Exhibit 10.5
FIRST AMENDMENT
THIS FIRST AMENDMENT (this "Amendment") dated as of December 9, 2004 to the
Credit Agreement referenced below is by and among C&D TECHNOLOGIES, INC., a
Delaware corporation (the "Parent"), C&D INTERNATIONAL INVESTMENT HOLDINGS INC.,
a Delaware corporation ("International" and together with the Parent, the
"Borrowers"), the Guarantors identified on the signature pages hereto, the
Lenders identified on the signature pages hereto and BANK OF AMERICA, N.A., as
Administrative Agent.
W I T N E S S E T H
WHEREAS, a $200 million revolving credit facility has been extended to the
Borrowers pursuant to the terms of the Amended and Restated Credit Agreement (as
amended, modified and supplemented, the "Credit Agreement") dated as of June 30,
2004 among the Borrowers, the Guarantors identified therein, the Lender
identified therein and the Administrative Agent; and
WHEREAS, the Borrower has requested a modification to the Credit Agreement
and the Required Lenders have agreed to the requested modifications on the terms
set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein but not otherwise
defined herein shall have the meanings provided to such terms in the Credit
Agreement.
2. Amendment. The definition of "Consolidated EBITDA" in Section 1.01 of
the Credit Agreement is amended to read as follows:
"Consolidated EBITDA" means, for any period for the Parent and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated
Net Income for such period plus the following to the extent deducted
in calculating such Consolidated Net Income: (a) Consolidated Interest
Charges for such period, (b) the provision for federal, state, local
and foreign income taxes payable by the Parent and its Subsidiaries
for such period, (c) the amount of depreciation and amortization
expense for such period, (d) non-cash charges incurred in connection
with asset impairment and the write-down of goodwill, (e) up to $8.1
million of non-cash charges incurred as a result of the seller in the
Dynamo Acquisition recording certain divestiture and restructuring
charges to the business unit purchased by the Borrower in the Dynamo
Acquisition for the month of September 2004 and (f) up to $7.9 million
of non-cash charges relating to a cash obsolescence reserve
established by the Borrower for inventory of the business unit
purchased by the Borrower in the Dynamo Acquisition, all as determined
in accordance with GAAP.
3. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original and it shall not be necessary in making proof of this Amendment to
produce or account for more than one such counterpart.
4. Governing Law. This Amendment shall be deemed to be a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of New York.
[Signature Pages Follow]
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this First Amendment to be duly executed and delivered as of the date first
above written.
PARENT: C&D TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ Stephen E. Markert, Jr.
-----------------------------------
Name: Stephen E. Markert, Jr.
Title: Chief Financial Officer
INTERNATIONAL: C&D INTERNATIONAL INVESTMENT HOLDINGS INC.,
a Delaware corporation
By: /s/ Robert T. Marley
-----------------------------------
Name: Robert T. Marley
Title: Vice President and Treasurer
GUARANTORS: C&D CHARTER HOLDINGS, INC.,
a Delaware corporation
DATEL, INC.,
a Delaware corporation
DATEL SYSTEMS, INC.,
a Massachusetts corporation
By: /s/ Robert T. Marley
-----------------------------------
Name: Robert T. Marley
Title: Vice President and Treasurer of each foregoing Guarantor
DATEL HOLDING CORPORATION,
a Delaware corporation
By: /s/ Greg Spencer
-----------------------------------
Name: Greg Spencer
Title: Treasurer
ADMINISTRATIVE
AGENT: BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Michael Brashler
-----------------------------------
Name: Michael Brashler
Title: Vice President
[SIGNATURE PAGES CONTINUE]
LENDERS: BANK OF AMERICA, N.A.,
as a Lender, L/C Issuer and Swing Line Lender
By: /s/ Monica Brandes
-----------------------------------
Name: Monica Brandes
Title: SVP
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ John Falb
-----------------------------------
Name: John Falb
Title: First Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ J. Andrew Phelps
-----------------------------------
Name: J. Andrew Phelps
Title: Vice President
THE BANK OF NEW YORK
By:
-----------------------------------
Name:
Title:
Manufacturers and Traders Trust Company
By: /s/ Joshua C. Becker
-----------------------------------
Name: Joshua C. Becker
Title: Assistant Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Keith R. White
-----------------------------------
Name: Keith R. White
Title: Vice President
CITIZENS BANK
By: /s/ MW Torie
-----------------------------------
Name: Mark W. Torie
Title: SVP
COMERICA BANK
By: /s/ Richard Hampson
-----------------------------------
Name: Richard C. Hampson
Title: Vice President
[SIGNATURE PAGES CONTINUE]
CALYON NEW YORK BRANCH
By: /s/ James Gibson
-----------------------------------
Name: James Gibson
Title: Managing Director
By: /s/ SR Chappelka
-----------------------------------
Name: Scott R. Chappelka
Title: Director
SOVEREIGN BANK
By: /s/ Karl F. Schultz
-----------------------------------
Name: Karl F. Schultz
Title: Vice President
SECOND AMENDMENT
THIS SECOND AMENDMENT (this "Amendment") dated as of April 21, 2005 to the
Credit Agreement referenced below is by and among C&D TECHNOLOGIES, INC., a
Delaware corporation (the "Parent"), C&D INTERNATIONAL INVESTMENT HOLDINGS INC.,
a Delaware corporation ("International" and together with the Parent, the
"Borrowers"), the Guarantors identified on the signature pages hereto, the
Lenders identified on the signature pages hereto and BANK OF AMERICA, N.A., as
Administrative Agent.
W I T N E S S E T H
WHEREAS, a $200 million revolving credit facility has been extended to the
Borrowers pursuant to the Amended and Restated Credit Agreement (as amended,
modified and supplemented, the "Credit Agreement") dated as of June 30, 2004
among the Borrowers, the Guarantors identified therein, the Lenders identified
therein and the Administrative Agent; and
WHEREAS, the Parent has requested a modification to the Credit Agreement
and the Required Lenders have agreed to the requested modifications on the terms
set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein but not otherwise defined
herein shall have the meanings provided to such terms in the Credit Agreement.
2. Amendments. The Credit Agreement is hereby amended in the following
respects:
(a) In Section 1.01, each of the following definitions is added in
appropriate alphabetical order, or amended, to read as follows:
"Applicable Rate" means the following percentages per annum, based
upon the Consolidated Total Leverage Ratio as set forth in the most
recent Compliance Certificate received by the Administrative Agent
pursuant to Section 7.02(b):
----------- -------------------------------- ------------- ----------------------- --------------
Pricing Consolidated Total Commitment Letter of Credit Fee Base Rate
Tier Leverage Ratio Fee and Eurocurrency Loans Loans
----------- -------------------------------- ------------- ----------------------- --------------
----------- -------------------------------- ------------- ----------------------- --------------
I Less than or equal to 1.0:1.0 0.250% 1.00% 0.00%
----------- -------------------------------- ------------- ----------------------- --------------
II Less than or equal to 1.5:1.0 0.250% 1.25% 0.00%
but greater than 1.0:1.0
----------- -------------------------------- ------------- ----------------------- --------------
III Less than or equal to 2.0:1.0 0.300% 1.50% 0.00%
but greater than 1.5:1.0
----------- -------------------------------- ------------- ----------------------- --------------
IV Less than or equal to 2.5:1.0 0.375% 1.75% 0.25%
but greater than 2.0:1.0
----------- -------------------------------- ------------- ----------------------- --------------
V Less than or equal to 3.0:1.0 0.500% 2.00% 0.50%
but greater than 2.5:1.0
----------- -------------------------------- ------------- ----------------------- --------------
VI Less than or equal to 3.5:1.0 0.500% 2.25% 0.75%
but greater than 3.0:1.0
----------- -------------------------------- ------------- ----------------------- --------------
VII Less than or equal to 4.0:1.0 0.500% 2.50% 1.00%
but greater than 3.5:1.0
----------- -------------------------------- ------------- ----------------------- --------------
VIII Greater than 4.0:1.0 0.500% 2.75% 1.25%
----------- -------------------------------- ------------- ----------------------- --------------
Any increase or decrease in the Applicable Rate resulting from a
change in the Consolidated Total Leverage Ratio shall become effective
as of the first Business Day immediately following the date a
Compliance Certificate is delivered pursuant to Section 7.02(b);
provided, however, that if a Compliance Certificate is not delivered
when due in accordance with such Section, then Pricing Tier VIII shall
apply as of the first Business Day after the date on which such
Compliance Certificate was required to have been delivered and shall
continue to apply until the first Business Day immediately following
the date such Compliance Certificate is actually delivered.
"Collateral Documents" means a collective reference to the Security
Agreement, the Pledge Agreement, the Mortgages and such other security
documents as may be executed and delivered by the Loan Parties
pursuant to the terms of Section 7.14.
"Consolidated EBITDA" means, for any period for the Parent and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated
Net Income for such period plus the following to the extent deducted
in calculating such Consolidated Net Income: (a) Consolidated Interest
Charges for such period, (b) the provision for federal, state, local
and foreign income taxes payable by the Parent and its Subsidiaries
for such period, (c) the amount of depreciation and amortization
expense for such period, (d) non-cash charges incurred in connection
with asset impairment and the write-down of goodwill, (e) up to $2.5
million of charges incurred in the Parent's fiscal year ending January
31, 2006 in connection with severance matters and (f) non-cash
stock-based compensation expenses for such period, determined in
accordance with GAAP.
"Excluded Property" means, with respect to any Loan Party, (a) any
owned or leased real or personal Property which is located outside of
the United States unless requested by the Administrative Agent or the
Required Lenders, (b) any personal Property (including, without
limitation, motor vehicles) in respect of which perfection of a Lien
is not either (i) governed by the Uniform Commercial Code or (ii)
effected by appropriate evidence of the Lien being filed in either the
United States Copyright Office or the United States Patent and
Trademark Office, unless requested by the Administrative Agent or the
Required Lenders, (c) any Property which, subject to the terms of
Section 8.09, is subject to a Lien of the type described in Section
8.01(i) pursuant to documents which prohibit such Loan Party from
granting any other Liens on such Property, (d) any lease, license or
other contract if the grant of a Lien on such lease, license or
contract is prohibited by the terms of such lease, license or contract
or by Law and would result in the termination of such lease, license
or contract, but only to the extent that any such prohibition could
not be rendered ineffective pursuant to the Uniform Commercial Code or
any other applicable law (including Debtor Relief Laws) or principles
of equity and (e) any real property not listed on Schedule 3 to the
Second Amendment to this Agreement.
"Mortgaged Property" means any real property that is owned by the
Parent and is subject to a Mortgage.
"Mortgages" means the mortgages, deed of trusts, deeds to secure debt
and like instruments that purport to grant to the Administrative
Agent, for the benefit of itself and the Lenders, a security interest
in the fee interest of the Parent in the real property listed on
Schedule 3 to the Second Amendment to this Agreement, in each case as
amended, modified and supplemented from time to time.
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"Net Cash Proceeds" means the aggregate cash or Cash Equivalents
proceeds received by the Parent or any Subsidiary in respect of any
issuance of Specified Subordinated Indebtedness, net of (a) direct
costs incurred in connection therewith (including, without limitation,
legal, accounting and investment banking fees, and sales commissions)
and (b) taxes paid or payable as a result thereof; it being understood
that "Net Cash Proceeds" shall include, without limitation, any cash
or Cash Equivalents received upon the sale or other disposition of any
non-cash consideration received by the Parent or any Subsidiary in any
issuance of Specified Subordinated Indebtedness.
"Security Agreement" means the Security Agreement executed in favor of
the Administrative Agent, for the benefit of itself and the Lenders,
by each of the Loan Parties, as amended, modified and supplemented
from time to time.
"Specified Subordinated Indebtedness" has the meaning specified in
Section 8.03(m).
(b) Section 2.05(b) is amended to read as follows:
(b) Mandatory Prepayments of Loans.
(i) If for any reason the Total Revolving Outstandings at any
time exceed the Aggregate Revolving Commitments then in effect, then
the Borrowers shall immediately prepay Revolving Loans and/or the
Parent shall immediately prepay the Swing Line Loans and/or Cash
Collateralize the L/C Obligations (in each case as provided in clause
(iii) below) in an aggregate amount equal to such excess.
(ii) Immediately upon receipt by the Parent or any Subsidiary of
the Net Cash Proceeds of any issuance of Specified Subordinated
Indebtedness, the Parent shall prepay the Loans and/or Cash
Collateralize the L/C Obligations (as provided in clause (iii) below)
in an aggregate amount equal to one hundred percent (100%) of such Net
Cash Proceeds.
(iii) All amounts prepaid pursuant to this Section 2.05(b) shall
be applied first to Revolving Loans and Swing Line Loans and (after
all Revolving Loans and all Swing Line Loans have been repaid) then to
Cash Collateralize L/C Obligations. Within the parameters of the
applications set forth above, prepayments shall be applied first to
Base Rate Loans and then to Eurocurrency Rate Loans in direct order of
Interest Period maturities. All prepayments under this Section 2.05(b)
shall be subject to Section 3.05, but otherwise without premium or
penalty, and shall be accompanied by interest on the principal amount
prepaid through the date of prepayment.
(c) Section 2.06 is amended to read as follows:
2.06 Termination or Reduction of Aggregate Revolving Commitments.
(a) Optional. The Parent may, upon notice from the Parent to the
Administrative Agent, terminate the Aggregate Revolving Commitments or
from time to time permanently reduce the Aggregate Revolving
Commitments to an amount not less than the Outstanding Amount of
Revolving Loans, Swing Line Loans and L/C Obligations; provided that
(i) any such notice shall be received by the Administrative Agent not
later than 11:00 a.m. five Business Days prior to the date of
termination or reduction and (ii) any such partial reduction shall be
3
in an aggregate amount of $10,000,000 or any whole multiple of
$1,000,000 in excess thereof. The Administrative Agent will promptly
notify the Lenders of any such notice of termination or reduction of
the Aggregate Revolving Commitments.
(b) Mandatory. The Aggregate Revolving Commitments shall be
permanently reduced in an amount equal to the amount of Net Cash
Proceeds applied to the prepayment of Loans and Cash Collateralization
of L/C Obligations pursuant to Section 2.05(b)(ii).
(c) Application. Any reduction of the Aggregate Revolving
Commitments shall be applied to the Revolving Commitment of each
Lender according to its Pro Rata Share.
(d) Accrued Commitment Fees. All commitment fees accrued until
the effective date of any termination of the Aggregate Revolving
Commitments shall be paid on the effective date of such termination.
(d) The following sentence is added to the end of each of Section 6.10 and
Section 7.07:
The Administrative Agent shall be named as loss payee or mortgagee, as
its interest may appear, and/or additional insured with respect to any
such insurance providing coverage in respect of any Collateral, and
each provider of any such insurance shall agree, by endorsement upon
the policy or policies issued by it or by independent instruments
furnished to the Administrative Agent, that it will give the
Administrative Agent thirty (30) days prior written notice before any
such policy or policies shall be altered or canceled.
(e) In Section 7.02, the "and" at the end of clause (e) is deleted, the
"." at the end of clause (f) is replaced with "; and", and a new clause (g) is
added thereto to read as follows:
(g) concurrently with the delivery of the financial statements
referred to in Sections 7.01(a) and (b), a certificate of a
Responsible Officer of the Parent (i) listing (A) all applications, if
any, for Copyrights, Patents or Trademarks (each such term as defined
in the Security Agreement) made since the date of the prior
certificate (or, in the case of the first such certificate, the date
of the Second Amendment to this Agreement), (B) all issuances of
registrations or letters on existing applications for Copyrights,
Patents and Trademarks (each such term as defined in the Security
Agreement) received since the date of the prior certificate (or, in
the case of the first such certificate, the date of the Second
Amendment to this Agreement), and (C) all Trademark Licenses,
Copyright Licenses and Patent Licenses (each such term as defined in
the Security Agreement) entered into since the date of the prior
certificate (or, in the case of the first such certificate, the date
of the Second Amendment to this Agreement), and (ii) attaching the
insurance binder or other evidence of insurance for any insurance
coverage of the Parent or any Domestic Subsidiary that was renewed,
replaced or modified during the period covered by such financial
statements.
(f) The following paragraph is added to the end of Section 7.10:
4
Permit representatives and independent contractors of the
Administrative Agent to conduct an annual audit of the Collateral
during reasonable business hours or at such other time as mutually
agreed to by the Parent and Administrative Agent at the expense of the
Parent upon reasonable advance notice to the Parent.
(g) A new clause (c) is added to Section 7.14 to read as follows:
(c) Other Property. (i) Cause all of its owned and leased real and
personal property other than Excluded Property to be subject at all
times to first priority, perfected and, in the case of real property
(whether leased or owned), title insured Liens in favor of the
Administrative Agent, for the benefit of itself and the Lenders, to
secure the Obligations pursuant to the terms and conditions of the
Collateral Documents or, with respect to any such Property acquired
subsequent to the Closing Date, such other additional security
documents as the Administrative Agent shall reasonably request,
subject in any case to Permitted Liens and (ii) deliver such other
documentation as the Administrative Agent may reasonably request in
connection with the foregoing, including, without limitation,
appropriate Uniform Commercial Code Lien searches, real estate title
insurance policies, surveys, environmental reports, landlord's
waivers, certified resolutions and other organizational and
authorizing documents of such Person, favorable opinions of counsel to
such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation
referred to above and the perfection of the Administrative Agent's
Liens thereunder, but which, in any event, shall be in form and
substance substantially similar to the opinions of counsel delivered
in connection with the Amendment), all in form, content and scope
reasonably satisfactory to the Administrative Agent.
(h) In Section 8.03, the "and" at the end clause (k) is deleted, the "."
at the end of clause (l) is replaced with "; and" and a new clause (m) is added
thereto to read as follows:
(m) Subordinated Indebtedness (the "Specified Subordinated
Indebtedness"), provided that (i) the Parent shall have delivered a
Pro Forma Compliance Certificate to the Administrative Agent and each
of the Lenders demonstrating that, upon giving effect on a Pro Forma
Basis to the incurrence of such Subordinated Indebtedness, the Loan
Parties would be in compliance with the financial covenants set forth
in Section 8.11 as of the most recent fiscal quarter end for which the
Parent has delivered financial statements pursuant to Section 7.01(a)
or (b) and (ii) no Default exists or would exist after giving effect
to the incurrence of such Subordinated Indebtedness.
(i) Section 8.11(a) is amended to read as follows:
(a) Consolidated Total Leverage Ratio. Permit the Consolidated Total
Leverage Ratio as of the end of each fiscal quarter of the Parent set
forth below to be greater than the ratio set forth opposite such
fiscal quarter:
------------------------------- -----------------------------
Maximum Consolidated Total
Fiscal Quarter End Leverage Ratio
------------------------------- -----------------------------
------------------------------- -----------------------------
April 30, 2005 4.50:1.0
------------------------------- -----------------------------
July 31, 2005 4.60:1.0
------------------------------- -----------------------------
5
-------------------------------------------------------------
October 31, 2005 4.25:1.0
------------------------------- -----------------------------
January 31, 2006 3.75:1.0
------------------------------- -----------------------------
April 30, 2006 3.50:1.0
------------------------------- -----------------------------
July 31, 2006 3.50:1.0
------------------------------- -----------------------------
October 31, 2006 3.50:1.0
------------------------------- -----------------------------
January 31, 2007 3.25:1.0
------------------------------- -----------------------------
April 30, 2007 and each fiscal 3.00:1.0
quarter ending thereafter
------------------------------- -----------------------------
(j) Section 8.11(b) is amended to read as follows:
(b) Consolidated Net Worth. Permit Consolidated Net Worth at any
time to be less than the sum of (i) an amount equal to $225 million,
increased on a cumulative basis as of the end of each fiscal quarter
of the Parent, commencing with the fiscal quarter ending July 30,
2004, by an amount equal to 50% of Consolidated Net Income (to the
extent positive) for the fiscal quarter then ended plus (ii) 100% of
the proceeds of all equity issuances after the Closing Date (excluding
any equity issuances in connection with the Datel Transaction and the
Dynamo Transaction) minus (iii) one hundred percent (100%) of the
first $85 million of charges for the write down of good will and fifty
percent (50%) of all charges in excess thereof for the write down of
goodwill.
(k) A new clause (d) is added to the end of Section 8.11 to read as
follows:
(d) Consolidated EBITDA. Permit Consolidated EBITDA as of the end of
each fiscal quarter of the Parent set forth below to be less than the
amount set forth opposite such fiscal quarter for the period of four
consecutive fiscal quarters then ending:
------------------------------- ----------------------------
Fiscal Quarter End Minimum Consolidated EBITDA
------------------------------- ----------------------------
------------------------------- ----------------------------
April 30, 2005 $32 million
------------------------------- ----------------------------
July 31, 2005 $30 million
------------------------------- ----------------------------
October 31, 2005 $34 million
------------------------------- ----------------------------
January 31, 2006 $40 million
------------------------------- ----------------------------
April 30, 2006 and each fiscal No test
quarter ending thereafter
------------------------------- ----------------------------
3. Representations and Warranties. Each Loan Party represents and
warrants to the Administrative Agent and the Lenders as follows:
(a) Business Locations.
(i) The exact legal name and state of organization of each Loan
Party is as set forth on the signature pages hereto.
(ii) Except as set forth on Schedule 1 hereto, no Loan Party has
during the five years preceding the date hereof (or, in the case of a
Loan Party acquired in an acquisition, during the period from the date
6
of the consummation of such acquisition to the date hereof) (A)
changed its legal name, (B) changed its state of formation or (C) been
party to a merger, consolidation or other change in structure.
(iii) Set forth on Schedule 2 hereto is the chief executive
office, tax payer identification number and organizational
identification number of each Loan Party as of the date hereof.
(b) Reaffirmation of Representations and Warranties under Loan
Documents. After giving effect to this Amendment, each Loan Party
represents and warrants that each representation and warranty set forth in
the Loan Documents is true and correct in all material respects as of the
date hereof (except those that expressly relate to an earlier period).
4. Covenant. The Loan Parties covenant and agree that within ninety (90)
days of the date of this Amendment the Loan Parties shall deliver to the
Administrative Agent:
(a) fully executed and notarized Mortgages encumbering the fee
interest of the Parent in each real property that is identified on Schedule
3 hereto;
(b) if required by the title company issuing the policies referred to
in clause (c) below to remove the so-called "survey-exception" from, and to
provide the so-called "survey endorsement" in, the title policy to be
issued to the Administrative Agent, an ALTA/ACSM survey of the sites of the
real property covered by each Mortgage certified to the Administrative
Agent and the title insurance company issuing the policies referred to in
clause (c) below in a manner, and dated a date, reasonably satisfactory to
each of the Administrative Agent and such title insurance company, by an
independent professional licensed land surveyor, which survey shall be made
(i) in accordance with the 1999 "Minimum Standard Detail Requirements for
ALTA/ACSM Land Title Surveys" established and adopted by ALTA, ACSM and the
National Association of Professional Surveyors and includes Table A items
Numbers 2, 3, 4, 6, 7(a), 7(b)(1), 8, 9, 10, 11(a), 13, 14, 15 and 16 and
(ii) pursuant to the 1999 Accuracy Standards (as adopted by ALTA and ACSM
and in effect on the date of such survey);
(c) if requested by the Administrative Agent, ALTA mortgagee title
insurance policies issued by a title insurance company reasonably
acceptable to the Administrative Agent with respect to each Mortgaged
Property, assuring that each of the Mortgages creates a valid and
enforceable first priority mortgage lien on the applicable Mortgaged
Property, free and clear of all defects and encumbrances except Permitted
Liens, which title insurance policies shall otherwise be in form and
substance reasonably satisfactory to the Administrative Agent and shall
include such endorsements as are reasonably requested by the Administrative
Agent (subject to availability in the state where the applicable Mortgaged
Property is located); and
(d) evidence as to (i) whether any of the improvements on any
Mortgaged Property is in an area designated by the Federal Emergency
Management Agency as having special flood or mud slide hazards (a "Flood
Hazard Property") and (ii) if any of the improvements on any Mortgaged
Property is a Flood Hazard Property, (A) whether the community in which
such Mortgaged Property is located is participating in the National Flood
Insurance Program, (B) the applicable Loan Party's written acknowledgment
of receipt of written notification from the Administrative Agent (1) as to
the fact that such Mortgaged Property is a Flood Hazard Property and (2) as
to whether the community in which each such Flood Hazard Property is
located is participating in the National Flood Insurance Program and (C)
copies of insurance policies or certificates of insurance of the Borrower
and its Subsidiaries evidencing flood insurance reasonably satisfactory to
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the Administrative Agent and naming the Administrative Agent as sole loss
payee on behalf of the Lenders.
Failure to comply with the covenants set forth in this Section 4 shall be
an Event of Default.
5. Reaffirmation of Guaranty. Each Loan Party (i) acknowledges and
consents to all of the terms and conditions of this Amendment, (ii) affirms all
of its obligations under the Loan Documents and (iii) agrees that this Amendment
and all documents executed in connection herewith do not operate to reduce or
discharge its obligations under the Loan Documents.
6. Reaffirmation of Security Interests. Each Loan Party (i) affirms that
each of the Liens granted in or pursuant to the Loan Documents is valid and
subsisting and (ii) agrees that this Amendment shall in no manner impair or
otherwise adversely affect any of the Liens granted in or pursuant to the Loan
Documents.
7. Conditions Precedent. This Amendment shall become effective as of the
date hereof upon satisfaction of each of the following conditions precedent:
(a) Amendment Documents. Receipt by the Administrative Agent of
counterparts of this Amendment and the Security Agreement, each executed by
the Loan Parties and, in the case of this Amendment, the Required Lenders;
(b) Authorizing Resolutions. Receipt by the Administrative Agent of
resolutions of the board of directors (or equivalent governing body) of
each Loan Party authorizing and approving the terms of this Amendment, the
Security Agreement, the Mortgages (in the form provided the Parent as of
the date of this Amendment) and the other documents, instruments and
agreements executed in connection herewith, and the execution of all of the
foregoing by such Loan Party;
(c) Personal Property Collateral. Receipt by the Administrative Agent
of:
(i) searches of Uniform Commercial Code filings in the
jurisdiction of formation of each Loan Party, the jurisdiction of the
chief executive office of each Loan Party and each jurisdiction where
any Collateral is located, copies of the financing statements on file
in such jurisdictions and evidence that no Liens exist other than
Permitted Liens;
(ii) searches of ownership of, and Liens on, intellectual
property of each Loan Party in the appropriate governmental offices,
and
(iii) executed notices of grant of security interest in the form
required by the Security Agreement as are necessary, in the
Administrative Agent's sole discretion, to perfect the Administrative
Agent's Liens, for the benefit of itself and the Lenders, in the
intellectual property of the Loan Parties;
(d) Evidence of Insurance. Receipt by the Administrative Agent of
copies of insurance policies or certificates of insurance of the Loan
Parties evidencing liability and casualty insurance meeting the
requirements set forth in the Loan Documents, including, but not limited
to, naming the Administrative Agent as additional insured (in the case of
liability insurance) or loss payee (in the case of hazard insurance) on
behalf of the Lenders;
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(e) Legal Opinion. Receipt by the Administrative Agent of an opinion
of counsel to the Loan Parties regarding this Amendment and the
transactions contemplated hereby in form and substance reasonably
satisfactory to the Administrative Agent; and
(f) Fees.
(i) Receipt by the Administrative Agent, for the benefit of
each Lender, of a fee equal to twenty basis points (0.20%) on such
Lender's Revolving Commitment.
(ii) Receipt by the Administrative Agent of all other fees and
expenses owing in connection with this Amendment.
8. No Other Changes. Except as modified hereby, all of the terms and
provisions of the Loan Documents (including schedules and exhibits thereto)
shall remain in full force and effect.
9. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original and it shall not be necessary in making proof of this Amendment to
produce or account for more than one such counterpart.
10. Governing Law. This Amendment shall be deemed to be a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of New York.
[Signature Pages Follow]
9
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Second Amendment to be duly executed and delivered as of the date first
above written.
PARENT: C&D TECHNOLOGIES, INC., a Delaware corporation
By: /s/ Stephen E. Markert, Jr.
-----------------------------------
Name: Stephen E. Markert, Jr.
Title: Vice President and Chief Financial Officer
INTERNATIONAL: C&D INTERNATIONAL INVESTMENT HOLDINGS INC.,
a Delaware corporation
By: /s/ Robert T. Marley
-----------------------------------
Name: Robert T. Marley
Title: Vice President and Treasurer
GUARANTORS: C&D CHARTER HOLDINGS, INC., a Delaware corporation
C&D TECHNOLOGIES (DATEL), INC., a Delaware corporation
DATEL SYSTEMS, INC., a Massachusetts corporation
C&D DYNAMO CORP., a Delaware corporation
DYNAMO ACQUISITION CORP., a Delaware corporation
By: /s/ Robert T. Marley
-----------------------------------
Name: Robert T. Marley
Title: Vice President and Treasurer of each foregoing Guarantor
C&D TECHNOLOGIES (CPS) LLC, a Delaware limited liability company
By: /s/ Robert T. Marley
-----------------------------------
Name: Robert T. Marley
Title: Treasurer
DATEL HOLDING CORPORATION, a Delaware corporation
By: /s/ Robert T. Marley
-----------------------------------
Name: Robert T. Marley
Title: Treasurer
[SIGNATURE PAGES CONTINUE]
ADMINISTRATIVE
AGENT: BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ David A. Johanson
-----------------------------------
Name: David Johanson
Title: Vice President
LENDERS: BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line
Lender
By: /s/ Mary K. Giermek
-----------------------------------
Name: Mary Giermek
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ John R. Falb
-----------------------------------
Name: John R. Falb
Title: First Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ J Andrew Phelps
-----------------------------------
Name: J. Andrew Phelps
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Susan M. Graham
-----------------------------------
Name: Susan M. Graham
Title: Vice President
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ Joshua C. Becker
-----------------------------------
Name: Joshua C. Becker
Title: Assistant Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Meredith Jermann
-----------------------------------
Name: Meredith Jermann
Title: Vice President
CITIZENS BANK
By: /s/ MW Torie
-----------------------------------
Name: Mark W. Torie
Title: SVP
[SIGNATURE PAGES CONTINUE]
COMERICA BANK
By: /s/ Richard Hampson
-----------------------------------
Name: Richard C. Hampson
Title: Vice President
CALYON NEW YORK BRANCH
By: /s/ Michael Madnick
-----------------------------------
Michael Madnick
Director
By: /s/ Scott Chappelka
-----------------------------------
Scott R. Chappelka
Director
SOVEREIGN BANK
By: /s/ Karl F. Schultz
-----------------------------------
Name: Karl F. Schultz
Title: Vice President
Schedule 1
CHANGES IN LEGAL NAME, STATE OF FORMATION AND STRUCTURE
Datel Holding Corporation was merged into Cletadd Acquisition Corporation, a
Delaware corporation, on June 30, 2004, with the surviving corporation being
Datel Holding Corporation.
C&D Technologies (Datel), Inc. was formerly known as Datel, Inc.
C&D Technologies (CPS) LLC was formerly known as Dynamo Power Systems (USA) LLC,
a Delaware limited liability company.
Schedule 2
LOCATION OF CHIEF EXECUTIVE OFFICE
- ------------------------------------------- ------------------------------ ------------------ ---------------------------
Name Chief Executive Office Organizational Federal Tax
Location Number Identification Number
- ------------------------------------------- ------------------------------ ------------------ ---------------------------
1400 Union Meeting Road
C&D Technologies, Inc. Blue Bell, PA 19422 2075987 13-3314599
- ------------------------------------------- ------------------------------ ------------------ ---------------------------
300 Delaware Ave Suite 503
C&D Charter Holdings, Inc. Wilmington, DE 19801 2266418 51-0338385
- ------------------------------------------- ------------------------------ ------------------ ---------------------------
300 Delaware Ave Suite 506
C&D International Investment Holdings Inc. Wilmington, DE 19801 3293447 51-0403235
- ------------------------------------------- ------------------------------ ------------------ ---------------------------
11 Cabot Blvd
Datel Holding Corporation Mansfield, MA 02048-1151 2110050 33-1094702
- ------------------------------------------- ------------------------------ ------------------ ---------------------------
11 Cabot Blvd
C&D Technologies (Datel), Inc. Mansfield, MA 02048-1151 2124927 04-2967926
- ------------------------------------------- ------------------------------ ------------------ ---------------------------
11 Cabot Blvd
Datel Systems, Inc. Mansfield, MA 02048-1151 000612659 04-3446502
- ------------------------------------------- ------------------------------ ------------------ ---------------------------
300 Delaware Ave Suite 506
C&D Dynamo Corporation Wilmington, DE 19801 3823454 16-1706835
- ------------------------------------------- ------------------------------ ------------------ ---------------------------
4607 SE International Way
C&D Technologies (CPS) LLC Milwaukie, OR 97222 3847618 87-0732734
- ------------------------------------------- ------------------------------ ------------------ ---------------------------
300 Delaware Ave Suite 506
Dynamo Acquisition Corporation Wilmington, DE 19801 3850323 16-1706837
- ------------------------------------------- ------------------------------ ------------------ ---------------------------
Schedule 3
MORTGAGED PROPERTY
- ---------------------------------- ---------------------------------------------
C&D Technologies, Inc. 200 W Main Street, Attica, IN 47918-0279
- ---------------------------------- ---------------------------------------------
C&D Technologies, Inc. 1835 Industrial Blvd, Conyers, GA 30012
- ---------------------------------- ---------------------------------------------
C&D Technologies, Inc. 900 East Keefe Ave, Milwaukee, WI 53212
- ---------------------------------- ---------------------------------------------
THIRD AMENDMENT
THIS THIRD AMENDMENT (this "Amendment") dated as of April 29, 2005 to the
Credit Agreement referenced below is by and among C&D TECHNOLOGIES, INC., a
Delaware corporation (the "Parent"), C&D INTERNATIONAL INVESTMENT HOLDINGS INC.,
a Delaware corporation ("International" and together with the Parent, the
"Borrowers"), the Guarantors identified on the signature pages hereto, the
Lenders identified on the signature pages hereto and BANK OF AMERICA, N.A., as
Administrative Agent.
W I T N E S S E T H
WHEREAS, a $200 million revolving credit facility has been extended to the
Borrowers pursuant to the Amended and Restated Credit Agreement (as amended,
modified and supplemented, the "Credit Agreement") dated as of June 30, 2004
among the Borrowers, the Guarantors identified therein, the Lenders identified
therein and the Administrative Agent; and
WHEREAS, the Parent has requested a modification to the Credit Agreement
and the Required Lenders have agreed to the requested modifications on the terms
set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein but not otherwise defined
herein shall have the meanings provided to such terms in the Credit Agreement.
2. Amendment. In Section 1.01 of the Credit Agreement, the definition of
"Consolidated EBITDA" is amended to read as follows:
"Consolidated EBITDA" means, for any period for the Parent and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated
Net Income for such period plus the following to the extent deducted
in calculating such Consolidated Net Income: (a) Consolidated Interest
Charges for such period, (b) the provision for federal, state, local
and foreign income taxes payable by the Parent and its Subsidiaries
for such period, (c) the amount of depreciation and amortization
expense for such period, (d) non-cash charges incurred in connection
with asset impairment and the write-down of goodwill, (e) up to $2.5
million of charges incurred in the Parent's fiscal year ending January
31, 2006 in connection with severance matters, (f) non-cash
stock-based compensation expenses for such period, (g) up to $8.1
million of non-cash charges incurred as a result of the seller in the
Dynamo Transaction recording certain divestiture and restructuring
charges to the business unit purchased by the Borrower in the Dynamo
Transaction for the month of September 2004, (h) up to $7.9 million of
non-cash charges relating to a cash obsolescence reserve established
by the Borrower for inventory of the business unit purchased by the
Borrower in the Dynamo Transaction, (i) up to $2,351,015 in non-cash
charges relating to the Datel Transaction and (j) up to $1,432,650 in
non-cash charges relating to an additional cash obsolescence reserve,
physical inventory adjustments, fixed asset write-offs and adjustments
to sales returns and allowances reserve in connection with the Dynamo
Transaction, all as determined in accordance with GAAP.
3. Reaffirmation of Guaranty. Each Loan Party (i) acknowledges and
consents to all of the terms and conditions of this Amendment, (ii) affirms all
of its obligations under the Loan Documents and (iii) agrees that this Amendment
and all documents executed in connection herewith do not operate to reduce or
discharge its obligations under the Loan Documents.
4. Reaffirmation of Security Interests. Each Loan Party (i) affirms that
each of the Liens granted in or pursuant to the Loan Documents is valid and
subsisting and (ii) agrees that this Amendment shall in no manner impair or
otherwise adversely affect any of the Liens granted in or pursuant to the Loan
Documents.
5. Conditions Precedent. This Amendment shall become effective as of the
date hereof upon receipt by the Administrative Agent of counterparts of this
Amendment executed by the Loan Parties and the Required Lenders.
6. No Other Changes. Except as modified hereby, all of the terms and
provisions of the Loan Documents (including schedules and exhibits thereto)
shall remain in full force and effect.
7. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original and it shall not be necessary in making proof of this Amendment to
produce or account for more than one such counterpart.
8. Governing Law. This Amendment shall be deemed to be a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of New York.
[Signature Pages Follow]
2
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Third Amendment to be duly executed and delivered as of the date first
above written.
PARENT: C&D TECHNOLOGIES, INC., a Delaware corporation
By: /s/ Stephen E. Markert, Jr.
-----------------------------------
Name: Stephen E. Markert, Jr.
Title: Vice President and Chief Financial Officer
INTERNATIONAL: C&D INTERNATIONAL INVESTMENT HOLDINGS INC.,
a Delaware corporation
By: /s/ Robert T. Marley
-----------------------------------
Name: Robert T. Marley
Title: Vice President and Treasurer
GUARANTORS: C&D CHARTER HOLDINGS, INC., a Delaware corporation
C&D TECHNOLOGIES (DATEL), INC., a Delaware corporation
DATEL SYSTEMS, INC., a Massachusetts corporation
C&D DYNAMO CORP., a Delaware corporation
DYNAMO ACQUISITION CORP., a Delaware corporation
By: /s/ Robert T. Marley
-----------------------------------
Name: Robert T. Marley
Title: Vice President and Treasurer of each foregoing Guarantor
C&D TECHNOLOGIES (CPS) LLC, a Delaware limited liability company
By: /s/ Robert T. Marley
-----------------------------------
Name: Robert T. Marley
Title: Treasurer
DATEL HOLDING CORPORATION, a Delaware corporation
By: /s/ Robert T. Marley
-----------------------------------
Name: Robert T. Marley
Title: Treasurer
[SIGNATURE PAGES CONTINUE]
ADMINISTRATIVE
AGENT: BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ David A Johanson
-----------------------------------
Name: David Johanson
Title: Vice President
LENDERS: BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line
Lender
By: /s/ Mary Giermek
-----------------------------------
Name: Mary Giermek
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION
By:
-----------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ J Andrew Phelps
-----------------------------------
Name: J. Andrew Phelps
Title: Vice President
THE BANK OF NEW YORK
By:
-----------------------------------
Name:
Title:
ALLFIRST BANK
By:
-----------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
-----------------------------------
Name:
Title:
CITIZENS BANK
By: /s/ MW Torie
-----------------------------------
Name: Mark W. Torie
Title: SVP
[SIGNATURE PAGES CONTINUE]
COMERICA BANK
By: /s/ Richard Hampson
-----------------------------------
Name: Richard C. Hampson
Title: Vice President
CALYON NEW YORK BRANCH
By: /s/ James Gibson
-----------------------------------
James Gibson
Managing Director
By: /s/ Michael Madnick
-----------------------------------
Michael Madnick
Director
SOVEREIGN BANK
By: /s Karl F. Schultz
-----------------------------------
Name: Karl F. Schultz
Title: Vice President