EXHIBIT 10.1
AMENDMENT NO. 5 TO
LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 5 TO LOAN AND SECURITY AGREEMENT, dated as of July 20, 2007
(this "Amendment"), by and among Wachovia Bank, National Association, in its
capacity as agent pursuant to the Loan Agreement (as hereinafter defined) acting
for and on behalf of the financial institutions which are parties thereto as
lenders (in such capacity, "Agent"), the financial institutions which are
parties to the Loan Agreement as lenders (individually, each a "Lender" and
collectively, "Lenders"), C&D Technologies, Inc., a Delaware corporation
("Parent"), C&D Technologies (Datel), Inc., a Delaware corporation ("Datel"),
C&D Technologies (CPS) LLC, a Delaware limited liability company ("CPS, and
together with Parent and Datel, each individually a "Borrower" and collectively,
"Borrowers"), C&D Charter Holdings, Inc., a Delaware corporation ("Charter"),
C&D Dynamo Corp., a Delaware corporation ("Dynamo"), Dynamo Acquisition Corp., a
Delaware corporation ("Acquisition"), C&D International Investment Holdings
Inc., a Delaware corporation ("International") and Datel Holding Corporation, a
Delaware corporation ("Datel Holding", and together with Charter, Dynamo,
Acquisition and International, each individually a "Guarantor" and collectively,
"Guarantors". All capitalized terms used herein shall have the meanings assigned
thereto in the Loan Agreement unless otherwise defined herein.
W I T N E S S E T H :
WHEREAS, Agent, Lenders, Borrowers and Guarantors have entered into
financing arrangements pursuant to which Lenders (or Agent on behalf of Lenders)
have made and may make loans and advances and provide other financial
accommodations to Borrowers as set forth in the Loan and Security Agreement,
dated December 7, 2005, by and among Agent, Lenders, Borrowers and Guarantors
(as amended by Amendment No. 1 to Loan and Security Agreement, dated March 30,
2006, Consent, Waiver, Amendment No. 2 to Loan and Security Agreement, dated as
of June 14, 2006 and Consent, Amendment No. 3 to Loan and Security Agreement,
dated as of December 21, 2006 and Amendment No. 4 to Loan and Security
Agreement, dated as of April 13, 2007 as the same may hereafter be further
amended, modified, supplemented, extended, renewed, restated or replaced, the
"Loan Agreement"), and the other agreements, documents and instruments referred
to therein or at any time executed and/or delivered in connection therewith or
related thereto, including, but not limited to, this Amendment (all of the
foregoing, together with the Loan Agreement, as the same now exist or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, being collectively referred to herein as the "Financing Agreements");
WHEREAS, Borrowers have requested that Agent and Lenders agree to certain
amendments to the Loan Agreement, and Agent and Lenders are willing to agree to
such amendments, subject to the terms and conditions contained herein; and
WHEREAS, by this Amendment, Borrowers, Guarantors, Agent and Lenders
desire and intend to evidence such amendments;
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements
and covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Required Lenders. Section 1.122 of the Loan Agreement is hereby deleted
in its entirety and the following substituted therefor:
"1.122 "Required Lenders" shall mean, at any time, those Lenders
whose Pro Rata Shares aggregate more than sixty-five (65%) percent or more of
the aggregate of the Commitments of all Lenders, or if the Commitments shall
have been terminated, Lenders to whom more than sixty-five (65%) percent of the
then outstanding Obligations are owing."
2. Representations, Warranties and Covenants. Borrowers and Guarantors
represent, warrant and covenant with and to Agent and Lenders as follows, which
representations, warranties and covenants are continuing and shall survive the
execution and delivery hereof, and the truth and accuracy of, or compliance with
each, together with the representations, warranties and covenants in the other
Financing Agreements, being a continuing condition of the making of Loans by
Lenders (or Agent on behalf of Lenders) to Borrowers:
(a) neither the execution, delivery and performance of this
Amendment, or any other Financing Agreements in connection
herewith, nor the consummation of the transactions herein or
therein contemplated, are in contravention of law or any
indenture, agreement or undertaking to which any Borrower or
Guarantor is a party or by which any Borrower or Guarantor or
its property are bound, or violates any provision of the
Certificate of Incorporation or By-Laws (or similar governing
documents) of any Borrower or Guarantor;
(b) as of the date of this Amendment, no Default or Event of
Default exists or has occurred and is continuing;
(c) this Amendment and each other agreement or instrument to be
executed and/or delivered by any Borrower or Guarantor in
connection herewith or therewith have been duly authorized,
executed and delivered by all necessary action on the part of
such Borrower or Guarantor which is a party hereto and thereto
and, if necessary, its stockholders or equity holders, as the
case may be, and is in full force and effect as of the date
hereof, and the agreements and obligations of each Borrower
and Guarantor contained herein and therein constitute legal,
valid and binding obligations of such Borrower or Guarantor
enforceable against it in accordance with their terms, except
as such enforceability may be limited by bankruptcy,
insolvency, moratorium or similar laws limiting creditors'
rights generally and by general equitable principals; and
(d) no action of, or filing with, or consent of any Governmental
Authority, and no approval or consent of any other party, is
required to authorize, or is otherwise required in connection
with, the execution, delivery and performance by any Borrower
or Guarantor of this Amendment, or the
transactions contemplated hereby.
3. Conditions Precedent. The effectiveness of the amendments contained
herein shall only be effective upon the satisfaction of each of the following
conditions precedent in a manner reasonably satisfactory to Agent:
(a) Agent shall have received counterparts of this Amendment, duly
authorized, executed and delivered by Borrowers, Guarantors
and Lenders;
(b) Agent shall have received a true and correct copy of any
consent, waiver or approval to or of this Amendment, which any
Borrower or Guarantor is required to obtain from any other
Person, and such consent, approval or waiver shall be in form
and substance reasonably satisfactory to Agent; and
(c) after giving effect to this Amendment, no Default or Event of
Default shall exist or have occurred and be continuing.
4. General Release. Each Borrower and Guarantor may have certain Claims
(as hereinafter defined) against the Released Parties (as hereinafter defined)
regarding or relating to the Loan Agreement or the other Financing Agreements.
Agent, the Lenders, Borrowers and Guarantors desire to resolve each and every
one of such Claims in conjunction with the execution of this Amendment and thus
each Borrower and Guarantor makes the release contained in this Section 4. In
consideration of Agent's and Lenders' entering into this Amendment and agreeing
to the substantial concessions as set forth herein, each Borrower and Guarantor
hereby fully and unconditionally releases and forever discharges Agent and each
Lender and their respective directors, officers, employees, subsidiaries,
branches, affiliates, attorneys, agents, representatives, successors and assigns
and all persons, firms, corporations and organizations acting on any of their
behalves (collectively, the "Released Parties"), of and from any and all claims,
allegations, causes of action, costs or demands and liabilities, of whatever
kind or nature, from the beginning of the world up to and including the date on
which this Amendment is executed, whether known or unknown, liquidated or
unliquidated, fixed or contingent, asserted or unasserted, foreseen or
unforeseen, matured or unmatured, suspected or unsuspected, anticipated or
unanticipated, which such Borrower or Guarantor has, had, claims to have had or
hereafter claims to have against the Released Parties by reason of any act or
omission on the part of the Released Parties, or any of them, occurring prior to
the date on which this Amendment is executed, in any way affecting, concerning
or arising out of or founded upon this Amendment, the Loan Agreement or any of
the other Financing Agreements, including all such loss or damage of any kind
heretofore sustained or that may arise as a consequence of the dealings among
the parties arising from, in connection with or related to the administration or
enforcement of the Loans, the Obligations, the Loan Agreement or any of the
other Financing Agreements (collectively, all of the foregoing are the
"Claims"). Each Borrower and Guarantor represents and warrants that it has no
knowledge of any claim by it against the Released Parties or of any facts or
acts or omissions of the Released Parties which on the date hereof would be the
basis of a claim by such Borrower or Guarantor against the Released Parties
which is not released hereby. Each Borrower and Guarantor represents and
warrants that the foregoing constitutes a full and complete release of all
Claims.
5. Effect of this Amendment. This Amendment and the instruments and
agreements delivered pursuant hereto constitute the entire agreement of the
parties with respect to the subject matter hereof and thereof, and supersede all
prior oral or written communications, memoranda, proposals, negotiations,
discussions, term sheets and commitments with respect to the subject matter
hereof and thereof. Except as expressly provided herein, no other changes,
modifications or consents to the Financing Agreements are intended or implied,
and in all other respects the Financing Agreements are hereby specifically
ratified, restated and confirmed by all parties hereto as of the effective date
hereof. To the extent that any provision of the Loan Agreement or any of the
other Financing Agreements is inconsistent with the provisions of this
Amendment, the provisions of this Amendment shall control.
6. Further Assurances. Each Borrower and Guarantor shall execute and
deliver such additional documents and take such additional action as may be
requested by Agent or Lenders to effectuate the provisions and purposes of this
Amendment.
7. Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
with the internal laws of the State of New York but excluding any principles of
conflicts of law or other rule of law that would cause the application of the
law of any jurisdiction other than the laws of the State of New York.
8. Binding Effect. This Amendment shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns.
9. Counterparts. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment, it shall not be necessary
to produce or account for more than one counterpart thereof signed by each of
the parties hereto. Delivery of an executed counterpart of this Amendment by
telecopier or other method of electronic transmission shall have the same force
and effect as delivery of an original executed counterpart of this Amendment.
Any party delivering an executed counterpart of this Amendment by telecopier or
other method of electronic transmission also shall deliver an original executed
counterpart of this Amendment, but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Amendment as to such party or any other party.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their authorized officers as of the day and year
first above written.
AGENT AND LENDER
BORROWERS
WACHOVIA BANK, NATIONAL ASSOCIATION
C&D TECHNOLOGIES, INC.
By: /s/ John P. Brady By: /s/ Ian Harvie
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Title: Managing Director Title: VP, CFO
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C&D TECHNOLOGIES (DATEL), INC.
By: /s/ Ian Harvie
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Title: VP
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C&D TECHNOLOGIES (CPS) LLC
By: /s/ Ian Harvie
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Title: President
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GUARANTORS
C&D CHARTER HOLDINGS, INC.
By: /s/ John Brawner
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Title: President
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C&D DYNAMO CORP.
By: /s/ Ian Harvie
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Title: President
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DYNAMO ACQUISITION CORP.
By: /s/ Ian Harvie
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Title: President
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C&D INTERNATIONAL INVESTMENT HOLDINGS INC.
By: /s/ John Brawner
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Title: President
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DATEL HOLDING CORPORATION
By: /s/ Ian Harvie
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Title: Director
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