FIFTH AMENDMENT
TO FINANCING AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO FINANCING AND SECURITY AGREEMENT (this "Amendment")
is made as of this 26th day of September, 1996, by and among CHARTER POWER
SYSTEMS, INC., a corporation organized and existing under the laws of the State
of Delaware ("Charter Power"), C&D CHARTER POWER SYSTEMS, INC., a corporation
organized and existing under the laws of the State of Delaware ("C&D Charter"),
INTERNATIONAL POWER SYSTEMS, INC., a corporation organized and existing under
the laws of the State of Arizona ("International"), RATELCO ELECTRONICS, INC., a
corporation organized and existing under the laws of the State of Delaware
("Ratelco"), C&D/CHARTER HOLDINGS, INC., a corporation organized and existing
under the laws of the State of Delaware ("Charter Holdings"), CHARTER POWER OF
CALIFORNIA, a corporation organized and existing under the laws of the State of
California ("Charter California"), POWER CONVERTIBLES CORPORATION, a corporation
organized and existing under the laws of the State of Arizona ("PCC"), PCC DE
MEXICO S.A. DE C.V. ("PCC Mexico"), POWER CONVERTIBLES IRELAND LIMITED ("PCC
Ireland") and LH RESEARCH, INCORPORATED, a corporation organized and existing
under the laws of the State of Delaware ("LH Research") (Charter Power, C&D
Charter, International, Ratelco, Charter Holdings and Charter California, PCC,
PCC Mexico, PCC Ireland and LH Research are herein collectively referred to as
the "Borrowers" and individually as a "Borrower"); NATIONSBANK, N.A., a national
banking association, in its capacity as a lender ("NationsBank"), FLEET BANK,
NATIONAL ASSOCIATION, a national banking association and successor in interest
to NatWest Bank N.A., being formerly known as National Westminster Bank NJ
("Fleet"), CORESTATES BANK, N.A., a national banking association ("CoreStates")
(NationsBank, CoreStates, and Fleet are herein collectively referred to as the
"Lenders" and individually, as a "Lender"); and NATIONSBANK, N.A., a national
banking association, in its capacity as agent for the Lenders (the "Agent");
Witnesseth:
RECITALS
A. The Lenders, the Borrowers and the Agent are parties to that certain
Financing and Security Agreement dated September 26, 1994 (as amended, restated,
supplemented or otherwise modified, the "Credit Agreement"). Under and subject
to the provisions of the Credit Agreement, the Lenders agreed to establish
jointly and severally in favor of the Existing Borrowers (i) a revolving credit
facility in a maximum principal amount not to exceed SIXTY-FIVE MILLION DOLLARS
($65,000,000) (the "Total Revolving Credit Committed Amount"), (ii) a term loan
facility (collectively, the "Term Loans") in an original principal amount not to
exceed FIFTEEN MILLION DOLLARS ($15,000,000) (the "Total Term Loan Committed
Amount") and (iii) a letter of credit facility as part of the Revolving Credit
Facility (the "Letter of Credit Facility") in a maximum principal amount not to
exceed EIGHT MILLION DOLLARS ($8,000,000) (the "Letter of Credit Committed
Amount").
B. Fleet has requested that the Borrowers, the Lenders and the Agent agree
to amend certain terms and conditions of the Credit
Agreement, and subject to the provisions of this Amendment, the Borrowers, the
Lenders and the Agent have so agreed; provided, that the Lenders, the Borrowers
and the Agent execute and deliver this Amendment.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrowers, the Lenders and the Agent hereby agree as follows:
1. The recitals set forth above are true and accurate in each and every
respect and are incorporated herein by reference. All capitalized terms used
herein but not specifically defined herein shall have the respective meanings
given such terms in the Credit Agreement, unless the context indicates or
dictates a contrary meaning.
2. The Credit Agreement is hereby amended as follows:
a. Section 2.1.7 on page 38 of the Credit Agreement is hereby deleted
in its entirety and the following is substituted in its place:
2.1.7 REVOLVING CREDIT UNUSED LINE FEE. The Borrowers shall
jointly and severally pay to the Agent, in arrears, for the ratable
benefit of the Lenders, a quarterly revolving credit unused line fee
(collectively, the "Revolving Credit Unused Line Fees" and
individually, a "Revolving Credit Unused Line Fee") in an amount to be
determined based upon the ratio of Funded Debt to EBITDA for the
rolling four (4) quarter month period covered by the then most recent
financial statements furnished or required to be furnished to the
Agent pursuant to and in the form required by Section 6.1.1(a) and
Section 6.1.1(c). Within three (3) Business Days of the Agent's
receipt of such financial statements in the form required, the Agent
shall calculate the ratio of Funded Debt to EBITDA for the then
rolling four (4) quarter period covered by such financial statements,
and shall notify the Borrowers and the Lenders of the Agent's
determination. If such financial statements are not furnished as and
when required, the Borrowers may not be permitted to select or change
an Interest Rate or an Interest Period. Following, the Agent's
determination of the Funded Debt to EBITDA ratio, the Revolving Credit
Unused Line Fee shall be equal to the per annum "Fee Percentage
Amount" as set forth below multiplied by the difference between (a)
the Total Revolving Credit Committed Amount in effect from time to
time and (b) the sum of (i) the average daily outstanding principal
balance of the Revolving Loan during the then preceding quarterly
period and (ii) the average daily face amount
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of all Letters of Credit outstanding during such quarterly period:
FUNDED DEBT TO EBITDA RATIO FEE AMOUNT
--------------------------- ----------
Less than 1.0 to 1.0 .125%
Greater than or equal to .15%
1.0 to 1.0, but less than
1.75 to 1.0
Greater than or equal to .18%
1.75 to 1.0, but less than
2.25 to 1.0
Greater than or equal to .22%
2.25 to 1.0, but less than
2.75 to 1.0
Greater than or equal to .25%
2.75 to 1.0, but not more
than 3.0 to 1.0
Greater than or equal to
3.0 to 1.0 .50%
b. Section 8.11 on page 128 of the Credit Agreement is hereby amended
to require that no amendment, modification, change or waiver shall be
effective to increase or decrease the amount of, or extend, any Lender's
Committed Amount, without the prior written consent of all Lenders and the
Agent.
c. The Credit Agreement is hereby amended to require that no
amendment, modification, change or waiver as to Section 6.1.14 (Net Worth),
Section 6.1.15 (Liabilities to Tangible Net Worth Ratio), Section 6.1.16
(Current Ratio), Section 6.1.17 (Fixed Charge Coverage Ratio), Section
6.1.18 (Funded Debt to EBITDA), Section or Section 6.2.7 (Capital
Expenditures) shall be effective without the prior consent of the Required
Lenders and the Agent.
d. The Credit Agreement is hereby amended to require that no waiver of
any Event of Default or Default shall be effective without the prior
consent of the Required Lenders and the Agent.
3. Nothing contained herein shall be interpreted to limit any rights which
the Required Lenders already have under the Credit Agreement.
4. The terms "this Agreement" as used in the Credit Agreement and the terms
"Credit Agreement" as used in any of the Financing Documents shall mean the
Credit Agreement as modified
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herein unless the context clearly indicates or dictates a contrary meaning.
5. The Borrowers and the Lenders will execute such confirmatory instruments
with respect to the Credit Agreement and/or any of the Financing Documents as
the Agent may reasonably require.
6. This Amendment may not be amended, changed, modified, altered or
terminated without in each instance the prior written consent of the Agent, the
Lenders and the Borrowers. This Amendment shall be construed in accordance with,
and governed by, the laws of the State of Maryland.
7. The Borrowers agree that neither the execution and delivery of this
Amendment nor any of the terms, provisions, covenants, or agreements contained
in this Amendment shall in any manner release, impair, lessen, waive, or
otherwise adversely affect the joint and several liability and obligations of
the Borrowers under the terms of the Credit Agreement.
8. This Agreement may be executed in any number of duplicate originals or
counterparts, each of such duplicate originals or counterparts shall be deemed
to be an original and all taken together shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the Borrowers, the Agent and the Lenders have caused
this Amendment to be executed under seal as of the date first above written.
ATTEST: CHARTER POWER SYSTEMS, INC.
/s/ ROBERT T. MARLEY By:/s/ STEPHEN E. MARKERT, JR.(Seal)
Name: Name:
Title: Treasurer Title:
ATTEST: C&D CHARTER POWER SYSTEMS, INC.
/s/ ROBERT T. MARLEY By:/s/ STEPHEN E. MARKERT, JR.(Seal)
Name: Name:
Title: Treasurer Title: V. Pres.
ATTEST: INTERNATIONAL POWER SYSTEMS, INC.
/s/ ROBERT T. MARLEY By:/s/ STEPHEN E. MARKERT, JR.(Seal)
Name: Name:
Title: Treasurer Title: V. Pres.
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ATTEST: RATELCO ELECTRONICS, INC.
/s/ ROBERT T. MARLEY By:/s/ STEPHEN E. MARKERT, JR.(Seal)
Name: Name:
Title: Treasurer Title: V. Pres
ATTEST: C&D/CHARTER HOLDINGS, INC.
/s/ STEPHEN E. MARKERT, JR. By: /s/ ROBERT T. MARLEY (Seal)
Name: Name:
Title: Director Title: Vice President
ATTEST: CHARTER POWER OF CALIFORNIA
/s/ ROBERT T. MARLEY By:/s/ STEPHEN E. MARKERT, JR.(Seal)
Name: Name:
Title: Treasurer Title: V. Pres
ATTEST: POWER CONVERTIBLES CORPORATION
/s/ ROBERT T. MARLEY By:/s/ STEPHEN E. MARKERT, JR.(Seal)
Name: Name:
Title: Title: Treasurer
ATTEST: PCC DE MEXICO S.A. DE C.V.
/s/ ROBERT T. MARLEY By:/s/ STEPHEN E. MARKERT, JR.(Seal)
Name: Name:
Title: Title:
ATTEST: POWER CONVERTIBLES IRELAND LIMITED
/s/ ROBERT T. MARLEY By:/s/ STEPHEN E. MARKERT, JR.(Seal)
Name: Name:
Title: Title:
ATTEST: LH RESEARCH, INCORPORATED
/s/ ROBERT T. MARLEY By:/s/ STEPHEN E. MARKERT, JR.(Seal)
Name: Name:
Title: Treasurer Title: V. Pres
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WITNESS: NATIONSBANK, N.A.
in its capacity as Agent
/s/ DEBORAH LLOYD By: /s/PATRICK M. MOORE (Seal)
Name: Patrick M. Moore
Title: Vice President
WITNESS: NATIONSBANK, N.A.
in its capacity as a Lender
/s/ DEBORAH LLOYD By: /s/ PATRICK M. MOORE (Seal)
Name: Patrick M. Moore
Title: Vice President
WITNESS: CORESTATES BANK, N.A.
in its capacity as a Lender
/s/ EDMUND GREEN By: /s/ KARL F. SCHULTZ (Seal)
A.V.P. Name:Karl F. Schultz
Title:Vice President
WITNESS: FLEET BANK, NATIONAL ASSOCIATION
(formerly known as NatWest Bank
N.A.) in its capacity as a Lender
_________________________ By: /s/ GARY P. KEARNS (Seal)
Name: Gary P. Kearns
Title: SVP
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