EXHIBIT 10.44


 


AMENDMENT

TO

LOAN AND SECURITY AGREEMENT


 


This Fifth Amendment to Loan and Security Agreement is entered into as
of August 13, 2002 (the “Amendment”), by and between COMERICA BANK-CALIFORNIA
(“Bank”) and MAXWELL TECHNOLOGIES, INC., MAXWELL ELECTRONIC COMPONENTS GROUP,
INC., I-BUS/PHOENIX, INC., PUREPULSE TECHNOLOGIES, INC., and MML ACQUISITION
CORP. (individually, a “Borrower” and collectively, the “Borrowers”).


 


RECITALS


 


Borrowers
and Bank are parties to that certain Loan and Security Agreement dated as of
February 26, 2001, as amended from time to time, including but not limited to
by that certain Amendment to Loan and Security Agreement dated as of May 25,
2001, that certain Second Amendment to Loan and Security Agreement dated as of
June 18, 2001, that certain Third Amendment to Loan and Security Agreement
dated as of December 21,2001, and that certain Fourth Amendment to Loan and
Security Agreement dated as of July 2,2002 (collectively, the Agreement”). The
parties desire to amend the Agreement in accordance with the terms of this
Amendment.


 


NOW,
THEREFORE, the parties agree as follows:


 


1.                                       Borrowers may not request or receive any
further Credit Extensions until October 16, 2002.


 


2.                                       Section 6.9 of the Agreement hereby is amended
in its entirety as follows:


 


“6.9
Minimum Cash. Borrowers shall at all times maintain with Bank (or
Comerica Securities, Inc. or Munder Capital) cash and cash equivalents in a
minimum aggregate amount of Seven Million Dollars ($7,000,000).”


 


3.                                       Section 6.10 of the Agreement hereby is
amended in its entirety as follows:


 


“6.10
Tangible Net Worth. Borrowers shall at all times through October 15,
2002 maintain a Tangible Net Worth of not less than Forty Two Million Dollars
($42,000,000). At all times after October 15,2002, Borrowers shall maintain a
Tangible Net Worth of not less than Forty Eight Million Dollars ($48,000,000).”


 


4.                                       Exhibit D to the Agreement hereby is replaced
with Exhibit D hereto.


 


5.                                       Unless otherwise defined, all initially
capitalized terms in this Amendment shall be as defined in the Agreement. The
Agreement, as amended hereby, shall be and remain in full force and effect in
accordance with its respective terms and hereby is ratified and confirmed in
all respects. Except as expressly set forth herein, the execution, delivery,
and performance of this Amendment shall not operate as a waiver of, or as an
amendment of, any right, power, or remedy of Bank under the Agreement, as in
effect prior to the date hereof. Each Borrower ratifies and reaffirms the continuing
effectiveness of all promissory notes, guaranties, security agreements,
mortgages, deeds of trust, environmental agreements, and all other instruments,
documents and agreements entered into in connection with the Agreement.


 

















 


6.                                       Each Borrower represents and warrants that the
representations and warranties contained in the Agreement are true and correct
as of the date of this Amendment, and that no Event of Default has occurred and
is continuing.


 


7.                                       This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.


 


8.                                       As a condition to the effectiveness of this
Amendment, Bank shall have received, in form and substance satisfactory to
Bank, the following:


 


(a)                                  This Amendment, duly executed by the
Borrowers;


 


(b)                                 An amount equal to all Bank Expenses incurred
to date; and


 


(c)   Such other documents, and
completion of such other matters, as Bank may reasonably deem necessary or
appropriate.


 


IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of the first
date above written.


 


	
   

  	
  MAXWELL
  TECHNOLOGIES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Donald M. Roberts

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MAXWELL
  ECTRONIC COMPONENTS GROUP, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Donald M. Roberts

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  I-BUS/PHOENIX,
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Donald M. Roberts

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PUREPULSE
  TECHNOLOGIES, INC,

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Donald M. Roberts

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MML
  ACQUISITION CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Donald M. Roberts

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  



 


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  COMERICA
  BANK-CALIFORNIA

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steve T. Stuckey

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  



 


3

















 


AMENDMENT

TO

LOAN AND SECURITY AGREEMENT


 


This Sixth Amendment to Loan and Security Agreement is entered into as
of October 31,2002 (the “Amendment”), by and between COMERICA BANK-CALIFORNIA
(“Bank”) and MAXWELL TECHNOLOGIES, INC. (“Parent”) and MML ACQUISITION CORP.
(individually, a “Borrower” and collectively, the “Borrowers”).


 


RECITALS


 


Borrowers and Bank are parties to that certain Loan and Security
Agreement dated as of February: 26, 2001, as amended from time to time,
including but not limited to by that certain Amendment to Loan and Security
Agreement dated as of May 25, 2001, that certain Second Amendment to Loan and
Security Agreement dated as of June 18, 2001, that certain Third Amendment to
Loan and Security Agreement dated as of December 21, 2001 (the “Third
Amendment”), that certain Fourth Amendment to Loan and Security Agreement dated
as of July 2, 2002, and that certain Fifth Amendment to Loan and Security
Agreement dated as of August 13,2002 (collectively, the “Agreement”).


 


In addition, Bank agreed to make the Term Loan (as defined in the Third
Amendment) to Parent under the terms and conditions set forth in the Term Loan
Agreement, the Note, Addendum to Note, and Environmental Indemnity (each as
defined in the Third Amendment and dated as of December 21, 2001)
(collectively, the “Term Loan Agreements”). Parent’s obligations under the Term
Loan Agreements are secured by the Collateral as well as by a Deed of Trust,
Security Agreement, and Fixture Filing (With Assignment of Rents and Leases)
recorded on December 26, 2001, as File Number 2001-0954268, in the office of
the County Recorder of San Diego County, California (the “Deed of Trust”), an
Assignment of Real Property Leases and Rents (the “Assignment”), and a UCC
fixture filing, each dated as of December 21, 2001. The Agreement, the Term
Loan Agreements, the Deed of Trust and the Assignment are collectively referred
to herein as the Agreements.


 


Further, effective as of October 9, 2002, Maxwell Electronic Components
Group, Inc., a California corporation (“MECG”), a former Borrower under the
Agreement, merged with and into Parent, with Parent continuing as the surviving
corporation (the “Merger”). Pursuant to the Loan Agreement, Bank must consent
to such Merger.


 


Parent desires to assume all obligations of MECG under the Agreement
(the” Assumption”). Parent and MECG have requested Bank’s consent to such
Merger, and Bank desires to grant such consent, provided Parent assumes all
obligations of MECG to Bank under the Agreement in accordance with this
Amendment.


 


Additionally, the parties desire to amend the Agreements in accordance
with the terms of this Amendment.


 


NOW,
THEREFORE, the parties agree as follows:


 


1.                                       To the extent
not already provided for in the agreement(s) setting forth the terms of the
Merger, or otherwise made effective as a consequence of such Merger, Parent
hereby assumes all obligations of MECG, including, but not limited to, the
payment of any amounts outstanding (including but not limited to Bank’s
expenses, fees, attorney’s fees, and collection fees), under the Agreements.
Parent confirms that, to secure such performance, Parent grants Bank a security
interest in all the Collateral,


 


4

















 


including any portion of the Collateral which was formerly owned by
MECG but is now owned by Parent as a result of such merger.


 


2.                                       Bank hereby
waives Borrowers’ default under Section 7.3 of the Agreement as it relates: to
the Merger.


 


3.                                       The following defined term in Section 1.1 of the Agreement is hereby amended as
follows:


 


“Credit Extension” means the issuance of credit cards under Section
2.1(d), the Term Loan under Section 2.1 (g), or any other extension of credit
by Bank for the benefit of Borrower hereunder.


 


4.                                       Bank hereby
waives Borrowers’ default under Section 6.10 of the Agreement, as in effect
prior to the date of this Amendment, for the period ending August 31,2002.


 


5.                                       Section 2.1(a) of the Agreement hereby is
amended in its entirety as follows:


 


“2.1(a)
Intentionally Omitted” 


 


“2.1(b) Intentionally Omitted.” 


 


“2.1(c)
Credit Card. Subject to the terms and conditions of this Agreement, Bank
agrees to issue or cause to be issued corporate credit cards for the executives
of Borrowers in an aggregate credit limit not to exceed Two Hundred Twenty Five
Thousand Five Hundred Dollars ($225,500) (the “Credit Card Sublimit”). The
terms and conditions (including repayment and fees) of such Credit Card
Sublimit shall be subject to the terms and conditions of the Bank’s standard
forms of application and agreement for corporate credit card(s), which
Borrowers hereby agree to execute.”


 


“2.1(d)
Intentionally Omitted” 


 


6.                                       Section 6.8 of
the Agreement hereby is amended in its entirety as follows:


 


“6.8
Intentionally Omitted.” 


 


7.                                       Section 6.9 of the Agreement hereby is amended
in its entirety as follows: 


 


“6.9
Intentionally Omitted”  


 


8.                                       Section 6.10 of the Agreement hereby is
amended in its entirety as follows:


 


“6.10
Tangible Net Worth. Borrowers shall at all times maintain a Tangible Net
Worth of not less than Twenty Four Million Dollars ($24,000,000).”


 


9.                                       Section 6.11 of the Agreement hereby is
amended in its entirety as follows: 


 


“6.11
Intentionally Omitted” 


 


10.                                 Exhibit D to the Agreement hereby is replaced
with Exhibit D hereto.


 


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11.                                 The references to “$6,000,000” and or “Six Million Dollars ($6,000,000) in the Term
Note (or otherwise in the Term Loan Agreements) hereby are replaced with”
$3,000,000” and “Three Million Dollars ($3,000,000),” respectively.


 


12.                                 In consideration of the foregoing amendment,
Parent assumes and agrees to pay the indebtedness evidenced by the Term Note as
hereby amended and Borrowers agree to pay and perform each and all of the
conditions and covenants required to be performed by Borrowers pursuant to the
Agreements.


 


13.                                 In order to induce Lender to execute this
Amendment, Parent represents and warrants that title to the real property
described in the Deed of Trust is vested in Maxwell Technologies, Inc., subject
only to those exceptions as shown on the preliminary title report dated as of
October 15, 2002, issued by Chicago Title Company.


 


14.                                 Unless otherwise defined, all initially
capitalized terms in this Amendment shall be as defined in the Agreements. The
Agreements, as amended hereby, shall be and remain in full force and effect in
accordance with their respective terms and hereby are ratified and confirmed in
all respects. Except as expressly set forth herein, the execution, delivery,
and performance of this Amendment shall not operate as a waiver of, or as an
amendment of, any right, power, or remedy of Bank under the Agreements, as in
effect prior to the date hereof. Each Borrower ratifies and reaffirms the
continuing effectiveness of all promissory notes, guaranties, security
agreements, mortgages, deeds of trust, environmental agreements, and all other
instruments, documents and agreements entered into in connection with the
Agreements.


 


15.                                 Each Borrower represents and warrants that the
representations and warranties contained in the Agreements are true and correct
as of the date of this Amendment, and that, except as expressly waived hereby,
no Event of Default has occurred and is continuing.


 


16.                                 This Amendment maybe executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.


 


17.                                 As a condition to the effectiveness of this
Amendment, Bank shall have received, in form and substance satisfactory to
Bank, the following:


 


a)                                                                                      This Amendment, duly executed by the Borrowers;


 


b)                                                                                     Corporate Resolutions to Borrow;


 


c)                                                                                      An amount sufficient to reduce the Term Loan
to $3,000,000, which amount maybe debited from Borrower’s account no. 1891-382036;


 


d)                                                                                     An amount equal to all Bank Expenses incurred
to date, which amount may be debited from any of Borrower’s account no. 1891-382036


 


e)                                                                                      $22,000.00 to satisfy the “unused line fee”
charged (pursuant to Section 2.5(a) of the Agreement) but not previously
collected, which amount may be debited from Borrower’s account no. 1891-382036;
and


 


f)                                                                                        Such other documents, and completion of such
other matters, as Bank may reasonably deem necessary or appropriate.


 


6

















 


IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the first date above written.


 


	
   

  	
  MAXWELL
  TECHNOLOGIES, INC.

  
	
   

  	
  By:

  	
  /s/
  James A. Baumker

  	
   

  
	
   

  	
  Title:

  	
  Chief
  Financial Officer

  	
   

  
	
   

  
	
   

  	
  MML
  ACQUISITION CORP.

  
	
   

  	
  By:

  	
  /s/
  James A. Baumker

  	
   

  
	
   

  	
  Title:

  	
  Chief
  Financial Officer

  	
   

  
	
   

  
	
   

  	
  COMERICA
  BANK-CALIFORNIA

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steve T. Stuckey

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  



 


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