxx CFA
Title: Vice President
AVALON CAPITAL LTD.
BY: INVESCO Senior Secured Management, Inc.
as Portfolio Advisor
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
AVALON CAPITAL LTD. 2
BY: INVESCO Senior Secured Management, Inc.
as Portfolio Advisor
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
BANCA POPOLARE DI BERGAMO-CV Seri
By: /s/ Riccardo Sora
--------------------------------
Name: Riccardo Sora
Title: Deputy General Manager
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
BANCO ESPIRITO SANTO, S.A.
By: /s/ Xxx Xxxxxx
--------------------------------
Name: Xxx Xxxxxx
Title: Senior Manager
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Assistant Manager
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Associate Director
BANK OF MONTREAL
By: /s/ Xxxxxx X. XxXxxx
--------------------------------
Name: Xxxxxx X. XxXxxx
Title: Director
BANK ONE, N.A.
By: /s/ Xxxxxx X. Xxxxx, III
--------------------------------
Name: Xxxxxx X. Xxxxx, III
Title: First Vice President
BANK PEKAO S.A.
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
Senior Lending Officer
BANQUET ET CAISSE D'EPARGNE DE L'ETAT
LUXEMBOURG
By: /s/ Xxxx-Xxxxxx Xxxxx
----------------------------------
Name: Xxxx-Xxxxxx Xxxxx
Title: Deputy Head of Department
International Loans and Securitized Assets
By: /s/ Xxxx Xxxx
----------------------------------
Name: Xxxx Xxxx
Title: Sous-Directeur
BEAR XXXXXXX INVESTMENT PRODUCTS INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Managing Director
BHF BANK AKLIENGESEKSCHEFT
By: /s/ X. Xxxxxxxx
----------------------------------
Name: X. Xxxxxxxx
Title: Senior Vice President
By: /s/ Xxxxxxxxx
----------------------------------
Name: Xxxxxxxxx
Title: Vice President
BLACK DIAMOND OLD 2000-1 LTD.
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Director
BLACK DIAMOND OLD 1998-1 LTD.
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Director
BLACK DIAMOND INTERNATIONAL FUNDING LTD.
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Director
BNP PARIBAS
By: /s/ Xxxxxxxx Xxxx
----------------------------------
Name: Xxxxxxxx Xxxx
Title: Director
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
CAPTIVA III Finance Ltd. (Acct. 275),
as advised by Pacific Investment Management
Company LLC
By: /s/ Xxxxx Xxxx
----------------------------------
Name: Xxxxx Xxxx
Title: Director
CAPTIVA IV Finance Ltd. (Acct. 1275),
as advised by Pacific Investment Management
Company LLC
By: /s/ Xxxxx Xxxx
----------------------------------
Name: Xxxxx Xxxx
Title: Director
CENTURION CDO I, LIMITED
BY: American Express Asset Management Group Inc.
as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
CERES II FINANCE LTD.
BY: INVESCO Senior Secured Management, Inc.
As Sub-Managing Agent (Financial)
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
CITICORP, U.S.A. INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
COMERICA BANK
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
CONTRARIAN CAPITAL
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Member
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxx xxx Xxxxxxx
----------------------------------
Name: Xxx xxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
CREDIT INDUSTRIEL ET COMMERCIAL
By: /s/ Xxxxxxx Xxxx
----------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
CREDIT INDUSTRIEL ET COMMERCIAL
LONDON BRANCH
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Manager
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
Title: Manager
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Vice President
CSAM FUNDING I
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
CYPRESSTREE INVESTMENT PARTNERS I, LTD.
BY: CypressTree Investment Management Company, Inc.,
as Portfolio Manager
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Associate
CYPRESSTREE INVESTMENT PARTNERS II, LTD.
BY: CypressTree Investment Management Company, Inc.,
as Portfolio Manager
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Associate
DEPARTMENT OF FIRE & POLICE PENSIONS - CITY OF LOS
ANGELES
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman
Magten Asset Management Corp.
As Attorney-in-Fact for Department of Fire
& Police Pensions - City of Los Angeles
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
COSTANTINUS XXXXX XXXXX CDO V, LTD.
BY: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxx X. Page
----------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX CDO IV, LTD.
BY: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxx X. Page
----------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX CDO III, LTD.
BY: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxx X. Page
----------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX CDO II, LTD.
BY: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxx X. Page
----------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND
BY: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxx X. Page
----------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX SENIOR INCOME TRUST
BY: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Xxxxx X. Page
--------------------------------
Name: Xxxxx X. Page
Title: Vice President
FIRST DOMINION FUNDING I
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
FIRST DOMINION FUNDING II
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
Citibank N.A. as Additional
Investment Manager for and on behalf
of Five Finance Corporation
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxx X. X'Xxxxxxx
--------------------------------
Name: Xxxx X. X'Xxxxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxxxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
FORTIS BANK NEDERLAND N.V.A
By: /s/ Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
Title:
FRANKLIN CLO II, LIMITED
By: /s/ Xxxxxxx X'Xxxxxxx
--------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
FRANKLIN FLOATING RATE TRUST
By: /s/ Xxxxxxx X'Xxxxxxx
--------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Vice President
GE CAPITAL CFE, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Duly Authorized Signatory
GENERAL MOTORS EMPLOYEES GLOBAL GROUP PENSION
TRUST
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman
Magten Asset Management Corp.
As Attorney-in-Fact for General
Motors Employees Global Group Pension
Trust
XXXXXXX & CO
BY: Boston Management and Research as Investment
Advisor
By: /s/ Xxxxx X. Page
--------------------------------
Name: Xxxxx X. Page
Title: Vice President
GRAYSTON CLO 2001-01 LTD.
BY: Bear Xxxxxxx Asset Management Inc.
as its Collateral Manager
By: /s/ Xxxxxx Xxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
BY: Indosuez Capital as Portfolio Advisor
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
INDOSUEZ CAPITAL FUNDING III, LIMITED
BY: Indosuez Capital as Portfolio Advisor
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
INDOSUEZ CAPITAL FUNDING IV, L.P.
BY: RBC Leveraged Capital as Portfolio
Advisor
By: /s/ Xxx X. Xxxxxxx
--------------------------------
Name: Xxx X. Xxxxxxx
Title: Managing Director
ING PRIME RATE TRUST
BY: ING Investments, LLC as its
investment manager
By: /s/ Xxxx X. Xxxx, CFA
--------------------------------
Name: Xxxx X. Xxxx, CFA
Title: Vice President
ING PRIME RATE TRUST
BY: ING Investments, LLC as its
investment manager
By: /s/ Xxxx X. Xxxx, CFA
--------------------------------
Name: Xxxx X. Xxxx, CFA
Title: Vice President
INVESTKREDIT BANK AG
By: /s/ X. Xxxxxx
--------------------------------
Name: X. Xxxxxx
Title: Assistant Vice President
By: /s/ X. Xxxxxxx
--------------------------------
Name: X. Xxxxxxx
Title: Senior Vice President
JHW CASH FLOW FUND 1, L.P.
By: /s/ Xxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Fund Controller
KZH CNC LLC
By: /s/ Xxxxx Xxxxxx-Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
KZH CYPRESSTREE-1 LLC
By: /s/ Xxxxx Xxxxxx-Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
KZH ING-2 LLC
By: /s/ Xxxxx Xxxxxx-Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
KZH PONDVIEW LLC
By: /s/ Xxxxx Xxxxxx-Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
KZH STERLING LLC
By: /s/ Xxxxx Xxxxxx-Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
KZH WATERSIDE LLC
By: /s/ Xxxxx Xxxxxx-Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
XXXXXX BROTHERS BANKBAUS AG
By: /s/ X. Xxxxxxx
----------------------------------------
Name: X. Xxxxxxx
Title: Authorized Signatory
XXXXXX SYNDICATED LOANS INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
XXXXXX XXXXXXX EMERGING
MARKETS INC.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
XXXXXX XXXXXXX PRIME INCOME TRUST
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Director
MIZUHO CORPORATE BANK, LTD.
By: /s/ Xxxxxxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
MUZINICH CASHFLOW CBO II, LTD.
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Authorized Signatory
NATEXIS BANQUES POPULAIRES
By: /s/ Xxxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President & Group
Manager
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Associate
OCTAGON INVESTMENT PARTNERS II, LLC
BY: Octagon Credit Investors, LLC
as sub-investment manager
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS III, LTD
BY: Octagon Credit Investors, LLC
as Portfolio Manager
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS IV, LTD
BY: Octagon Credit Investors, LLC
as collateral manager
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Portfolio Manager
ORIX FINANCE CORP. I
By: /s/ Xxxxxxxx X.X. Xxxxx, Xx.
--------------------------------
Name: Xxxxxxxx X.X. Xxxxx, Xx.
Title: Authorized Representative
OXFORD STRATEGIC INCOME FUND
BY: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxx X. Page
--------------------------------
Name: Xxxxx X. Page
Title: Vice President
PARIBAS CAPITAL FUNDING LLC
By: /s/ M. Xxxxxx Xxxxxxxxx
--------------------------------
Name: M. Xxxxxx Xxxxxxxxx
Title:
XXXXXX DIVERSIFIED INCOME TRUST
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXX HIGH YIELD TRUST
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXX FUNDS TRUST - XXXXXX HIGH YIELD TRUST II
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
R/2/ TOP HAT, LTD.
BY: Amalgamated Gadget, L.P. as investment manager
BY: Scepter Holdings, Inc., its General Partner
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxx
Title: President
ROYALTON COMPANY (Acct 280)
BY: Pacific Investment Management Company LLC,
as its Investment Advisor
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
SALOMON BROTHERS HOLDING COMPANY INC.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
SENIOR DEBT PORTFOLIO
BY: Boston Management and Research
as Investment Advisor
By: /s/ Xxxxx X. Page
--------------------------------
Name: Xxxxx X. Page
Title: Vice President
SEQUILS - CENTURION V, LTD.
American Express Asset Management Group Inc.
as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
SEQUILS-ING I (HBDGM), LTD.
BY: ING Capital Advisors LLC, as Collateral Manager
By: /s/ Xxxx X. Xxxxxx CFA
--------------------------------
Name: Xxxx X. Xxxxxx CFA
Title: Vice President
BALANCED HIGH-YIELD FUND I, LTD.
BY: ING Capital Advisors LLC, as Asset Manager
By: /s/ Xxxx X. Xxxxxx CFA
--------------------------------
Name: Xxxx X. Xxxxxx CFA
Title: Vice President
SILVER OAK CAPITAL, LLC
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Marking Director
SOCIETE GENERALE
By: /s/ R. Xxxxx Xxxxxx
--------------------------------
Name: R. Xxxxx Xxxxxx
Title: Director
SP OFFSHORE LIMITED
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. XxXxx
Title: Attorney-in-Fact
STRONG HIGH YIELD BOND FUND, A SERIES
OF STRONG INCOME FUNDS, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Portfolio Manager
FORTE I CDO (CAYMAN) LTD. BY STRONG
CAPITAL MANAGEMENT, INC. AS
COLLATERAL MANAGER
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Portfolio Manager
SUMITOMO TRUST & BANKING CO., LTD.
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Senior Manager
TEXTRON FINANCIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxxxxxxx Xxxx
--------------------------------
Name: Xxxxxxxxxxx Xxxx
Title: Director
TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxx X. Xxxxxx
--------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President
UBS AG, STAMFORD BRANCH
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Associate Director
Banking Products Services, US
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Associate Director
Banking Products Services, US
WINGED FOOT FUNDING TRUST
By: /s/ Xxx X. Xxxxxx
--------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
SCOTIABANK EUROPE PLC
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Director
The Existing Foreign Subsidiaries
EXIDE HOLDING EUROPE S.A.
COMPAGNIE EUROPEENNE
D'ACCUMULATEURS S.A.
EURO EXIDE CORPORATION LIMITED
SOCIEDAD ESPANOLA DEL ACUMULADOR
TUDOR X.X.
XXXXX A.B.
EXIDE TECHNOLOGIES NEDERLAND B.V.
CMP BATTERIES LIMITED
DEUTSCHE EXIDE STANDBY GMBH
DEUTSCHE EXIDE GMBH
MERCOLEC TUDOR B.V.
By: /s/ Xxxxxx X. X'Xxxx
--------------------------------
Name: Xxxxxx X. X'Xxxx
Title:
FULMEN IBERICA S.L.
CMP BATTERIJEN N.V.
EXIDE AUTOMOTIVE BATTERIE GMBH
XXXXX BATTERIE AG
ELECTRO MERCANTIL INDUSTRIAL S.L.
EXIDE (DAGENHAM) LIMITED
FULMEN UK LIMITED
EXIDE AUTOMOTIVE S.A.
SOCIEDADE PORTUGUESA DO
ACUMULADOR XXXXX X.X.
EXIDE DANMARK A/S
EXIDE BATTERIER AB
CENTRA X.X.
XXXXXXXX & XXXX BATTERIETECHNIK
GMBH
EXIDE SONNAK 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.
By: /s/ Xxxxxx X. X'Xxxx
-----------------------------------
Name: Xxxxxx X. X'Xxxx
Title:
EXIDE ITALIA S.R.L.
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: President and CEO
INDUSTRIA COMPOSIZIONI STAMPATE, SPA
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: President and CEO
EXIDE AUSTRALIA PTY LIMITED
By: /s/ Xxxxxxx Xxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx Xxxxxxxx
Title: Director
EXIDE TECHNOLOGIES LIMITED
By: /s/ Xxxxxxx Xxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx Xxxxxxxx
Title: Director
The Domestic Non-Debtor
GNB BATTERY TECHNOLOGIES JAPAN, INC.
By: /s/ Xxxxxx X. X'Xxxx
-------------------------------
Name: Xxxxxx X. X'Xxxx
Title:
CONSENTED AND ACKNOWLEDGED:
EXIDE TECHNOLOGIES
By: /s/ Xxxxxx X. X'Xxxx
--------------------------------
Name:Xxxxxx X. X'Xxxx
Title:
Address:
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention:
Telecopy no.:
email address:
SCHEDULE 1
EXISTING FOREIGN SUBSIDIARIES
Existing Foreign Borrowing Subsidiaries:
Exide Holding Europe S.A. ("EHE")
Compagnie Europeenne D'Accumulateurs S.A.,
Euro Exide Corporation Limited
Sociedad Espanola del Acumulador Tudor X.X.
Xxxxx A.B.,
Exide Technologies Nederland BV
CMP Batteries Limited
Deutsche Exide Standby GMBH
Deutsche Exide GMBH
Mercolec Tudor B.V.
Existing Foreign Subsidiary Guarantors:
Exide Italia S.R.L.
Industria Composizioni Stampate, SpA
Fulmen Iberica S.L.
CMP Batterijen N.V.
Exide Automotive Batterie GMBH
Xxxxx Batterie AG
Electro Mercantil Industrial S.L.
Exide (Dagenham) Limited
Fulmen UK Limited
Exide Automotive S.A.
Sociedade Portuguesa do Acumulador Xxxxx X.X.
Exide Danmark A/S
Exide Batterier AB
Centra X.X.
Xxxxxxxx & Xxxx Batterietechnik GMBH
Exide Sonnak 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 ("EHA")
GNB Technologies (China) Limited
Exide Singapore PTE Limited
Exide Australia PTY Limited
Exide Technologies Limited
Exide Canada Inc.
1036058 Ontario Inc.
(such Subsidiaries, collectively referred to as the "Existing Foreign
Subsidiaries")
