Exhibit 10.2
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is dated as of
the Effective Date set forth below and is entered into by and between BANK OF
AMERICA, N.A. (the "Assignor") and SOVEREIGN BANK (the "Assignee"). Capitalized
terms used but not defined herein have the meanings provided in the Credit
Agreement identified below, receipt of a copy of which is hereby acknowledged by
the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a part
of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns
to the Assignee, and the Assignee hereby irrevocably purchases and assumes from
the Assignor, subject to and in accordance with the Standard Terms and
Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of the Assignor's rights and
obligations as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including, without limitation, Letters of Credit, Guarantees and Swing Line
Loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other
right of the Assignor (in its capacity as a Lender) against any Person, whether
known or unknown, arising under or in connection with the Credit Agreement, any
other documents or instruments delivered pursuant thereto or the loan
transactions governed thereby or in any way based on or related to any of the
foregoing, including, but not limited to, contract claims, tort claims,
malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to clause (i)
above (the rights and obligations sold and assigned pursuant to clauses (i) and
(ii) above being referred to herein collectively as, the "Assigned Interest").
Such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment and Assumption, without representation or
warranty by the Assignor.
1. Assignor: Bank of America, N.A.
2. Assignee: Sovereign Bank
3. Borrowers: C&D Technologies, Inc., a Delaware corporation,
and C&D International Investment Holdings Inc.,
a Delaware corporation
4. Administrative Agent: Bank of America, N.A., as the administrative
agent under the Credit Agreement
5. Credit Agreement: Amended and Restated Credit Agreement dated
as of June 30, 2004 by and among the Borrowers,
the Guarantors identified therein, the Lenders
parties thereto and Bank of America, N.A., as
Administrative Agent, L/C Issuer and Swing
Line Lender
6. Assigned Interest:
- ------------------------------- ----------------------------- --------------------------- ----------------------------
Aggregate Amount of
Revolving Commitments Amount of Revolving Percentage of Revolving
Facility Assigned of all Lenders Commitment Assigned Commitment Assigned
- ------------------------------- ----------------------------- --------------------------- ----------------------------
- ------------------------------- ----------------------------- --------------------------- ----------------------------
- ------------------------------- ----------------------------- --------------------------- ----------------------------
- ------------------------------- ----------------------------- --------------------------- ----------------------------
Revolving Commitment $175,000,000 $7,500,000 4.285714286%
- ------------------------------- ----------------------------- --------------------------- ----------------------------
7. Effective Date: August 3, 2004
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR: BANK OF AMERICA, N.A.
By: /s/ Charles R. Dickerson
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Name: Charles R. Dickerson
Title: Senior Vice President
ASSIGNEE: SOVEREIGN BANK
By: /s/ Karl F. Schultz
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Name: Karl F. Schultz
Title: Vice President
Consented to and Accepted:
BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ Charles R. Dickerson
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Name: Charles R. Dickerson
Title: Senior Vice President
Consented to:
C&D TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ Robert T. Marley
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Name: Robert T. Marley
Title: V.P. Treasurer
Annex 1 to Assignment and Assumption
STANDARD TERMS AND CONDITIONS
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal
and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is
free and clear of any lien, encumbrance or other adverse claim and (iii) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any collateral thereunder, (iii) the financial condition of the
Parent, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the
Parent, any of its Subsidiaries or Affiliates or any other Person of any of
their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents, warrants and agrees that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Lender thereunder, (iv)
it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements referred to in Section 6.05 thereof or delivered
pursuant to Section 7.01 thereof, as applicable, and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision
independently and without reliance on the Administrative Agent, the Assignor or
any other Lender, and (v) if it is a Foreign Lender, attached hereto is any
documentation required to be delivered by it pursuant to the terms of the Credit
Agreement, duly completed and executed by the Assignee; and (b) agrees that (i)
it will, independently and without reliance on the Administrative Agent, the
Assignor or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, and (ii) it will perform
in accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative Agent shall
make all payments in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignor for amounts which
have accrued to but excluding the Effective Date and to the Assignee for amounts
which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and
assigns. This Assignment and Assumption may be executed in any number of
counterparts, which together shall constitute one instrument. Delivery of an
executed counterpart of a signature page of this Assignment and Assumption by
telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.