FOURTH AMENDMENT AND
WAIVER
THIS FOURTH AMENDMENT AND WAIVER (this “
Amendment ”) dated as of November 8, 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.
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 waiver and
certain modifications to the Credit Agreement and the Required
Lenders have agreed to the requested waiver and 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. Waiver . The
Required Lenders hereby waive any Default or Event of Default
arising solely from the Borrowers’ failure to comply with
Section 8.11 of the Credit Agreement for the fiscal quarter
ended on or about October 31, 2005. This waiver is a one-time
waiver and shall not be deemed to modify or affect the obligations
of the Borrowers and the Guarantors to comply with each and every
other obligation under the Credit Agreement and the other Loan
Documents from and after the date hereof.
3. Amendments . The
Credit Agreement is amended in the following respects:
3.1 Notwithstanding anything in the
Credit Agreement or any other Loan Document to the contrary, during
the period from the date hereof through December 31, 2005, the
Borrowers shall not request, and the Lenders shall be under no
obligation to make, Credit Extensions in an aggregate principal
amount in excess of the sum of (i) the Outstanding Amount of
all Loans and Letters of Credit on the date hereof plus (ii)
$20,000,000 minus (iii) mandatory prepayments on Loans
and Cash Collateralization of Letters of Credit made pursuant to
Section 2.05(b)(ii) of the Credit Agreement.
3.2 The following definitions are
added to Section 1.01 to read as follows:
“ Debt
Issuance ” means the issuance by the Parent or any
Subsidiary of any Indebtedness pursuant to
Section 8.03(k) or Section 8.03(m) or any
Indebtedness that it not permitted under Section 8.03
.
“
Equity Issuance ” means any issuance by the Parent or
any Subsidiary to any Person of its Capital Stock, other than
(a) any issuance of its Equity Interests pursuant to the
exercise of options or warrants, (b) any issuance of its
Equity Interests pursuant to the conversion of any debt securities
to equity or the conversion of any class of equity securities to
any other class of equity securities, (c) any issuance of
options or warrants relating to its Capital Stock, and (d) any
issuance by the Parent of its Capital Stock as consideration for a
Permitted Acquisition.
3.3 The definitions of “Net
Cash Proceeds” and “Subordinated Indebtedness” in
Section 1.01 are amended to read as follows:
“ Net
Cash Proceeds ” means the aggregate cash or Cash
Equivalents proceeds received by the Parent or any Subsidiary in
respect of any Debt Issuance or Equity Issuance, net of
(a) direct costs incurred in connection therewith and with any
concurrent or prior financing (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 Debt
Issuance or Equity Issuance.
“
Subordinated Indebtedness ” means any Indebtedness of
the Parent or any Subsidiary that by its terms is expressly
subordinated to the Obligations in a manner and to an extent
satisfactory to the Administrative Agent.
3.4 In the definition of
“Excluded Property�
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