Exhibit
10.5
CREDIT AGREEMENT
dated as of February 28,
2008,
as amended and restated as of
February 19, 2009,
among
TECHNITROL, INC.,
and
CERTAIN
SUBSIDIARIES
as Borrowers,
JPMORGAN CHASE BANK,
N.A.,
as the Administrative Agent, the Swing Line
Lender and
an L/C Issuer,
and
The Lenders Party Hereto
____________________
J.P. MORGAN SECURITIES
INC.,
Sole Lead Arranger and Sole Book
Runner
BANK OF AMERICA,
N.A.,
Syndication Agent
CITIBANK, N.A.,
and
DANSKE BANK A/S,
Co-Documentation Agents
TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
|
1.02 Other Interpretive
Provisions
|
41
|
|
1.04 Exchange Rates; Currency
Equivalents
|
43
|
|
1.05 Letter of Credit
Amounts
|
43
|
|
1.06 Effectuation of
Transactions
|
44
|
|
1.07 Status of Loan Documents
Obligations
|
44
|
|
1.08 Additional Alternative
Currencies
|
44
|
|
1.09 Concerning Excluded
Subsidiaries
|
44
|
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
|
2.02 Borrowings, Conversions
and Continuations of Committed Loans
|
46
|
|
2.03 Letters of
Credit
|
48
|
|
2.06 Termination or Reduction
of Commitments
|
64
|
|
2.07 Repayment of
Loans
|
65
|
|
2.10 Computation of Interest
and Fees
|
68
|
|
2.12 Payments Generally;
Administrative Agent's Clawback
|
68
|
|
2.13 Sharing of Payments by
Lenders
|
70
|
|
2.14 Reallocation of Revolving
Commitments.
|
71
|
|
2.15 Appointment of the Company
as Agent of the Borrowers
|
73
|
|
2.16 Concerning Subsidiary
Borrowers
|
73
|
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
|
3.03 Inability to Determine
Rates
|
77
|
|
3.04 Increased Costs; Reserves
on Eurocurrency Rate Loans.
|
78
|
|
3.05 Compensation for
Losses
|
79
|
|
3.06 Mitigation Obligations;
Replacement of Lenders
|
80
|
i
TABLE OF CONTENTS
(continued)
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
|
4.01 Conditions of Initial
Credit Extension
|
81
|
|
4.02 Conditions to all Credit
Extensions
|
84
|
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
|
5.01 Existence, Qualification
and Power
|
85
|
|
5.02 Authorization; No
Contravention
|
85
|
|
5.03 Governmental
Authorization; Other Consents
|
85
|
|
5.05 Financial Statements; No
Material Adverse Effect; No Internal Control Event
|
86
|
|
5.08 Ownership of
Property
|
87
|
|
5.09 Environmental
Compliance
|
88
|
|
5.13 Subsidiaries; Equity
Interests
|
89
|
|
5.14 Margin Regulations;
Investment Company Act
|
89
|
|
5.16 Compliance with
Laws
|
89
|
|
5.17 Intellectual Property;
Licenses, Etc
|
89
|
|
5.20 Representations as to
Foreign Loan Parties
|
90
|
|
5.22 Collateral
Matters
|
91
|
ARTICLE VI.
AFFIRMATIVE COVENANTS
|
6.01 Financial
Statements
|
92
|
|
6.02 Certificates; Other
Information
|
94
|
|
6.04 Payment of
Obligations
|
96
|
|
6.05 Preservation of Existence,
Etc
|
96
|
|
6.06 Maintenance of
Properties
|
97
|
|
6.07 Maintenance of
Insurance
|
97
|
|
6.08 Compliance with
Laws
|
97
|
|
6.09 Books and
Records
|
97
|
|
6.10 Inspection
Rights
|
97
|
ii
TABLE OF CONTENTS
(continued)
|
6.12 Approvals and
Authorizations
|
98
|
|
6.13 Additional Subsidiary
Guarantors
|
98
|
|
6.14 Information Regarding
Collateral
|
98
|
|
6.15 Further
Assurances
|
99
|
|
6.16 Certain Post-Restatement
Effective Date Collateral Obligations
|
99
|
ARTICLE VII.
NEGATIVE COVENANTS
|
7.04 Fundamental
Changes
|
105
|
|
7.06 Restricted Payments;
Certain Equity Issuances
|
107
|
|
7.07 Change in Nature of
Business
|
108
|
|
7.08 Transactions with
Affiliates
|
108
|
|
7.09 Burdensome
Agreements
|
108
|
|
7.11 Financial
Covenants
|
108
|
|
7.12 Capital Expenditures
|
109
|
|
7.14 Hazardous Materials;
Indemnification
|
110
|
|
7.15 Prepayment of
Indebtedness, Etc
|
110
|
|
7.17 Sonion Intercompany
Loan
|
110
|
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
|
8.01 Events of
Default
|
111
|
|
8.02 Remedies Upon Event of
Default
|
114
|
ARTICLE IX.
THE AGENTS
|
9.01 Appointment and
Authority
|
114
|
|
9.02 Rights as a Lender or L/C
Issuer
|
115
|
|
9.03 Exculpatory
Provisions
|
115
|
|
9.04 Reliance by
Agents
|
116
|
|
9.05 Delegation of
Duties
|
116
|
|
9.06 Resignation of
Agents
|
117
|
|
9.07 Non-Reliance on Agents and
Other Lenders
|
118
|
|
9.08 No Other Duties,
Etc
|
118
|
|
9.09 Administrative Agent May
File Proofs of Claim
|
118
|
|
9.10 Collateral and Guarantee
Matters.
|
119
|
iii
TABLE OF CONTENTS
(continued)
ARTICLE X.
MISCELLANEOUS
|
10.01 Amendments,
Etc
|
119
|
|
10.02 Notices; Effectiveness;
Electronic Communication
|
121
|
|
10.03 No Waiver; Cumulative
Remedies
|
123
|
|
10.04 Expenses; Indemnity;
Damage Waiver
|
124
|
|
10.05 Payments Set
Aside
|
126
|
|
10.06 Successors and
Assigns
|
126
|
|
10.07 Treatment of Certain
Information; Confidentiality
|
129
|
|
10.08 Right of
Setoff
|
130
|
|
10.09 Interest Rate
Limitation
|
131
|
|
10.10 Counterparts;
Integration; Effectiveness
|
131
|
|
10.13 Replacement of
Lenders
|
132
|
|
10.14 Governing Law;
Jurisdiction; Etc
|
133
|
|
10.15 Waiver of Jury
Trial
|
134
|
|
10.16 USA PATRIOT Act
Notice
|
134
|
|
10.17 Judgment
Currency
|
134
|
|
10.18 No Fiduciary
Duty
|
135
|
|
10.19 Concerning Sonion Loan
Parties
|
135
|
|
10.20 Release of Liens and
Guarantees
|
135
|
|
10.21 Defaulting
Lenders
|
137
|
ARTICLE XI.
COLLECTION ALLOCATION MECHANISM
iv
SCHEDULES
|
|
1.01(a)
|
Existing Letters of Credit
|
|
|
1.01(b)
|
Mandatory Cost Formulae
|
|
|
1.01(c)
|
Restatement Effective Date Subsidiary
Guarantors
|
|
|
1.01(d)
|
Subsidiaries Not Required to be Subsidiary
Guarantors
|
|
|
1.01(e)
|
Certain Collateral and Guarantee
Matters
|
|
|
1.01(f)
|
Restatement Effective Date Mortgaged
Properties
|
|
|
5.05
|
Supplement to Financial Statements
|
|
|
5.09
|
Environmental Compliance
|
|
|
7.01(b)
|
Existing Liens (other than precious
metals)
|
|
|
7.01(l)
|
Existing Liens (precious metals)
|
|
|
7.02(c)
|
Existing Investments
|
|
|
7.03(b)
|
Existing Indebtedness
|
|
|
7.13
|
Existing Leases
|
|
10.02
|
Agents’ Offices; Certain Addresses for
Notices
|
EXHIBITS
Form of
|
|
A
|
Assignment and Assumption
|
|
|
F
|
Borrower Joinder Agreement
|
CREDIT AGREEMENT dated as of
February 28, 2008, as amended and restated as of February 19,
2009, among TECHNITROL, INC., TECHNITROL DELAWARE, INC., PULSE
ENGINEERING, INC., AMI DODUCO, INC., PULSE DENMARK APS, PULSE
COMPONENTS APS (formerly known as SONION A/S ) , AMI
DODUCO HOLDING GMBH, AMI DODUCO NEDERLAND B.V., PULSE NEDERLAND
B.V., PULSE ELECTRONICS (SINGAPORE) PTE. LTD., TECHNITROL SINGAPORE
HOLDINGS PTE. LTD. , the LENDERS party hereto and JPMORGAN CHASE BANK,
N.A. , as the Administrative Agent, the Swing Line Lender and
an L/C Issuer.
The Company (such term and each
other capitalized term used but not otherwise defined herein having
the meaning specified in Article I) caused Pulse Denmark to
acquire (the “ Sonion Acquisition ”) all the
outstanding share capital of Sonion (now known as Pulse Components)
pursuant to a Share Purchase Agreement dated as of January 8, 2008,
among the Company, Sonion and each shareholder (other than certain
management shareholders) of Sonion (the “ Sonion Purchase
Agreement ”), for cash in the amount of approximately DKK
1,225,000,000 (the “ Sonion Acquisition Consideration
”) payable on the Closing Date.
In connection with the foregoing,
the Company requested the Lenders to extend credit in the form
of:
(a) Primary Revolving
Commitments under which (i) the Primary Revolving Borrowers
may obtain Committed Revolving Loans in Dollars or any Alternative
Currency, (ii) the Domestic Borrowers may obtain Swing Line
Loans in Dollars and (iii) the Primary Revolving Borrowers may
obtain Letters of Credit in Dollars or any Alternative
Currency;
(b) Singapore Revolving
Commitments under which the Singapore Revolving Borrowers may
obtain Committed Revolving Loans in Dollars or any Alternative
Currency; and
(c) Term Commitments under
which the Term Borrower may obtain Term Loans in
Dollars.
The proceeds of the Committed
Revolving Loans made on the Closing Date were used on such date
(a) to repay all loans and other amounts due and outstanding
under the Existing Company Credit Agreement, (b) to make the
Sonion Intercompany Loan, (c) to pay fees and expenses
incurred in connection with this Agreement and (d) in the case
of the Specified Committed Primary Revolving Borrowing, to pay any
portion of the Sonion Acquisition Consideration not paid as set
forth below. The proceeds of the Revolving Borrowings made after
the Closing Date may be used solely for general corporate purposes
of the Company and its Subsidiaries.
The proceeds of the Term Loans made
on the Closing Date were used, together with cash on hand of the
Company, (a) to pay the Sonion Acquisition Consideration and
(b) to pay fees and expenses relating to the Sonion
Acquisition.
Subsequent to the Closing Date, the
Company, the Required Lenders and the Administrative Agent have
entered into an Amendment Agreement dated as of February 19, 2009
(the “ Amendment Agreement ”), pursuant to which
the Original Credit Agreement has been amended and restated to be
in the form hereof.
In consideration of the mutual
covenants and agreements herein contained, the parties hereto
covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING
TERMS
1.01
Defined Terms . As used in this Agreement, the following
terms shall have the meanings set forth below:
“ Acquisition ”
means the acquisition of (a) more than 50% of the equity and more
than 50% of the Voting Equity Interests in another Person
(including through a merger or the purchase of an option, warrant
or convertible or similar type security to acquire such an equity
interest at the time it becomes exercisable by the holder thereof),
whether by purchase of such equity interest or upon exercise of an
option or warrant for, or conversion of securities into, such
equity interest, or (b) assets of another Person which
constitute all or substantially all of the assets of such Person or
of a line or lines of business conducted by such Person.
“ Administrative Agent
” means JPMCB in its capacity as administrative and
collateral agent under any of the Loan Documents, or any successor
administrative and collateral agent. Unless the context requires
otherwise, the term “Administrative Agent” shall
include any Affiliate of JPMCB that JPMCB shall have designated for
the purpose of performing any of its obligations hereunder or under
any other Loan Document in such capacity.
“ Administrative
Questionnaire ” means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
“ Affiliate ”
means, with respect to a specified Person, another Person that
(a) directly, or indirectly through one or more
intermediaries, Controls, or is Controlled by, or is under common
Control with, the Person specified, (b) beneficially owns 10%
or more of any class of the outstanding Voting Equity Interests of
the Person specified or (c) 10% or more of any class of the
outstanding Voting Equity Interests of which is beneficially owned
by the Person specified.
“ Agent ” means
the Administrative Agent, the London Administrative Agent or the
Singapore Administrative Agent.
“ Agent Parties ”
has the meaning specified in Section 10.02(c).
“ Agent’s Office
” means, with respect to any Agent, such Agent’s
address and, where applicable, account set forth on
Schedule 10.02, or such other address or account as such Agent
may from time to time notify to the Company and the
Lenders.
“ Aggregate Commitments
” means the Commitments of all the Lenders.
“ Aggregate Primary
Revolving Commitments ” means the Primary Revolving
Commitments of all the Primary Revolving Lenders.
“ Aggregate Singapore
Revolving Commitments ” means the Singapore Revolving
Commitments of all the Singapore Revolving Lenders.
“ Aggregate Term
Commitments ” means the Term Commitments of all the Term
Lenders.
“ Agreement ”
means this Credit Agreement.
“ Alternative Currency
” means (a) with respect to the Primary Revolving Subfacility
and Letters of Credit, Euro and each other currency approved in
accordance with Section 1.08, and (b) with respect to the
Singapore Revolving Subfacility, Euro, Yen and each other currency
approved in accordance with Section 1.08.
“ Amendment Agreement
” has the meaning specified in the preliminary statement to
this Agreement.
“ Applicable Agent
” means (a) with respect to any Term Loan, the London
Administrative Agent, (b) with respect to any Committed Primary
Revolving Loan made to a Domestic Borrower, (i) if such Loan is
denominated in Dollars, the Administrative Agent and (ii) if
such Loan is denominated in an Alternative Currency, the London
Administrative Agent, (c) with respect to any Committed Primary
Revolving Loan made to a Foreign Borrower, the London
Administrative Agent, (d) with respect to any Committed Singapore
Revolving Loan, the Singapore Administrative Agent and (e) with
respect to any Letter of Credit, and any payment hereunder that
does not relate to a particular Borrowing or Letter of Credit, the
Administrative Agent.
“ Applicable Commitment Fee
Rate ” means (a) prior to the Restatement Effective
Date, the rate per annum set forth as the “Applicable
Commitment Fee Rate” in the Original Credit Agreement, (b)
from the Restatement Effective Date until the delivery of the
Compliance Certificate accompanying the financial statements for
the first full fiscal quarter of the Company ending after the
Restatement Effective Date, 0.400% per annum and
(c) thereafter, a percentage per annum determined by reference
to the Consolidated Leverage Ratio in effect from time to time as
set forth below:
|
Level
|
Consolidated Leverage
Ratio
|
Applicable Commitment Fee
Rate
|
|
7
|
> 3.75 to 1.00
|
0.450%
|
|
6
|
> 3.25:1.00 and < 3.75:1.00
|
0.400%
|
|
5
|
> 2.75:1.00 and < 3.25:1.00
|
0.375%
|
|
4
|
> 2.25:1.00 and < 2.75:1.00
|
0.350%
|
|
3
|
> 1.50:1.00 and < 2.25:1.00
|
0.300%
|
|
2
|
> 0.75:1.00 and < 1.50:1.00
|
0.250%
|
|
Level
|
Consolidated Leverage
Ratio
|
Applicable Commitment Fee
Rate
|
|
1
|
< 0.75:1.00
|
0.225%
|
For purposes of the foregoing, (i)
the Consolidated Leverage Ratio shall be determined as of the end
of each fiscal quarter of the Company based upon the Compliance
Certificate delivered pursuant to Section 6.02(a) and (ii) any
increase or decrease in the Applicable Commitment Fee Rate
resulting from a change in the Consolidated Leverage Ratio shall
become effective as of the first Business Day immediately following
the date such a Compliance Certificate is delivered pursuant to
Section 6.02(a); provided that (A) if a Compliance Certificate is not
delivered when due in accordance with such Section, then the
pricing shall remain at the level indicated by the most recently
delivered Compliance Certificate until such new Compliance
Certificate is delivered, and if the Applicable Commitment Fee Rate
would have been set at a higher level during the period of
non-delivery of the Compliance Certificate, the Company shall pay
to the Applicable Agent, for the account of the Revolving Lenders
of the applicable Class, on demand all amounts which would have
accrued hereunder had the Compliance Certificate been delivered on
time and (B) if any Compliance Certificate shall prove to have
been inaccurate (regardless of whether the Commitments are in
effect or any Loans or Letters of Credit are outstanding when such
inaccuracy is discovered), and such inaccuracy shall have resulted
in the payment of commitment fees at rates lower than those that
were in fact applicable for any period (based on the actual
Consolidated Leverage Ratio), then the Company shall promptly
deliver to the Administrative Agent a corrected Compliance
Certificate and pay to the Applicable Agent, for account of the
Revolving Lenders (or former Revolving Lenders) of the applicable
Class as their interests may appear, on demand all amounts which
would have accrued hereunder had such Compliance Certificate not
contained any such inaccuracy (it being understood that nothing in
this sentence shall limit the rights of the Administrative Agent or
the Lenders under Section 2.08(c) or
Article VIII).
“ Applicable Foreign Loan
Party Documents ” has the meaning specified in
Section 5.20(a).
“ Applicable Primary
Revolving Percentage ” means, with respect to any Primary
Revolving Lender at any time, the percentage of the Aggregate
Primary Revolving Commitments represented by such Primary Revolving
Lender’s Primary Revolving Commitment at such time. If the
Aggregate Primary Revolving Commitments have terminated, then the
Applicable Primary Revolving Percentage of each Primary Revolving
Lender shall be determined based on the Applicable Primary
Revolving Percentage of such Primary Revolving Lender most recently
in effect, giving effect to any subsequent assignments.
“ Applicable Rate
” means (a) prior to the Restatement Effective Date, the rate
per annum set forth as the “Applicable Rate” in the
Original Credit Agreement, (b) from the Restatement Effective Date
until the delivery of the Compliance Certificate accompanying the
financial statements for the first full fiscal quarter of the
Company ending after the Restatement Effective Date, (i) 2.000% per
annum with respect to Base Rate Loans and (ii) 3.000% per annum
with respect to Eurocurrency Rate Loans and Letters of Credit and
(c) thereafter, a percentage per
annum determined by reference to the
Consolidated Leverage Ratio in effect from time to time as set
forth below:
|
Level
|
Consolidated Leverage
Ratio
|
Applicable Rate
|
|
|
|
Eurocurrency
Rate Loans and Letters of
Credit
|
Base Rate Loans
|
|
7
|
> 3.75 to 1.00
|
3.250%
|
2.250%
|
|
6
|
> 3.25:1.00 and < 3.75:1.00
|
3.000%
|
2.000%
|
|
5
|
> 2.75:1.00 and < 3.25:1.00
|
2.750%
|
1.750%
|
|
4
|
> 2.25:1.00 and < 2.75:1.00
|
2.500%
|
1.500%
|
|
3
|
> 1.50:1.00 and < 2.25:1.00
|
2.000%
|
1.000%
|
|
2
|
> 0.75:1.00 and < 1.50:1.00
|
1.500%
|
0.500%
|
|
1
|
< 0.75:1.00
|
1.250%
|
0.250%
|
For purposes of the foregoing, (i)
the Consolidated Leverage Ratio shall be determined as of the end
of each fiscal quarter of the Company based upon the Compliance
Certificate delivered pursuant to Section 6.02(a) and (ii) any
increase or decrease in the Applicable Rate resulting from a change
in the Consolidated Leverage Ratio shall become effective as of the
first Business Day immediately following the date such a Compliance
Certificate is delivered pursuant to Section 6.02(a);
provided that
(A) if a Compliance Certificate is not delivered when due in
accordance with such Section, then the pricing shall remain at the
level indicated by the most recently delivered Compliance
Certificate until such new Compliance Certificate is delivered, and
if the Applicable Rate would have been set at a higher level during
the period of non-delivery of the Compliance Certificate, the
Company shall pay to the Applicable Agent, for the account of the
Lenders of the applicable Class, on demand all amounts which would
have accrued hereunder had the Compliance Certificate been
delivered on time and (B) if any Compliance Certificate shall
prove to have been inaccurate (regardless of whether the
Commitments are in effect or any Loans or Letters of Credit are
outstanding when such inaccuracy is discovered), and such
inaccuracy shall have resulted in the payment of interest and fees
at rates lower than those that were in fact applicable for any
period (based on the actual Consolidated Leverage Ratio), then the
Company shall promptly deliver to the Administrative Agent a
corrected Compliance Certificate and pay to the Applicable Agent,
for account of the Lenders (or former Lenders) of the applicable
Class as their interests may appear, on demand all amounts which
would have accrued hereunder had such Compliance Certificate not
contained any such inaccuracy (it being understood that nothing in
this sentence shall limit the rights of the Administrative Agent or
the Lenders under Section 2.08(c) or
Article VIII).
“ Applicable Singapore
Revolving Percentage ” means, with respect to any
Singapore Revolving Lender at any time, the percentage of the
Aggregate Singapore Revolving Commitments represented by such
Singapore Revolving Lender’s Singapore Revolving Commitment
at such time. If the Aggregate Singapore Revolving Commitments have
terminated, then the Applicable Singapore Revolving Percentage of
each Singapore Revolving
Lender shall be determined based on
the Applicable Singapore Revolving Percentage of such Singapore
Revolving Lender most recently in effect, giving effect to any
subsequent assignments.
“ Applicable Term
Percentage ” means, with respect to any Term Lender at
any time, the percentage of (a) on or prior to the Closing
Date, the Aggregate Term Commitments represented by such Term
Lender’s Term Commitment at such time and
(b) thereafter, the aggregate principal amount of the Term
Loans of all the Term Lenders represented by the aggregate
principal amount of such Term Lender’s Term Loans at such
time.
“ Approved Fund ”
means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a
Lender.
“ Arranger ”
means J.P. Morgan Securities Inc., in its capacity as sole lead
arranger and sole book runner of the credit facilities provided for
under this Agreement.
“ Assignee Group
” means two or more Eligible Assignees that are Affiliates of
one another or two or more Approved Funds managed by the same
investment advisor.
“ Assignment and
Assumption ” means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any
party whose consent is required by Section 10.06(b)), and accepted
by the Administrative Agent, in substantially the form of
Exhibit A or any other form approved by the Administrative
Agent.
“ Audited Financial
Statements ” means the audited consolidated balance sheet
of the Company and its Subsidiaries as of December 29, 2006 and
December 30, 2005, and the related consolidated statements of
operations, changes in shareholders’ equity and cash flows
for each of the years in the three-year period ended December 29,
2006, including the notes thereto.
“ Auto-Extension Letter of
Credit ” has the meaning specified in
Section 2.03(b)(iii).
“ Bank of America
” means Bank of America, N.A. and its successors.
“ Base Rate ”
means, for any day, a rate per annum equal to the greatest of (a)
the Prime Rate in effect on such day, (b) the Federal Funds Rate in
effect on such day plus 1/2 of 1% and (c) the Eurocurrency Rate for
a one month Interest Period on such day (or if such day is not a
Business Day, the immediately preceding Business Day) plus 1%;
provided that, for the
avoidance of doubt, for purposes of this definition the
Eurocurrency Rate on any day shall be the rate per annum appearing
on the Reuters “LIBOR01” screen displaying British
Bankers’ Association Interest Settlement Rates (or on any
successor or substitute screen provided by Reuters, or any
successor to or substitute for such service, providing rate
quotations comparable to those currently provided on such screen,
as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to
deposits in the relevant currency in the London interbank market)
at approximately 11:00 a.m., London time, on such day for deposits
in Dollars with a maturity of one month. Any change in the Base
Rate due to a change in the Prime Rate, the Federal Funds Rate or
the Eurocurrency Rate shall be effective
from and including the effective
date of such change in the Prime Rate, the Federal Funds Rate or
the Eurocurrency Rate, respectively.
“ Base Rate Loan
” means a Loan that bears interest based on the Base Rate.
All Base Rate Loans shall be Swing Line Loans or Dollar Domestic
Loans.
“ Borrower Joinder
Agreement ” means a Borrower Joinder Agreement in
substantially the form of Exhibit F.
“ Borrower Materials
” has the meaning specified in Section 6.02.
“ Borrowers ”
means the Term Borrower, the Singapore Revolving Borrowers and each
other Primary Revolving Borrower.
“ Borrowing ”
means a Committed Borrowing or a Swing Line Borrowing.
“ Business Day ”
means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are
in fact closed in, the State of New York;
provided that:
(a) if such day relates to any
interest rate settings as to a Eurocurrency Rate Loan denominated
in any currency, any fundings, disbursements, settlements and
payments in respect of any such Eurocurrency Rate Loan, or any
other dealings to be carried out pursuant to this Agreement in
respect of any such Eurocurrency Rate Loan, the term
“Business Day” shall also exclude any such day on which
banks are not open for dealings in deposits in such currency in the
London interbank market;
(b) if such day relates to any
interest rate settings as to a Eurocurrency Rate Loan denominated
in Euro, any fundings, disbursements, settlements and payments in
Euro in respect of any such Eurocurrency Rate Loan, or any other
dealings in Euro to be carried out pursuant to this Agreement in
respect of any such Eurocurrency Rate Loan, the term
“Business Day” shall also exclude any day that is not a
TARGET Day; and
(c) if such day relates to any
fundings, disbursements, settlements and payments in respect of any
Committed Singapore Revolving Loan, or any other dealings to be
carried out pursuant to this Agreement in respect of any Committed
Singapore Revolving Loan, the term “Business Day” shall
also exclude any such day on which commercial banks are authorized
to close under the Laws of, or are in fact closed in, Singapore or
Hong Kong.
“ CAM ” means the
mechanism for the exchange of interests in the Term Facility, the
Primary Revolving Subfacility and the Singapore Revolving
Subfacility and the collections thereunder established under
Article XI.
“ CAM Exchange ”
means the exchange of the Lenders’ interests provided for in
Article XI.
“ CAM Exchange Date
” means the date on which any event referred to in
Section 8.01(f) shall occur in respect of the
Company.
“ CAM Percentage
”means, as to each Lender, a fraction (expressed as a
decimal) of which (a) the numerator shall be the sum of the
Dollar Equivalents (determined on the basis of Spot Rates
prevailing on the CAM Exchange Date) of the Designated Obligations
owed to such Lender (whether or not at the time due and payable)
immediately prior to the CAM Exchange and (b) the denominator
shall be the sum of the Dollar Equivalents (as so determined) of
the Designated Obligations owed to all the Lenders (whether or not
at the time due and payable) immediately prior to the CAM Exchange.
The CAM Percentage of any Lender (including after any
redetermination thereof pursuant to Article XI) shall be
determined by the Administrative Agent, shall be binding on each
Lender and its successors and assigns and shall be conclusive
absent manifest error.
“ Capital Leases
” means all leases that are or should be capitalized in
accordance with GAAP.
“ Cash Collateral
” means, with respect to any L/C Obligation, any cash (and
any proceeds thereof) deposited pursuant to this Agreement to Cash
Collateralize such L/C Obligation.
“ Cash Collateralize
” means, with respect to any L/C Obligations denominated in
any currency, to deposit cash in such currency in an account with
the Administrative Agent, in the name of the Administrative Agent
and for the benefit of the Primary Revolving Lenders or, in the
case of L/C Obligations arising under any Extended Letter of
Credit, for the benefit of the Primary Revolving Lenders and the
L/C Issuer that is the issuer thereof, as collateral for such L/C
Obligations, such deposit to be made in accordance with
Section 2.03(g). The term “ Cash
Collateralization ” shall have the meaning correlative
thereto.
“ Change in Law ”
means the occurrence, after the Closing Date, of any of the
following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule,
regulation or treaty or in the administration, interpretation or
application thereof by any Governmental Authority or (c) the
making or issuance of any request, guideline or directive (whether
or not having the force of law) by any Governmental
Authority.
“ Change of Control
” shall be deemed to have occurred at any time that any
“person” or “group” (each as defined in
Sections 13(d)(3) and 14(d)(2) of the Securities Exchange Act
of 1934) (a) becomes the “beneficial owner” (as
defined in Rule 13d-3 of the Securities Exchange Act of 1934),
directly or indirectly, of Voting Equity Interests of the Company
(or securities convertible into or exchangeable for such Voting
Equity Interests) representing 30% or more of the combined voting
power of all Voting Equity Interests of the Company (on a fully
diluted basis) or (b) otherwise has the ability, directly or
indirectly, to elect a majority of the board of directors of the
Company.
“ Class ” refers
(a) when used in reference to any Committed Loan or Committed
Borrowing, to whether such Committed Loan, or the Committed Loans
comprising such Committed Borrowing, are Term Loans, Committed
Primary Revolving Loans or Committed Singapore Revolving Loans, (b)
when used in reference to any Commitment, to whether
such
Commitment is a Term Commitment, a
Primary Revolving Commitment or a Singapore Revolving Commitment
and (c) when used in reference to any Lender, to whether such
Lender is a Term Lender, a Primary Revolving Lender or a Singapore
Revolving Lender.
“ Closing Date ”
means the first date on which all the conditions precedent in
Section 4.01 were satisfied or waived in accordance with
Section 10.01. The parties hereto acknowledge that the Closing Date
is February 28, 2008.
“ Code ” means
the Internal Revenue Code of 1986, as amended, and any regulations
promulgated thereunder.
“ Collateral ”
means any and all assets, whether real or personal, tangible or
intangible, on which Liens are purported to be granted pursuant to
the Security Documents as security for the Secured
Obligations.
“ Collateral and Guarantee
Requirement ” means, at any time, the requirement
that:
(a) the
Administrative Agent shall have received from the Company and each
other Loan Party:
(i) in
the case of a Domestic Loan Party,
(A) (I)
a counterpart of each of the Guarantee Agreement and the Domestic
Collateral Agreement, in each case duly executed and delivered on
behalf of such Person, or (II) in the case of any Person that
becomes a Domestic Loan Party after the Restatement Effective Date,
a supplement to each of the Guarantee Agreement and the Domestic
Collateral Agreement, in each case in the form specified therein,
duly executed and delivered on behalf of such Person,
(B) (I)
counterparts of a Domestic Mortgage with respect to each Mortgaged
Property owned by a Domestic Loan Party, duly executed and
delivered by the record owner of such Mortgaged Property, (II) a
policy or policies of title insurance issued by a nationally
recognized title insurance company insuring the Lien of each such
Domestic Mortgage as a valid and enforceable first Lien on the
Mortgaged Property described therein, free of any other Liens
except as permitted by Section 7.01, together with such
endorsements, coinsurance and reinsurance as the Administrative
Agent may reasonably request, (III) if any Mortgaged Property is
located in an area determined by the Federal Emergency Management
Agency to have special flood hazards, evidence of such flood
insurance as may be required under applicable law, including
Regulation H of the FRB, and (IV) such surveys, abstracts,
appraisals, legal opinions and other documents as the
Administrative Agent may reasonably request with respect to any
such Domestic Mortgage or Mortgaged Property, and
(C) with
respect to (I) each deposit account maintained by any Domestic Loan
Party with any depositary bank (other than (x) any deposit account
the funds in which are used, in the ordinary course of business,
solely for
the payment of salaries and wages,
workers’ compensation and similar expenses and (y) deposit
accounts the daily balance in which does not at any time exceed
$100,000 for any such account and $500,000 for all such accounts)
and (II) each securities account maintained by any Domestic Loan
Party with any securities intermediary (other than (x) any
securities account the aggregate daily asset value of which does
not at any time exceed $100,000 for any such account and $500,000
for all such accounts or (y) any “Rabbi Trust” or
similar irrevocable account or trust established solely for the
purpose of providing deferred compensation benefits for the
directors, officers and other employees of the Company and its
Subsidiaries), a counterpart, duly executed and delivered by the
applicable Domestic Loan Party and such depositary bank or
securities intermediary, as the case may be, of a control agreement
reasonably acceptable to the Administrative Agent;
(ii) in
the case of a Foreign Loan Party, a counterpart of (A) the
Guarantee Agreement or, in the case of any Person that becomes a
Foreign Loan Party after the Restatement Effective Date, a
supplement to the Guarantee Agreement in the form specified
therein, in each case duly executed and delivered on behalf of such
Person, and (B) one or more Security Documents reasonably
acceptable to the Administrative Agent required in order for the
Secured Obligations of such Foreign Loan Party to be secured,
subject to the last paragraph of this definition, by a security
interest in all Equity Interests owned by such Foreign Loan Party
(other than Equity Interests in Dormant Subsidiaries) and all or
substantially all tangible and intangible assets of such Foreign
Loan Party (including Mortgaged Properties, accounts receivable,
moveable assets (including inventory and equipment), contract
rights, intellectual property and other general intangibles,
intercompany indebtedness, bank accounts, cash and proceeds of the
foregoing) in which a security interest may be obtained under the
laws of the jurisdiction of incorporation, organization or
establishment of such Foreign Loan Party; and
(iii) documents
and opinions of the type referred to in Sections 4.01(a) and
4.01(d) with respect to each such Domestic Loan Party and Foreign
Loan Party, all in form and substance reasonably satisfactory to
the Administrative Agent;
(b) the
Administrative Agent shall have received, to the extent required by
the Domestic Collateral Agreement or any other Security Document,
certificates or other instruments representing all Equity Interests
in any Subsidiary owned by or on behalf of any Loan Party, together
with undated stock powers or other instruments of transfer with
respect thereto endorsed in blank;
(c) (i)
all Indebtedness of the Company and each other Subsidiary and (ii)
all Indebtedness of any other Person in a principal amount of
$5,000,000 or more that, in each case, is owing to any Loan Party
shall be evidenced by a promissory note (which may be a global
intercompany note) and shall have been pledged pursuant to the
Security Documents to the Administrative Agent, and the
Administrative Agent shall
have received all such promissory
notes, together with undated instruments of transfer with respect
thereto endorsed in blank;
(d) all
documents and instruments, including Uniform Commercial Code
financing statements, required by applicable law or reasonably
requested by the Administrative Agent to be filed, registered or
recorded to create the Liens intended to be created by the Security
Documents and to perfect such Liens to the extent required by, and
with the priority required by, the Security Documents, shall have
been filed, registered or recorded or delivered to the
Administrative Agent for filing, registration or recording;
and
(e) the
Company and each other Loan Party shall have obtained all consents
and approvals required to be obtained by it in connection with the
execution and delivery of the Guarantee Agreement and all Security
Documents to which it is a party, the performance of its
obligations under the Guarantee Agreement and such Security
Documents and the granting by it of the Liens under such Security
Documents.
The foregoing definition shall not
require the creation or perfection of pledges of or security
interests in, or the obtaining of title insurance, legal opinions
or other deliverables with respect to, particular assets of the
Loan Parties, or the provision of Guarantees by any Subsidiary, if,
and for so long as the Administrative Agent, in good faith
consultation with the Company, reasonably determines that the cost
of creating or perfecting such pledges or security interests in
such assets, or obtaining such title insurance, legal opinions or
other deliverables in respect of such assets, or providing such
Guarantees (taking into account any adverse tax consequences to the
Company and its Subsidiaries (including the application of
Section 956 of the Code and the imposition of withholding or
other material taxes) and any security interest filing or
registration fees or duties), shall be excessive in view of the
benefits to be obtained by the Lenders therefrom. Without limiting
the foregoing, the Administrative Agent is hereby authorized to
grant (and, in the case of the exceptions set forth in Part I of
such Schedule, shall grant) such exceptions to the requirements set
forth in this definition as are set forth on Schedule 1.01(e).
The Administrative Agent shall, and hereby is authorized to, grant
extensions of time for the creation and perfection of security
interests in or the obtaining of title insurance, legal opinions or
other deliverables with respect to particular assets or the
provision of any Guarantee by any Subsidiary (including extensions
in connection with assets acquired, or Subsidiaries formed or
acquired, after the Restatement Effective Date) where it reasonably
determines that such action cannot be accomplished without undue
effort or expense by the time or times at which it would otherwise
be required to be accomplished by this Agreement or the Security
Documents.
“ Commitment ”
means a Term Commitment, a Primary Revolving Commitment or a
Singapore Revolving Commitment.
“ Committed Borrowing
” means a borrowing consisting of simultaneous Committed
Loans of the same Class and Type, in the same currency and, in the
case of Eurocurrency Rate Loans, having the same Interest Period
made by Lenders pursuant to Section 2.01.
“ Committed Loan
” means a Term Loan or a Committed Revolving Loan.
“ Committed Loan Notice
” means a notice given pursuant to Section 2.02(a) of
(a) a Committed Borrowing, (b) a conversion of Committed
Loans that are Dollar Domestic Loans from one Type to the other or
(c) a continuation of Eurocurrency Rate Loans, which notice
shall be substantially in the form of Exhibit B or any other
form approved by the Administrative Agent.
“ Committed Primary
Revolving Loan ” has the meaning specified in
Section 2.01(b).
“ Committed Revolving
Loan ” means a Committed Primary Revolving Loan or a
Committed Singapore Revolving Loan.
“ Committed Singapore
Revolving Loan ” has the meaning specified in
Section 2.01(c).
“ Company ” means
Technitrol, Inc., a Pennsylvania corporation.
“ Compliance
Certificate ” means a certificate substantially in the
form of Exhibit C or any other form approved by the Administrative
Agent.
“ Consolidated Cash
Interest Expense ” means, for any period, for the Company
and its Subsidiaries on a consolidated basis, (a) the interest
expense accrued for such period with respect to Consolidated Funded
Debt, determined in accordance with GAAP, minus (b) to the extent
included in such interest expense, the sum of (i) non-cash amounts
attributable to amortization of debt discounts, (ii) non-cash
amounts attributable to the amortization of financing costs payable
in connection with the incurrence of Consolidated Funded Debt and
(iii) non-cash amounts attributable to accrued interest payable in
kind in such period, plus (c) any cash payments made during such
period in respect of items referred to in the preceding clause (b)
that have been, or are to be, amortized or paid in kind in other
periods.
“ Consolidated EBITDA
” means, for any period, for the Company and its
Subsidiaries, an amount, determined on a consolidated basis in
accordance with GAAP, equal to the sum of (a) the consolidated
net income of the Company and its Subsidiaries from continuing
operations for such period (excluding, to the extent included
therein, the income of any Subsidiary of the Company that is not a
wholly-owned Subsidiary of the Company to the extent such income is
attributable to the noncontrolling interests in such Subsidiary),
plus (b) without duplication and to the extent deducted in
determining such consolidated net income from continuing
operations, the sum of (i) consolidated interest expense for
such period, (ii) the provision for domestic and foreign taxes
for such period based on income or profits, (iii) depreciation
for such period, and (iv) amortization for such period;
provided , however , that there shall be excluded
from the foregoing computation, without duplication and to the
extent included in determining such consolidated net income from
continuing operations, (i) all non-cash income, gains and
losses for such period ( e.g. writing off of in-process research and
development, non-operating foreign currency income or expense and
non-cash restructuring and impairment charges),
provided that any cash
payment made with respect to any noncash items added back in
computing Consolidated EBITDA for any period pursuant to this
clause (i) shall be subtracted in computing Consolidated
EBITDA for the period in which such cash payment is made,
(ii) all gains or losses from the sales of assets not sold in
the ordinary course of business for such period, (iii) all
non-cash charges incurred in connection with changes to GAAP for
such period and (iv) in the case
of the fiscal quarters of the
Company ended June 27, 2008, September 26, 2008 and December 26,
2008, cash severance expense for each such fiscal quarter in an
amount not to exceed $1,500,000 with respect to the fiscal quarter
ended June 27, 2008, $500,000 with respect to the fiscal quarter
ended September 26, 2008 and $4,500,000 with respect to the fiscal
quarter ended December 26, 2008.
Notwithstanding the foregoing, (a)
Consolidated EBITDA shall be deemed to be $37,922,000 and
$38,496,000 for the fiscal quarters of the Company ended on
December 28, 2007, and September 28, 2007, respectively, and
(b) Consolidated EBITDA for the fiscal quarter of the Company ended
on March 28, 2008, shall be determined on a pro forma basis to
give effect to the Transactions occurring on the Closing Date as if
such Transactions had occurred on the first day of such fiscal
quarter, applying pro forma adjustment principles and methodologies
that are consistent with those used to determine the deemed
Consolidated EBITDA amounts referred to in clause (a).
For purposes of determining the
Consolidated Leverage Ratio, Consolidated EBITDA for any period
shall, if during such period the Company or any Subsidiary shall
have consummated a Material Acquisition or a Material Disposition,
be calculated after giving effect to such Material Acquisition or
Material Disposition on a Pro Forma Basis.
“ Consolidated Fixed
Charges ” means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the sum, without duplication,
of (a) Consolidated Cash Interest Expense for such period, (b) the
aggregate amount of scheduled principal payments made during such
period in respect of long-term Indebtedness of the Company and its
Subsidiaries (other than payments made by the Company or any
Subsidiary to the Company or a Subsidiary), (c) the aggregate
amount of principal payments (other than scheduled principal
payments) made during such period in respect of long-term
Indebtedness of the Company and its Subsidiaries, to the extent
that such payments reduced any scheduled principal payments that
would have become due in the quarter in which such payment is made,
(d) the aggregate amount of (i) principal payments on Capital
Leases, determined in accordance with GAAP, (ii) payments on
Synthetic Leases that would be accounted for as principal payments
if such Synthetic Leases were accounted for as Capital Leases in
accordance with GAAP and (iii) principal payments on other
Indebtedness of the type described in Section 7.03(e), in each
case made by the Company and its Subsidiaries during such period,
and (e) the aggregate amount of Taxes paid in cash by the
Company and its Subsidiaries during such period.
Notwithstanding the foregoing,
(a) Consolidated Fixed Charges shall be deemed to be
$8,200,000 and $3,600,000 for the fiscal quarters of the Company
ended on December 28, 2007, and September 28, 2007,
respectively, and (b) Consolidated Fixed Charges for the fiscal
quarter of the Company ended on March 28, 2008, shall be
determined on a pro forma basis to give effect to the Transactions
occurring on the Closing Date as if such Transactions had occurred
on the first day of such fiscal quarter, applying pro forma
adjustment principles and methodologies that are consistent with
those used to determine the deemed Consolidated Fixed Charge
amounts referred to in clause (a).
“ Consolidated Funded
Debt ” means, on any date, the sum for the Company and
its Subsidiaries of all (a) Indebtedness that would appear on a
consolidated balance sheet of the
Company prepared as of such date in
accordance with GAAP, (b) obligations under Capital Leases, (c)
obligations under Synthetic Leases that would be capitalized under
GAAP if they were accounted for as Capital Leases and (d)
obligations of the Company and its Subsidiaries as an account party
in respect of letters of credit or letters of guaranty, other than
contingent obligations in respect of any letter of credit or letter
of guaranty that does not support Indebtedness;
provided that,
notwithstanding anything to the contrary in Section 1.03(b),
liabilities arising out of leases, consignment agreements or
similar arrangements for precious, semi-precious or other metals
that are entered into by the Company or any Subsidiary in the
ordinary course of business shall be excluded from the definition
of the term “Consolidated Funded Debt” to the extent
such liabilities would not be required to be set forth on a
consolidated balance sheet of the Company prepared in accordance
with GAAP as in effect on the Closing Date.
“ Consolidated Leverage
Ratio ” has the meaning specified in
Section 7.11(b).
“ Consolidated Total
Assets ” means, as of any date of determination, the
value of all assets of the Company and its Subsidiaries, determined
on a consolidated basis in accordance with GAAP.
“ Contractual
Obligation ” means, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it
or any of its property is bound, other than the Loan
Documents.
“ Control ” means
the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract
or otherwise. The terms “ Controlling ” and
“ Controlled ” shall have meanings correlative
thereto.
“ Credit Extension
” means (a) the making of a Borrowing or (b) an L/C
Credit Extension.
“ Danish Loan Party
” means any Sonion Loan Party and any other Loan Party
incorporated, organized or established under the laws of
Denmark.
“ Debt Rating ”
means the rating by either S&P or Moody’s of the
Company’s non-credit-enhanced, senior unsecured long-term
debt.
“ Debtor Relief Laws
” means the Bankruptcy Code of the United States, and all
other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time
in effect and affecting the rights of creditors
generally.
“ Default ” means
any event or condition that constitutes an Event of Default or
that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
“ Default Rate ”
means (a) when used with respect to Loan Documents Obligations
other than Letter of Credit Fees, an interest rate per annum equal
to (i) the Base Rate plus (ii) the Applicable Rate
applicable to Base Rate Loans plus (iii) 2% per annum;
provided , however , that
(A) with respect to a Eurocurrency
Rate Loan, the Default Rate shall be an interest rate per annum
equal to the interest rate (including the Applicable Rate and
Mandatory Cost) otherwise applicable to such Loan plus 2% per annum
and (B) with respect to L/C Disbursements made in an Alternative
Currency, the Default Rate shall be an interest rate per annum
equal to (i) the interest rate that would be applicable to such L/C
Disbursement had such L/C Disbursement been a Eurocurrency Rate
Loan with an Interest Period of one month plus (ii) 2% per annum;
and (b) when used with respect to Letter of Credit Fees, a
rate per annum equal to the Applicable Rate applicable to Letters
of Credit plus 2% per annum.
“ Defaulting Lender
” means any Lender that (a) has failed to fund any
portion of the Committed Loans, participations in L/C Obligations
or participations in Swing Line Loans required to be funded by it
hereunder within one Business Day of the date required to be funded
by it hereunder, (b) has otherwise failed to pay over to the
Applicable Agent or any other Lender any other amount required to
be paid by it hereunder within one Business Day of the date when
due, unless such payment is the subject of a good faith dispute, or
(c) has been deemed insolvent or become the subject of a
bankruptcy or insolvency proceeding.
“ Designated Cash
Collateral ” has the meaning specified in Section
2.03(g).
“ Designated
Obligations ” means Loan Documents Obligations consisting
of (a) the outstanding principal of, and accrued and unpaid
interest on, the Term Loans and Committed Revolving Loans,
(b) participations in Swing Line Loans, (c) unreimbursed
L/C Disbursements and interest thereon and (d) commitment fees
and Letter of Credit Fees payable hereunder, in each case,
regardless of whether such Loan Documents Obligations are due and
payable.
“ Disposition ”
or “ Dispose ” means the sale, transfer,
license, lease or other disposition (including any sale and
leaseback transaction) of any property by any Person, including any
sale, assignment, transfer or other disposal, with or without
recourse, of any Equity Interests in any other Person, any notes or
accounts receivable or any rights and claims associated therewith.
For purposes of Sections 7.02 and 7.05, an issuance by any
Subsidiary of any Equity Interests in such Subsidiary to any Person
that has the effect of transferring an interest in such Subsidiary
from any holder of capital stock, partnership or membership
interests or other similar Equity Interests in such Subsidiary (a
“ parent entity ”) to any other Person (other
than the issuance of director’s qualifying shares and other
nominal amounts of Equity Interests that are required to be held by
such Person under applicable Laws) shall be treated as an issuance
by such Subsidiary of such Equity Interests to such parent entity
(and, in the case of any such deemed issuances to more than one
parent entity, such issuances shall be deemed to have been made
ratably in accordance with such parent entities’ Equity
Interests in such Subsidiary) and a subsequent Disposition by such
parent entity or parent entities of such Equity Interests to such
Person.
“ Disqualified Capital
Stock ” means any Equity Interest which, by its terms (or
by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event,
(a) matures (excluding any maturity as the result of an
optional redemption by the issuer thereof) or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in
part, on or prior to the date that is 180 days following the
Maturity Date, (b) is convertible into or exchangeable (unless
at the sole option of the issuer thereof) for (i) Indebtedness
or (ii) any
Equity Interests referred to in
clause (a) above, in each case at any time on or prior to the date
that is 180 days following the Maturity Date, or (c) contains
any mandatory repurchase obligation which may come into effect
prior to payment in full of all the Loan Documents Obligations;
provided that any
Equity Interests that would not constitute Disqualified Capital
Stock but for provisions thereof giving holders thereof (or the
holders of any security into or for which such Equity Interests is
convertible, exchangeable or exercisable) the right to require the
issuer thereof to redeem such Equity Interests upon the occurrence
of a change in control or an asset sale occurring prior to the date
that is 180 days following the Maturity Date shall not constitute
Disqualified Capital Stock if such Equity Interests provide that
the issuer thereof will not redeem any such Equity Interests
pursuant to such provisions prior to the repayment in full of all
the Loan Documents Obligations.
“ DKK ” means the
lawful money of Denmark.
“ Dollar ” and
“ $ ” mean lawful money of the United
States.
“ Dollar Domestic Loan
” means any Committed Primary Revolving Loan denominated in
Dollars and made to a Domestic Borrower.
“ Dollar Equivalent
” means, at any time, (a) with respect to any amount
denominated in Dollars, such amount and (b) with respect to
any amount denominated in any Alternative Currency, the equivalent
amount thereof in Dollars as determined by the Applicable Agent
pursuant to Section 1.04.
“ Domestic Borrower
” means the Company or any other Borrower that is a Domestic
Subsidiary.
“ Domestic Borrowing
Sublimit ” means $15,000,000. The Domestic Borrowing
Sublimit is part of, and not in addition to, the Aggregate Primary
Revolving Commitments.
“ Domestic Collateral
Agreement ” means the Domestic Collateral Agreement dated
as of February 19, 2009, among the Company, the other Domestic
Loan Parties and the Administrative Agent, together with all
supplements thereto.
“ Domestic Holding
Company ” means any Domestic Subsidiary that
(a) conducts no business or operations, (b) owns no
assets other than Equity Interests in Foreign Subsidiaries and
nominal assets related to maintenance of its existence and
(c) has no Indebtedness or other liabilities, other than
obligations relating to maintenance of its existence.
“ Domestic Loan Party
” means the Company or any other Loan Party that is a
Domestic Subsidiary.
“ Domestic Mortgage
” means a mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other security document granting a
Lien on any Mortgaged Property of any Domestic Loan Party to secure
the Secured Obligations. Each Domestic Mortgage shall be in form
and substance reasonably satisfactory to the Administrative
Agent.
“ Domestic Subsidiary
” means any Subsidiary that is organized and existing under
the laws of the United States, any state or territory thereof or
the District of Columbia, other than any such Subsidiary (including
Pulse Philippines, Inc.) that (a) is also organized and existing
under the laws of any jurisdiction other than the United States,
any state or territory thereof or the District of Columbia, (b) has
no business operations or assets in the United States or any state,
territory or district thereof and (c) has been organized under the
laws of the United States or any state, territory or district
thereof solely for tax purposes.
“ Dormant Subsidiary
” means any Subsidiary that (a) conducts no business or
operations, (b) owns no assets other than (i) nominal assets
related to maintenance of its existence, (ii) Equity Interests in
its direct Subsidiaries, (iii) any Specified Intercompany
Indebtedness and (iv) intercompany Indebtedness or receivables
(other than Specified Intercompany Indebtedness) in an amount not
to exceed at any time $1,000,000 for any Dormant Subsidiary and
$10,000,000 for all such Dormant Subsidiaries and (c) has no
Indebtedness or other liabilities, other than (i) obligations
relating to maintenance of its existence or (ii) Indebtedness owed
to the Company or any of its Subsidiaries.
“ Dutch Borrower
” means any Subsidiary that is a Borrower hereunder and that
is incorporated or established in The Netherlands.
“ Eligible Assignee
” means (a) a Lender, (b) an Affiliate of a Lender,
(c) an Approved Fund and (d) any other Person (other than
a natural person); provided that neither the Company nor any of its
Affiliates shall be an Eligible Assignee; and
provided further , however , that, (i) so long as no
Event of Default under Section 8.01(a) or 8.01(f), or
Section 8.01(b) with respect to any failure to comply with
Section 7.11, shall have occurred and be continuing and (ii)
other than in connection with any assignment requested by the
Company under Section 10.13 or resulting from a reallocation
under Section 2.14 or by operation of the CAM, an Eligible Assignee
shall include a Lender, an Affiliate of a Lender or another Person
only if it has advised the Administrative Agent that, through its
Lending Offices, it is capable of lending the applicable
Alternative Currencies to the relevant Borrowers (other than any
extensions of credit to the Singapore Revolving Borrowers under the
Primary Revolving Subfacility) without the imposition of any
additional Indemnified Taxes.
“ EMU Legislation
” means the legislative measures of the European Council for
the introduction of, changeover to or operation of a single or
unified European currency.
“ Environmental Laws
” means, collectively, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, the
Superfund Amendments and Reauthorization Act of 1986, the Resource
Conservation and Recovery Act, the Toxic Substances Control Act, as
amended, the Clean Air Act, as amended, the Clean Water Act, as
amended, any other “Superfund” or
“Superlien” law or any other Federal or applicable
state, local or foreign statute, law, ordinance, code, rule,
regulation, order or decree relating in any way to the environment
or natural resources or regulating, relating to, or imposing
liability or standards of conduct concerning, any hazardous, toxic
or dangerous waste, substance or material, as now or at any time
hereafter in effect.
“ Environmental
Liability ” means all liabilities, obligations, damages,
losses, claims, actions, suits, judgments, orders, fines,
penalties, fees, expenses and costs (including administrative
oversight costs, natural resource damages and remediation costs),
whether contingent or otherwise, directly or indirectly resulting
from or based upon (a) violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
“ Equity Interests
” means, with respect to any Person, shares of capital stock
of (or other ownership or profit interests in) such Person,
warrants, options or other rights for the purchase or acquisition
from such Person of shares of capital stock of (or other ownership
or profit interests in) such Person, securities convertible into or
exchangeable for shares of capital stock of (or other ownership or
profit interests in) such Person or warrants, rights or options for
the purchase or acquisition from such Person of such shares (or
such other interests), and other ownership or profit interests in
such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such
shares, warrants, options, rights or other interests are
outstanding on any date of determination.
“ ERISA ” means
the Employee Retirement Income Security Act of 1974, as amended
from time to time, and any successor statute and all rules and
regulations promulgated thereunder.
“ ERISA Affiliate
” means, as applied to the Company, any Person or trade or
business which is a member of a group which is under common control
with the Company, who, together with the Company, is treated as a
single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
“ ERISA Event ”
means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Company or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which
it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations that
is treated as such a withdrawal under Section 4062(e) of ERISA;
(c) any failure by any Pension Plan to satisfy the minimum
funding standard (within the meaning of Section 412 of the Code or
Section 302 of ERISA) applicable to such Pension Plan, whether or
not waived; (d) the filing, pursuant to Section 412(c) of
the Code or Section 302(c) of ERISA, of an application for a waiver
of the minimum funding standard with respect to any Pension Plan;
(e) a determination by such Plan’s enrolled actuary that
any Pension Plan is, or is expected to be, in “at-risk”
status (as defined in Section 303(i)(4) of ERISA or Section
430(i)(4) of the Code); (f) a complete or partial withdrawal
by the Company or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization;
(g) the receipt by the Company or any ERISA Affiliates of the
Company of any notice, or the receipt by any Multiemployer Plan of
any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of
ERISA or in endangered or critical status, within the meaning of
Section 305 of ERISA; (h) the filing of
a notice of intent to terminate a
Pension Plan, the treatment of a Plan amendment as a termination
under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (i) an event or condition which
constitutes grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan
or Multiemployer Plan; or (j) the imposition of any liability
under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Company or any
ERISA Affiliate.
“ Euro ” and
“ € ” mean the lawful currency of the
Participating Member States introduced in accordance with the EMU
Legislation.
“ Eurocurrency Base
Rate ” means, with respect to any Eurocurrency Rate Loan
for any Interest Period, the rate per annum appearing on the
Reuters “LIBOR01” screen displaying British
Bankers’ Association Interest Settlement Rates (or on any
successor or substitute screen provided by Reuters, or any
successor to or substitute for such service, providing rate
quotations comparable to those currently provided on such screen,
as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to
deposits in the relevant currency in the London interbank market)
at approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period, as the rate for
deposits in the relevant currency with a maturity comparable to
such Interest Period. In the event that such rate is not available
at such time for any reason, then the “Eurocurrency Base
Rate” with respect to such Eurocurrency Rate Loan for such
Interest Period shall be the rate per annum at which deposits in
the relevant currency, in the approximate amount of such
Eurocurrency Rate Loan and for a maturity comparable to such
Interest Period, are offered by the principal London office of the
Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest
Period.
“ Eurocurrency Borrowing
Minimum ” means (a) in the case of a Committed Borrowing
denominated in Dollars, $5,000,000, (b) in the case of a Committed
Borrowing denominated in Euros, €3,000,000 and (c) in the
case of a Committed Borrowing denominated in any other Alternative
Currency, an amount the Dollar Equivalent of which is equal to
approximately $5,000,000.
“ Eurocurrency Borrowing
Multiple ” means (a) in the case of a Committed Borrowing
denominated in Dollars, $1,000,000, (b) in the case of a Committed
Borrowing denominated in Euros, €500,000 and (c) in the
case of a Committed Borrowing denominated in any other Alternative
Currency, an amount the Dollar Equivalent of which is equal to
approximately $1,000,000.
“ Eurocurrency Rate
” means, for any Interest Period with respect to a
Eurocurrency Rate Loan, a rate per annum (rounded upward, if
necessary, to a whole multiple of 1/100th of 1%) determined by the
Administrative Agent pursuant to the following formula:
|
Eurocurrency Rate =
|
Eurocurrency Base Rate
1.00 – Eurocurrency Reserve
Percentage
|
“ Eurocurrency Rate
Loan ” means a Committed Loan that bears interest at a
rate based on the Eurocurrency Rate. Eurocurrency Rate Loans may be
denominated in Dollars or in an Alternative Currency. All Committed
Loans denominated in an Alternative Currency, or denominated in
Dollars but made to a Foreign Borrower, must be Eurocurrency Rate
Loans.
“ Eurocurrency Reserve
Percentage ” means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal) in effect
on such day, whether or not applicable to any Lender, under
regulations issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency, supplemental
or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as “Eurocurrency
liabilities”). The Eurocurrency Rate for each outstanding
Eurocurrency Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurocurrency Reserve
Percentage.
“ Event of Default
” has the meaning specified in Section 8.01.
“ Excluded Subsidiaries
” means Full Rise Electronic Co. Ltd., a company organized
under the laws of the Republic of China (Taiwan), and its
Subsidiaries. Subject to Section 1.09, (a) for purposes
of this Agreement and the other Loan Documents, the Excluded
Subsidiaries shall be deemed not to be Subsidiaries of the Company
and (b) in furtherance of the foregoing, for purposes of
Section 7.11 and the related definitions, references to any
financial statement items being determined on a consolidated basis
for the Company or for the Company and its Subsidiaries shall be
determined on a consolidated basis for the Company and its
Subsidiaries other than the Excluded Subsidiaries.
“ Excluded Subsidiaries
Redesignation ” has the meaning specified in
Section 1.09.
“ Excluded Taxes
” means, with respect to any Agent, any Lender, any L/C
Issuer or any other recipient of any payment to be made by or on
account of any obligation of any Borrower hereunder, (a) taxes
imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net
income taxes), by the jurisdiction (or any political subdivision
thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any
Lender, in which its applicable Lending Office is located, (b) any
branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction referred to in the preceding
clause (a) and (c) except as provided in the following
sentence, in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Company under Section 10.13 or a
Lender or Affiliate of a Lender holding its Commitment or any Loan
Documents Obligations as a result of a reallocation under
Section 2.14 or by operation of the CAM), any withholding tax
that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party hereto (or designates a
new Lending Office) or is attributable to such Foreign
Lender’s failure or inability (other than as a result of a
Change in Law) to comply with Section 3.01(e), except to the
extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the applicable
Borrower with respect to such withholding tax pursuant to
Section 3.01(a). Notwithstanding anything to the contrary
contained in this definition, “Excluded Taxes” shall
not include any withholding tax imposed at any time on payments
made by or on behalf of a Foreign Loan Party to any Lender or L/C
Issuer
hereunder or under any other Loan
Document, provided that such Person shall have complied with the
last paragraph of Section 3.01(e).
“ Existing CapEx Carry-Over
Amount ” means the aggregate amount, but not in excess of
$30,000,000, of the capital expenditures permitted to be made by
the Company and its Subsidiaries under the Existing Company Credit
Agreement during the fiscal year of the Company ended December 29,
2007, and not so made during such fiscal year. The Existing CapEx
Carry-Over Amount shall be conclusively determined based on the
certificate of a Responsible Officer of the Company delivered
pursuant to Section 4.01(a)(vii).
“ Existing Company Credit
Agreement ” means that certain Credit Agreement dated as
of October 14, 2005, among the Company, the Subsidiaries party
thereto, Bank of America, as agent, and a syndicate of
lenders.
“ Existing Letters of
Credit ” means the existing letters of credit described
on Schedule 1.01(a) hereto.
“ Existing Sonion Credit
Agreement ” means that certain Credit Agreement dated as
of March 14, 2006, among Sonion, Danske Bank, as agent, and a
syndicate of lenders.
“ Extended Letter of
Credit ” means any Letter of Credit the expiry date of
which would occur after the Letter of Credit Expiration Date,
provided that (a) the
L/C Issuer that is the issuer thereof shall have consented, in its
sole discretion, to the designation of such Letter of Credit as an
“Extended Letter of Credit” and (b) the Primary
Revolving Borrower for whose account such Letter of Credit is
issued shall have Cash Collateralized L/C Obligations arising under
such Letter of Credit prior to the date of issuance thereof (or, if
such Letter of Credit shall be an Auto-Extension Letter of Credit,
at least five Business Days prior to the last date on which the
applicable L/C Issuer may give a Non-Extension Notice with respect
thereto, if, failing delivery of such Non-Extension Notice on such
date, the expiry date of such Letter of Credit shall automatically
be required to be extended to a date occurring after the Letter of
Credit Expiration Date) in an amount equal to 105% of the amount of
such Letter of Credit.
“ Federal Funds Rate
” means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such
day; provided that
(a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding
Business Day, and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to JPMCB on such day on such
transactions as determined by the Administrative Agent.
“ Fee Letter ”
means the letter agreement dated January 8, 2008, among the
Company, the Administrative Agent and the Arranger.
“ Foreign Borrower
” means any Borrower that is a Foreign Subsidiary.
“ Foreign Lender
” means, with respect to any Borrower, any Lender that is
organized under the laws of a jurisdiction other than that in which
such Borrower is resident for tax purposes. For purposes of this
definition, the United States, each State thereof and the District
of Columbia shall be deemed to constitute a single
jurisdiction.
“ Foreign Loan Party
” means any Loan Party that is a Foreign
Subsidiary.
“ Foreign Subsidiary
” means any Subsidiary that is not a Domestic
Subsidiary.
“ FRB ” means the
Board of Governors of the Federal Reserve System of the United
States.
“ Fund ” means
any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary
course of its business.
“ GAAP ” means
generally accepted accounting principles in the United States, as
in effect from time to time (but subject to Section
1.03(b)).
“ German Restricted Loan
Party ” means any Loan Party incorporated, organized or
established under the laws of Germany that is, or the general
partner with unlimited personal liability of which is, subject to
capital maintenance or other rules restricting its ability to
guarantee the Guaranteed Obligations or to provide security for the
Secured Obligations or diminishing the commercial value of such
guarantee or security and which rules are not fully suspended by
the existence of a domination agreement (
Beherrschungsvertrag ) with its parent as dominating entity
( herrschende Gesellschaft ).
“ Governmental
Authority ” means any federal, state, municipal, national
or other governmental department, commission, board, bureau, court,
agency or instrumentality or political subdivision thereof or any
entity or officer exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any
government or any court, in each case whether associated with a
state of the United States, the United States, or a foreign entity
or government.
“ Guarantee ”
means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation payable
or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and
including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation, (ii) to purchase
or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other
obligation of the payment or performance of such Indebtedness or
other obligation, (iii) to maintain working capital, equity capital
or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other obligation, or
(iv) entered into for the purpose of assuring in any other manner
the obligee in respect of such Indebtedness or other obligation of
the payment or performance thereof or to protect such obligee
against loss in respect thereof (in whole or in part), or (b) any
Lien on any assets of such Person securing any Indebtedness or
other obligation of any other Person, whether
or not such Indebtedness or other
obligation is assumed by such Person (or any right of any holder of
such Indebtedness to obtain any such Lien); provided
that the term
“Guarantee” shall not include endorsements of
negotiable instruments for deposit or collection. The amount of any
Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing
Person in good faith. The term “Guarantee” as a verb
has a corresponding meaning.
“ Guarantee Agreement
” means the Master Guarantee Agreement dated as of February
28, 2008, among the Loan Parties and the Administrative Agent,
together with all supplements thereto.
“ Guaranteed Party
” has the meaning specified in the Guarantee
Agreement.
“ Hazardous Materials
” means any hazardous, toxic or dangerous waste, substance or
material (including petroleum products or byproducts), the
generation, handling, storage, use, disposal, treatment, release or
emission of which, or exposure to which, is subject to any
Environmental Law in effect on any date.
“ Honor Date ”
has the meaning specified in Section 2.03(c)(i).
“ IFRS ” means
the international financial reporting standards as in effect from
time to time.
“ Indebtedness ”
means, as to any Person at a particular time, without duplication,
all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all indebtedness,
obligations and liabilities of such Person for borrowed
money;
(b) all obligations of such
Person arising under letters of credit (whether standby or
commercial), bankers’ acceptances, bank guaranties, surety
bonds and similar instruments;
(c) net obligations of such
Person under any Swap Contract;
(d) all obligations of such
Person to pay the deferred purchase price of property or services
(other than (i) trade accounts payable in the ordinary course of
business and in accordance with customary terms and (ii) deferred
compensation);
(e) indebtedness (excluding
prepaid interest thereon) secured by a Lien on property owned by
such Person (including indebtedness arising under conditional sales
or other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is limited
in recourse;
(f) obligations under Capital
Leases and obligations under Synthetic Leases which would be
capitalized under GAAP if they were accounted for as Capital
Leases;
(g) all obligations of such
Person to purchase, redeem, retire, defease or otherwise make any
payment in respect of any Disqualified Capital Stock in such Person
or any other Person, valued, in the case of a redeemable preferred
interest, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid
dividends;
(h) any off-balance-sheet
liabilities of such Person (including any attributable debt in
respect of sale-leaseback transactions, but excluding liabilities
arising out of leases, consignment agreements or similar
arrangements for precious, semi-precious, or other metals that are
entered into by the Company or any Subsidiary in the ordinary
course of business); and
(i) all Guarantees of such
Person in respect of any of the foregoing.
The amount of any net obligation
under any Swap Contract on any date shall be deemed to be the Swap
Termination Value thereof as of such date. The amount of any
Capital Lease obligation shall be the amount thereof required to be
capitalized in accordance with GAAP. The amount of any Synthetic
Lease as of any date shall be deemed to be the amount thereof
required to be capitalized if such Synthetic Lease were accounted
for as a Capital Lease. The Indebtedness of any Person shall
include the Indebtedness of any other Person (including any
partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such
Person’s ownership interest in or other relationship with
such other Person, except to the extent the terms of such
Indebtedness provide that such Person is not liable
therefor.
“ Indebtedness for Money
Borrowed ” means, as to any Person, Indebtedness of such
Person of the type referred to in clause (a) or (f) of the
definition of term “Indebtedness”, and any Guarantees
of such Person of any Indebtedness of the type referred to in such
clauses of any other Person.
“ Indemnified Taxes
” means Taxes other than Excluded Taxes.
“ Indemnitees ”
has the meaning specified in Section 10.04(b).
“ Information ”
has the meaning specified in Section 10.07.
“ Information
Memorandum ” means the Confidential Information
Memorandum dated January 2008, used by the Arranger in
connection with the syndication of the credit facilities provided
for under this Agreement.
“ Intellectual Property
” has the meaning specified in the Domestic Collateral
Agreement.
“ Interest Payment Date
” means, (a) as to any Eurocurrency Rate Loan, the last day
of each Interest Period applicable to such Loan and the Maturity
Date; provided , however , that if any Interest
Period for a Eurocurrency Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning
of such Interest Period shall also be Interest Payment Dates; (b)
as to any Base Rate Loan (other than a Swing Line Loan), the last
Business Day of each March, June, September and December and the
Maturity Date; and (c) as to any Swing Line Loan, the day that such
Loan is required to be repaid.
“ Interest Period
” means, as to each Eurocurrency Rate Loan, the period
commencing on the date such Eurocurrency Rate Loan is disbursed or
converted to or continued as a Eurocurrency Rate Loan and ending on
the date one, two, three or six months thereafter, as selected by
the Company in its Committed Loan Notice; provided
that:
(a) any Interest Period that
would otherwise end on a day that is not a Business Day shall be
extended to the next succeeding Business Day unless such Business
Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Business Day;
(b) any Interest Period that
begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest
Period; and
(c) no Interest Period shall
extend beyond the Maturity Date.
“ Internal Control
Event ” means a material weakness in, or fraud that
involves management or other employees who have a significant role
in, the Company’s internal controls over financial reporting,
in each case as described in the Securities Laws.
“ Investment ”
means, as to any Person, any loan or advance to, or any Guarantee
of any obligations of, any other Person, any purchase or other
acquisition of any Equity Interests or other securities, assets (to
the extent they constitute all or substantially all the assets, or
a business unit, of the seller) or obligations of any other Person,
or any capital contribution to, or other investment or acquisition
(including pursuant to any merger or consolidation with any other
Person) of any interest in any other Person. For purposes of this
Agreement, the amount, as of any date of determination, of (a) any
Investment in the form of a loan or an advance shall be the
principal amount thereof outstanding on such date, (b) any
Investment in the form of a Guarantee shall be the principal amount
outstanding on such date of Indebtedness or other obligation being
guaranteed thereby, (c) any Investment in the form of a transfer of
Equity Interests or other assets by the investor to the investee,
including any such transfer in the form of a capital contribution,
shall be the shareholders’ equity represented by such Equity
Interests, or the net book value of such other assets, transferred,
in each case determined as of the time of the transfer, without any
adjustment for increases or decreases in value of, or write-ups,
write-downs or write-offs with respect to, such Investment, (d) any
Investment (other than any Investment referred to in clause (a),
(b) or (c) above) by any Person in the form of a purchase or other
acquisition of any Equity Interests or other securities, assets or
obligations of any other Person shall be the original cost of such
Investment (including any Indebtedness assumed in connection
therewith or, in the case of an Investment as a result of which any
Person becomes a Subsidiary, any Indebtedness of such Person
existing at the time thereof), without any adjustment for increases
or decreases in value of, or write-ups, write-downs or write-offs
with respect to, such Investment, and (e) any Investment (other
than any Investment referred to in clause (a), (b), (c) or (d)
above) by any Person in any other Person resulting from the
issuance by such other Person of its Equity Interests to such
Person shall be the shareholders’ equity of such other Person
represented by such Equity Interests at the time of the issuance
thereof.
“ Investment Transfer
” to any Person means any loan or advance to, or any
Guarantee of any obligations of, such Person, any transfer of any
Equity Interests or other assets to such Person or any capital
contribution to such Person (including pursuant to any merger or
consolidation with such Person).
“ IRS ” means the
United States Internal Revenue Service.
“ ISP ” means,
with respect to any Letter of Credit, the “International
Standby Practices 1998” published by the Institute of
International Banking Law & Practice (or such later version
thereof as may be in effect at the time of issuance).
“ Issuer Documents
” means, with respect to any Letter of Credit, the Letter of
Credit Application and any other document, agreement and instrument
entered into by any L/C Issuer and any Primary Revolving Borrower
or in favor such L/C Issuer and relating to any such Letter of
Credit.
“ JPMCB ” means
JPMorgan Chase Bank, N.A. and its successors.
“ Laws ” means,
collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances,
codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation
or administration thereof, and all applicable administrative
orders, directed duties, licenses, authorizations and permits of,
and agreements with, any Governmental Authority, in each case
whether or not having the force of law.
“ L/C Advance ”
means, with respect to each Primary Revolving Lender, such Primary
Revolving Lender’s funding of its participation in any L/C
Disbursement pursuant to Section 2.03(c)(ii).
“ L/C Credit Extension
” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of
the amount thereof.
“ L/C Disbursement
” has the meaning specified in
Section 2.03(c)(i).
“ L/C Issuer ”
means JPMCB or Bank of America, each in its capacity as issuer of
Letters of Credit hereunder.
“ L/C Obligations
” means, at any time, the aggregate amount available to be
drawn under all outstanding Letters of Credit at such time plus the
aggregate amount of all L/C Disbursements that have not yet been
reimbursed by the Primary Revolving Borrowers at such time. For
purposes of computing the amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.05. For all purposes
of this Agreement, if on any date of determination a Letter of
Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be
“outstanding” in the amount so remaining available to
be drawn.
“ Lender Joinder
Agreement ” has the meaning specified in
Section 2.14(c).
“ Lenders ” means
the Persons listed on Schedule 2.01 and any other Person that
shall have become a party hereto pursuant to an Assignment and
Assumption or a Lender Joinder Agreement, other than any such
Person that ceases to be a party hereto pursuant to an Assignment
and Assumption. Unless the context otherwise requires, the term
“Lenders” includes the Swing Line Lender.
“ Lending Office
” means, as to any Lender, the office or offices of such
Lender described as such in such Lender’s Administrative
Questionnaire, or such other office or offices as a Lender may from
time to time notify to the Company and the Agents.
“ Letter of Credit
” means any documentary or standby letter of credit issued
hereunder and shall include the Existing Letters of Credit. Letters
of Credit may be issued in Dollars or in any Alternative
Currency.
“ Letter of Credit
Application ” means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time
to time in use by the applicable L/C Issuer.
“ Letter of Credit
Expiration Date ” means the day that is five Business
Days prior to the Maturity Date.
“ Letter of Credit Fee
” has the meaning specified in Section 2.03(i).
“ Letter of Credit
Sublimit ” means an amount equal to the lesser of
(a) $10,000,000 and (b) the Aggregate Primary Revolving
Commitments. The Letter of Credit Sublimit is part of, and not in
addition to, the Aggregate Primary Revolving
Commitments.
“ Lien ” means
any interest in property securing any obligation owed to, or a
claim by, a Person other than the owner of the property, whether
such interest is based on the common law, statute or contract, and
including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement,
conditional sale or trust receipt or a lease, consignment or
bailment for security purposes.
“ Loan ” means an
extension of credit by a Lender to a Borrower under Article II
in the form of a Committed Loan or a Swing Line Loan.
“ Loan Documents
” means this Agreement, the Guarantee Agreement, the Domestic
Collateral Agreement and the other Security Documents, each
Borrower Joinder Agreement, each Lender Joinder Agreement and each
Note.
“ Loan Documents
Obligations ” has the meaning specified in the Guarantee
Agreement.
“ Loan Parties ”
means, collectively, the Company, each other Borrower andeach other
Subsidiary Guarantor.
“ London Administrative
Agent ” means J.P. Morgan Europe Limited, or any other
Affiliate or branch of JPMCB that JPMCB shall have designated for
the purpose of acting in such capacity hereunder.
“ Mandatory Cost
” means, with respect to any period, the percentage rate per
annum determined in accordance with
Schedule 1.01(b).
“ Material Acquisition
” means any Permitted Acquisition the aggregate consideration
paid in which exceeds $5,000,000.
“ Material Adverse
Effect ” means a material adverse effect on (a) the
business, operations, or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole, (b) the ability of
the Company or the Loan Parties taken as a whole to perform their
obligations and pay all amounts due under the Loan Documents, or
(c) the ability of any Agent or any Lender to enforce its rights
under the Loan Documents taken as a whole or to collect any of the
Loan Documents Obligations then due and payable.
“ Material Disposition
” means any Disposition, or a series of related Dispositions,
of (a) all or substantially all of the issued and outstanding
Equity Interests in any Person or (b) assets comprising all or
substantially all of the assets of any Person or of a line or lines
of business conducted by any Person, provided
that the aggregate consideration
received therein exceeds $5,000,000.
“ Material Subsidiary
” means (a) for purposes of clause (b) of the
definition of the term “Subsidiary Guarantor”, any
Domestic Subsidiary the consolidated total assets of which are
equal to $1,000,000 or more, (b) for purposes of clause (c) of the
definition of the term “Subsidiary Guarantor”, any
Foreign Subsidiary the Net Worth of which (exclusive of value (
i.e. , shareholders’ equity) of any Subsidiaries owned
by such Subsidiary and value of any Specified Intercompany
Indebtedness owned by such Foreign Subsidiary) is equal to
$5,000,000 or more and (c) otherwise, any Subsidiary the Net
Worth of which (exclusive of the value ( i.e. ,
shareholders’ equity) of any Subsidiaries owned by such
Subsidiary and value of any Specified Intercompany Indebtedness
owned by such Subsidiary) is equal to $10,000,000 or more. For
purposes of this definition, all amounts shall be determined as of
the end of the most recent period of four consecutive fiscal
quarters of the Company with respect to which the Administrative
Agent shall have received financial statements referred to in
Section 5.05(a) or delivered pursuant to Section 6.01(a) or
6.01(b).
“ Maturity Date ”
means February 28, 2013.
“ Moody’s ”
means Moody’s Investors Service, Inc. and any successor
thereto.
“ Mortgaged Property
” means (a) each parcel of real property set forth on
Schedule 1.01(f) and (b) each other parcel of real property
owned in fee by the Company or any other Loan Party, and the
improvements thereto, that has a book or fair market value of
$1,500,000 or more.
“ Multiemployer Plan
” means an employee pension benefit plan covered by Title IV
of ERISA and in respect of which the Company or any ERISA Affiliate
is an “employer” as
described in Section 4001(b) of
ERISA, which is also a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
“ Net Proceeds ”
means, with respect to any event (a) the cash proceeds (including,
in the case of any casualty, condemnation or similar proceeding,
insurance, condemnation or similar proceeds) received in respect of
such event, including any cash received in respect of any noncash
proceeds, but only as and when received, net of (b) the sum,
without duplication, of (i) all reasonable fees and out-of-pocket
expenses paid in connection with such event by the Company or any
Subsidiary to Persons that are not Affiliates of the Company or any
Subsidiary, (ii) in the case of a sale, transfer, lease or other
disposition (including pursuant to any sale and leaseback
transaction or a casualty or a condemnation or similar proceeding)
of an asset, the amount of all payments required to be made by the
Company or any Subsidiary as a result of such event to repay
Indebtedness (other than Loans) secured by such asset and (iii) the
amount of all taxes paid (or reasonably estimated to be payable) by
the Company or any Subsidiary, and the amount of any reserves
established by the Company or any Subsidiary to fund contingent
liabilities reasonably estimated to be payable, in each case during
the year that such event occurred or the next succeeding year and
that are directly attributable (as determined reasonably and in
good faith by the chief financial officer of the Company) to such
event or, in the case of such taxes, to the transfer of funds from
the recipient of such cash proceeds to the Borrower making the
prepayment under Section 2.05(d) required to be made on
account of the receipt thereof.
“ Net Worth ”
means, with respect to any Subsidiary as of any date on which the
amount thereof is to be determined, shareholders’ equity of
such Subsidiary determined in accordance with GAAP, excluding,
however, for purposes of such determination, (a) any
liabilities of such Subsidiary incurred under the Loan Documents,
(b) any liabilities in the form of Guarantees and (c) any
liabilities owed to the Company, any Subsidiary or any Excluded
Subsidiary.
“ Non-Extension Notice
” has the meaning specified in Section
2.03(b)(iii).
“ Non-Restricted Foreign
Loan Party ” means any Foreign Loan Party that is not a
Restricted Foreign Loan Party.
“ Non-Restricted Loan
Party ” means (a) any Domestic Loan Party and (b) any
Non-Restricted Foreign Loan Party.
“ Note ” means a
promissory note made by a Borrower in favor of a Lender evidencing
Loans made by such Lender to such Borrower, substantially in the
form of Exhibit D.
“ Organization
Documents ” means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or
equivalent or comparable constitutive documents with respect to any
non-U.S. jurisdiction); (b) with respect to any limited liability
company, the certificate or articles of formation or organization
and operating agreement; and (c) with respect to any partnership,
joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of
formation or organization and any agreement, instrument, filing or
notice with respect thereto filed in connection with its formation
or organization with the applicable Governmental Authority in the
jurisdiction of its formation or
organization and, if applicable, any
certificate or articles of formation or organization of such
entity.
“ Original Credit
Agreement ” has the meaning specified in the Amendment
Agreement.
“ Other Taxes ”
means any present or future stamp, court or documentary taxes or
any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or from the execution,
delivery, performance, enforcement or registration of, or otherwise
with respect to, this Agreement or any other Loan
Documents.
“ Outstanding Amount
” means (a) with respect to Committed Loans on any date,
the Dollar Equivalent amount of the aggregate outstanding principal
amount thereof on such date after giving effect to any borrowings
and prepayments or repayments of such Committed Loans occurring on
such date; (b) with respect to Swing Line Loans on any date,
the aggregate outstanding principal amount thereof on such date
after giving effect to any borrowings and prepayments or repayments
of such Swing Line Loans occurring on such date; and (c) with
respect to any L/C Obligations on any date, the Dollar Equivalent
amount of the aggregate outstanding amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate
amount of the L/C Obligations occurring on such date, including as
a result of any reimbursements by the Primary Revolving Borrowers
of L/C Disbursements.
“ Overnight Rate
” means, for any day, (a) with respect to any amount
denominated in Dollars, the greater of (i) the Federal Funds Rate
in effect on such day and (ii) an overnight rate determined by the
Administrative Agent, the applicable L/C Issuer, or the Swing Line
Lender, as the case may be, in accordance with banking industry
rules on interbank compensation, and (b) with respect to any amount
denominated in an Alternative Currency, the rate of interest per
annum at which overnight deposits in the applicable Alternative
Currency, in an amount approximately equal to the amount with
respect to which such rate is being determined, would be offered
for such day by a branch or Affiliate of JPMCB in the applicable
offshore interbank market for such currency to major banks in such
interbank market.
“ Participant ”
has the meaning specified in Section 10.06(d).
“ Participating Member
State ” means each state so described in any EMU
Legislation.
“ Patriot Act ”
has the meaning specified in Section 4.01(n).
“ PBGC ” means
the Pension Benefit Guaranty Corporation and any successor
thereto.
“ Pension Plan ”
means any “employee pension benefit plan” (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer
Plan, that is subject to Title IV of ERISA or Section 412 of
the Code or Section 302 of ERISA and is sponsored or
maintained by the Company or any ERISA Affiliate or to which the
Company or any ERISA Affiliate contributes or has an obligation to
contribute, or in the case of a multiple employer or other plan
described in Section 4064(a) of ERISA, has made contributions at
any time during the immediately preceding five plan
years.
“ Permitted Acquisition
” means any Acquisition in connection with which each of the
following is true: (a) the Person to be (or whose assets are to be)
acquired does not oppose such Acquisition and the line or lines of
business of the Person to be acquired are, in the reasonable
judgment of the Company, substantially similar to, or ancillary or
complementary to, one or more line or lines of business conducted
by the Company or any of its Subsidiaries, (b) no Default or Event
of Default is in existence at the time of the consummation of such
Acquisition or would exist after giving effect thereto (including
on a Pro Forma Basis, in the case of the covenants contained in
Section 7.11), (c) the Person acquired shall be or become a
consolidated Subsidiary, or be merged into the Company or a
consolidated Subsidiary, immediately upon consummation of such
Acquisition (or if assets are being acquired, the acquiror shall be
the Company or a consolidated Subsidiary), (d) if the Person to be
(or whose assets are to be) acquired is located outside of the
United States and the fair market value of the consideration given
in connection with such Acquisition is greater than $20,000,000,
the assets or the Equity Interests of the Person acquired shall be
acquired by the Company or a wholly-owned Subsidiary thereof, or
such Person shall be merged into the Company or a wholly-owned
Subsidiary thereof, (e) all actions required to be taken with
respect to the Person or assets acquired in such Acquisition in
order to satisfy the requirements set forth in clauses (a), (b),
(c), (d) and (e) of the definition of the term “Collateral
and Guarantee Requirement” shall have been taken (or
arrangements for the taking of such actions satisfactory to the
Administrative Agent shall have been made), and (f) the
Company delivers to the Administrative Agent a certificate, dated
as of the date of the consummation of such Acquisition and signed
by a Responsible Officer of the Company, certifying that all of the
foregoing requirements set forth in this definition have been
satisfied with respect to such Acquisition and further certifying
as to such Responsible Officer’s good faith belief that the
covenants contained in Section 7.11 will continue to be met
for the first four full fiscal quarters of the Company following
the consummation of such Acquisition, to which shall be attached
computations demonstrating satisfaction of the requirements set
forth in clause (b) above and in this clause (f) as to the
covenants contained in Section 7.11.
“ Person ” means
an individual, limited liability company, partnership, corporation,
trust, unincorporated organization, association, joint venture or
other entity or a Governmental Authority.
“ Plan ” means
any “employee benefit plan” (as such term is defined in
Section 3(3) of ERISA) established by the Company or, with respect
to any such plan that is subject to Section 412 of the Code or
Title IV of ERISA, any ERISA Affiliate.
“ Platform ” has
the meaning specified in Section 6.02.
“ Prepayment Escrow
Account ” has the meaning specified in Section
2.05(f).
“ Prepayment Event
” means:
(a) Disposition (including by way of
merger or consolidation) of any asset of the Company or any
Subsidiary, including any sale or issuance to a Person other than
the Company or any other Subsidiary of Equity Interests in any
Subsidiary, other than (i) Dispositions described in clauses (a)
through (e) and clause (g) of Section 7.05 and (ii)
other Dispositions resulting in
aggregate Net Proceeds not exceeding $1,500,000 during any fiscal
year of the Company;
(b) any casualty or other insured
damage to, or any taking under power of eminent domain or by
condemnation or similar proceeding of, any asset of the Company or
any Subsidiary resulting in aggregate Net Proceeds of $1,500,000 or
more;
(c) any issuance by the Company of
any Equity Interests, or the receipt by the Company of any capital
contribution, other than (i) any issuance of directors’
qualifying shares or of nominal amounts of other Equity Interests
that are required to be held by specified Persons under applicable
law and (ii) any issuance of common stock in the Company to
management or employees of the Company or any Subsidiary, under any
employee stock option or stock purchase plan or employee benefit
plan; or
(d) the incurrence by the Company or
any Subsidiary of any Indebtedness, other than any Indebtedness
permitted to be incurred by Section 7.03.
“ Primary Revolving
Borrower ” means any of (a) the Company, (b) the
Singapore Revolving Borrowers, (c) Pulse Denmark, Pulse Components,
Technitrol Delaware, Inc., a Delaware corporation, Pulse
Engineering, Inc., a Delaware corporation, AMI Doduco, Inc., a
Pennsylvania corporation, AMI Doduco Holding GmbH, a company
organized under the laws of Germany, AMI Doduco Nederland B.V., a
company incorporated or established in The Netherlands, and Pulse
Nederland B.V., a company incorporated or established in The
Netherlands, and (d) any other Subsidiary that has become a
Primary Revolving Borrower as provided in
Section 2.16.
“ Primary Revolving
Commitment ” means, as to each Lender, its obligation, if
any, to (a) make Committed Primary Revolving Loans to the
Primary Revolving Borrowers pursuant to Section 2.01(b),
(b) acquire participations in L/C Obligations and (c) acquire
participations in Swing Line Loans, in an aggregate principal
amount at any one time outstanding the Dollar Equivalent of which
does not exceed the Dollar amount set forth opposite such
Lender’s name on Schedule 2.01 or in the Assignment and
Assumption or the Lender Joinder Agreement pursuant to which such
Lender becomes a party hereto, as applicable, as such amount may be
adjusted from time to time in accordance with this Agreement. The
initial aggregate amount of the Lenders’ Primary Revolving
Commitments as of the Closing Date was $250,000,000. The aggregate
amount of the Lenders’ Primary Revolving Commitments as of
the Restatement Effective Date is $145,833,333.33.
“ Primary Revolving
Lender ” means a Lender with a Primary Revolving
Commitment or, if the Aggregate Primary Revolving Commitments have
terminated, a Lender holding any of the Total Primary Revolving
Outstandings.
“ Primary Revolving
Subfacility ” means the credit facility represented by
the Primary Revolving Commitments and established pursuant to
Sections 2.01(b), 2.03 and 2.04.
“ Prime Rate ”
means the rate of interest per annum publicly announced from time
to time by JPMCB as its prime rate in effect at its principal
office in New York City. Each change in the
Prime Rate shall be effective from
and including the date such change is publicly announced as being
effective.
“ Pro Forma Basis
” means, for purposes of calculating compliance with any test
or financial covenant under this Agreement for any period, that the
applicable Permitted Acquisition or Disposition (and all other
Permitted Acquisitions and Dispositions that have been consummated
during the applicable period), and any related retirement of
Indebtedness or incurrence of Indebtedness by the Company and its
Subsidiaries, shall be deemed to have occurred as of the first day
of the applicable period of measurement in such test or covenant;
provided that the
foregoing pro forma adjustments may be applied to any such test or
financial covenant solely to the extent that such adjustments are
consistent with the definition of the term “Consolidated
EBITDA” and give effect to events (including operating
expense reductions) that (a) are attributable to such
transaction, (b) are expected to have a continuing impact on
the Company and its Subsidiaries and (c) are factually
supportable ( provided that pro forma effect shall only be given to
operating expense reductions or similar anticipated benefits from
any Permitted Acquisition or Disposition solely to the extent that
such adjustments and the bases therefor are set forth in reasonable
detail in a certificate of the Responsible Officer of the Company
delivered to the Administrative Agent and dated the relevant date
of determination and which certifies that all necessary steps for
the realization thereof have been taken or the Company reasonably
anticipates that all necessary steps for the realization thereof
will be taken within 12 months following such date of
determination). For purposes of giving pro forma effect to any
Indebtedness incurred or assumed by the Company or its Subsidiaries
that bears interest at a floating or formula rate, such
Indebtedness shall be deemed to have an implied rate of interest
for the applicable period equal to the rate that is or would be in
effect with respect to such Indebtedness as of the relevant date of
determination.
“ Pulse Components
” means Pulse Components ApS, a private limited company
organized under the laws of Denmark under company registration
number 2514 1350 (formerly known as Sonion A/S).
“ Pulse Denmark ”
means Pulse Denmark ApS, a company organized under the laws of
Denmark under company registration number 3125 3950.
“ Reallocated Primary
Revolving Commitment ” of any Primary Revolving Lender
means the portion of such Lender’s Primary Revolving
Commitment that shall constitute a part of such Primary Revolving
Commitment as a result of a reallocation of such Lender’s (or
its Affiliate’s) Singapore Revolving Commitment pursuant to
Section 2.14.
“ Reallocation Effective
Date ” has the meaning specified in
Section 2.14(c).
“ Redesignation Effective
Date ” has the meaning specified in
Section 1.09.
“ Register ” has
the meaning specified in Section 10.06(c).
“ Registered Public
Accounting Firm ” has the meaning specified in the
Securities Laws and shall be independent of the Company as
prescribed by the Securities Laws.
“ Related Parties
” means, with respect to any Person, such Person’s
Subsidiaries and other Affiliates and the partners, directors,
officers, employees, agents and advisors of such Person and of such
Person’s Subsidiaries and other Affiliates.
“ Release Date ”
has the meaning specified in Section 10.20(b).
“ Reportable Event
” means a reportable event described in Section 4043 of ERISA
and the regulations thereunder for which the notice requirement has
not been waived by applicable regulation.
“ Request for Credit
Extension ” means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan
Notice, (b) with respect to an L/C Credit Extension, a Letter of
Credit Application, and (c) with respect to a Swing Line Loan, a
Swing Line Loan Notice.
“ Required Lenders
” means, as of any date of determination, Lenders having more
than 50% of the sum of (a) the Outstanding Amount of all the Term
Loans at such time, (b) the unused Commitments at such time, (c)
the Total Primary Revolving Outstandings at such time and (d) the
Total Singapore Revolving Outstandings at such time;
provided that the
Commitment of, and the Total Primary Revolving Outstandings and the
Total Singapore Revolving Outstandings held by, any Defaulting
Lender shall be excluded for purposes of making a determination of
Required Lenders.
“ Required Primary
Revolving Lenders ” means, as of any date of
determination, Primary Revolving Lenders having more than 50% of
the Aggregate Primary Revolving Commitments or, if the Aggregate
Primary Revolving Commitments have terminated, Primary Revolving
Lenders holding in the aggregate more than 50% of the Total Primary
Revolving Outstandings; provided that the Primary Revolving Commitment of, and
the Total Primary Revolving Outstandings held by, any Defaulting
Lender shall be excluded for purposes of making a determination of
Required Primary Revolving Lenders.
“ Required Singapore
Revolving Lenders ” means, as of any date of
determination, Singapore Revolving Lenders having more than 50% of
the Aggregate Singapore Revolving Commitments or, if the Aggregate
Singapore Revolving Commitments have terminated, Singapore
Revolving Lenders holding in the aggregate more than 50% of the
Total Singapore Revolving Outstandings; provided
that the Singapore Revolving
Commitment of, and the portion of the Total Singapore Revolving
Outstandings held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Singapore Revolving
Lenders.
“ Required Term Lenders
” means, as of any date of determination, Term Lenders
holding in the aggregate more than 50% of the Outstanding Amount of
all the Term Loans at such time.
“ Responsible Officer
” means, with respect to any Loan Party, the chief executive
officer, president, chief financial officer, controller, director
of treasury, treasurer or assistant treasurer of such Loan Party
or, for purposes of clauses (ii), (iii), (iv), (viii), (ix) and
(xi) of Section 4.01(a) only, a duly-authorized director,
manager, vice-president or secretary of such Loan Party. Any
document delivered hereunder that is signed by a Responsible
Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership
and/or
other action on the part of such
Loan Party, and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Loan Party.
“ Restatement Effective
Date ” has the meaning specified in the Amendment
Agreement.
“ Restricted Foreign Loan
Party ” means (a) any Danish Loan Party, (b) any German
Restricted Loan Party and (c) any Foreign Loan Party that becomes a
Loan Party after the Restatement Effective Date if such Foreign
Loan Party (i) (A) is incorporated, organized or established in a
jurisdiction other than the jurisdiction of incorporation,
organization or establishment of any Foreign Loan Party (other than
a Danish Loan Party) set forth on Schedule 1.01(c) and (B) has
not granted to the Administrative Agent, for the benefit of the
Secured Parties, a valid and perfected security interest in a
substantial portion of its assets (whether as a result of the
cost/benefit analysis contemplated by the last paragraph of the
definition of the term “Collateral and Guarantee
Requirement” or otherwise) or (ii) is subject to any Law
(including any financial assistance rule) materially impeding the
ability of such Foreign Loan Party to perform its obligations under
the Guarantee Agreement or any Security Document to which it is a
party (without giving effect to any limitations on such obligations
relating to Law that is set forth in the Guarantee Agreement or any
such Security Document), in each case under clause (c)(i) or
(c)(ii), as determined by the Administrative Agent or the Required
Lenders.
“ Restricted Payment
” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or
other Equity Interest of the Company or any Subsidiary, or any
payment (whether in cash, securities or other property), including
any sinking fund or similar deposit, on account of the repurchase,
redemption, retirement, cancellation or termination of any such
capital stock or other Equity Interest, or on account of any return
of capital to the Company’s stockholders, partners or members
(or the equivalent Person thereof).
“ Revolving Availability
Period ” means the period from and including the Closing
Date to but excluding the earlier of (a) the Maturity Date and
(b) (i) in the case of the Primary Revolving Commitments,
the date of termination of the Aggregate Primary Revolving
Commitments pursuant to Section 2.06 or 8.02 and (ii) in
the case of the Singapore Revolving Commitments, the date of
termination of the Aggregate Singapore Revolving Commitments
pursuant to Section 2.06 or 8.02.
“ Revolving Commitment
” means (a) with respect to any Primary Revolving Lender, its
Primary Revolving Commitment and (b) with respect to any Singapore
Revolving Lender, its Singapore Revolving Commitment.
“ Revolving Lender
” means a Primary Revolving Lender or a Singapore Revolving
Lender.
“ S&P ” means
Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc., and any successor thereto.
“ Same Day Funds
” means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to
disbursements and payments in an Alternative Currency, same day or
other funds as may be determined by the Applicable Agent
to
be customary in the place of
disbursement or payment for the settlement of international banking
transactions in the relevant Alternative Currency.
“ Sarbanes-Oxley
” means the Sarbanes-Oxley Act of 2002.
“ SEC ” means the
Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.
“ Secured Cash Management
Services Obligations ” has the meaning specified for the
term “Guaranteed Cash Management Services Obligations”
in the Guarantee Agreement.
“ Secured Obligations
” means (a) in the case of any Domestic Loan Party, (i) all
the Loan Documents Obligations, (ii) all the Secured Cash
Management Services Obligations and (iii) all the Secured Swap
Obligations, and (b) in the case of any Foreign Loan Party, subject
to Section 2.07 of the Guarantee Agreement and any similar
limitations set forth in any supplement to the Guarantee Agreement
or in any Security Document, (i) all the Loan Documents Obligations
that are obligations of a Foreign Borrower or any other Foreign
Subsidiary, (ii) all the Secured Cash Management Services
Obligations that are obligations of a Foreign Borrower or any other
Foreign Subsidiary, (iii) all the Secured Swap Obligations that are
obligations of a Foreign Borrower or any other Foreign Subsidiary
and (iv) in the case of any Sonion Loan Party, all the Sonion
Intercompany Loan Obligations.
“ Secured Party ”
has the meaning specified in the Domestic Collateral
Agreement.
“ Secured Swap
Obligations ” has the meaning specified for the term
“Guaranteed Swap Obligations” in the Guarantee
Agreement.
“ Securities Laws
” means the Securities Act of 1933, the Securities Exchange
Act of 1934, Sarbanes-Oxley and the applicable accounting and
auditing principles, rules, standards and practices promulgated,
approved or incorporated by the SEC or the Public Company
Accounting Oversight Board, as each of the foregoing may be amended
and in effect on any applicable date hereunder.
“ Security Documents
” means the Domestic Collateral Agreement, the Domestic
Mortgages and each other security agreement, pledge, assignment or
other instrument or document executed and delivered by any Loan
Party to secure any of the Secured Obligations, including any of
the foregoing executed and delivered pursuant to Section
6.15.
“ Share ” means
(a) with respect to any Term Lender or any Term Lender’s
share of any payment or other amount under or with respect to the
Term Facility, such Term Lender’s Applicable Term Percentage,
(b) with respect to any Primary Revolving Lender or any Primary
Revolving Lender’s share of any payment or other amount under
or with respect to the Primary Revolving Subfacility, such Primary
Revolving Lender’s Applicable Primary Revolving Percentage
and (c) with respect to any Singapore Revolving Lender or any
Singapore Revolving Lender’s share of any payment or other
amount under or with respect to the Singapore Revolving
Subfacility, such Singapore Revolving Lender’s Applicable
Singapore Revolving Percentage.
“ Singapore Administrative
Agent ” means JPMorgan Chase Bank, N.A., the Hong Kong
branch, or any other Affiliate or branch of JPMCB that JPMCB shall
have designated for the purpose of acting in such capacity
hereunder.
“ Singapore Revolving
Borrowers ” means (a) Pulse Electronics (Singapore)
Pte. Ltd., a company organized under the laws of Singapore,
(b) Technitrol Singapore Holdings Pte. Ltd., a company
organized under the laws of Singapore, and (c) any other
Subsidiary that has become a Singapore Revolving Borrower as
provided in Section 2.16.
“ Singapore Revolving
Commitment ” means, as to each Lender, its obligation, if
any, to make Committed Singapore Revolving Loans to the Singapore
Revolving Borrowers pursuant to Section 2.01(c) in an
aggregate principal amount at any one time outstanding the Dollar
Equivalent of which does not exceed the Dollar amount set forth
opposite such Lender’s name on Schedule 2.01 or in the
Assignment and Assumption or the Lender Joinder Agreement pursuant
to which such Lender becomes a party hereto, as applicable, as such
amount may be adjusted from time to time in accordance with this
Agreement. The initial aggregate amount of the Lenders’
Singapore Revolving Commitments as of the Closing Date was
$50,000,000. The aggregate amount of the Lenders’ Singapore
Revolving Commitments as of the Restatement Effective Date is
$29,166,666.67.
“ Singapore Revolving
Lender ” means a Lender with a Singapore Revolving
Commitment or, if the Aggregate Singapore Revolving Commitments
have terminated, a Lender with an outstanding Committed Singapore
Revolving Loan.
“ Singapore Revolving
Subfacility ” means the credit facility represented by
the Singapore Revolving Commitments and established pursuant to
Section 2.01(c).
“ Solvency ”mean,
with respect to any Person on any date of determination, that on
such date (a) the fair value of the assets of such Person is
greater than the total amount of liabilities, including contingent
liabilities, of such Person, (b) the present fair saleable value of
the assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts
and other liabilities as they become absolute and matured, (c) such
Person does not intend to, and does not believe that it will, incur
debts or other liabilities beyond such Person’s ability to
pay such debts and liabilities as they mature and (d) such Person
is not engaged in business or a transaction, and is not about to
engage in business or a transaction, for which such Person’s
assets would constitute an unreasonably small capital. The amount
of contingent liabilities at any time shall be computed as the
amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that could reasonably
be expected to become an actual or matured liability.
“ Sonion ” means
Sonion A/S, a company organized under the laws of Denmark under
company registration number 2514 1350 and a predecessor in interest
to Pulse Components.
“ Sonion Acquisition
” has the meaning specified in the preliminary statement to
this Agreement.
“ Sonion Acquisition
Consideration ” has the meaning specified in the
preliminary statement to this Agreement.
“ Sonion Intercompany
Loan ” means the loan in the amount of $168,000,000 made
by Pulse Denmark to Sonion on the Closing Date.
“ Sonion Intercompany Loan
Obligations ” means the due and punctual payment by Pulse
Components of the principal of and interest (including interest
accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) on the Sonion Intercompany
Loan, when and as due, whether at maturity, by acceleration, upon
one or more dates set for prepayment or otherwise.
“ Sonion Loan Party
” means Pulse Components and each of its Subsidiaries that is
a Loan Party.
“ Sonion Purchase
Agreement ” has the meaning specified in the preliminary
statement to this Agreement.
“ Specified Committed
Primary Revolving Borrowing ” means the Committed
Borrowing requested to be made on the Closing Date and identified
as such in a Committed Loan Notice.
“ Specified Intercompany
Indebtedness ” means Indebtedness the sole obligors in
respect of which are Loan Parties and that is subordinated to the
Loan Documents Obligations on written terms satisfactory to the
Administrative Agent.
“ Specified Time
” means (a) when used in reference to (i) Swing
Line Loans or (ii) Committed Primary Revolving Loans that are
Dollar Domestic Loans, New York City time, (b) when used in
reference to Letters of Credit, New York City time (or, in the case
of any Letter of Credit, such other time as may be agreed to by the
Administrative Agent and the applicable L/C Issuer with respect to
such Letter of Credit), (c) when used in reference to
Committed Loans (other than Committed Singapore Revolving Loans)
(i) denominated in Dollars and made to Foreign Borrowers or
(ii) denominated in an Alternative Currency, London time and
(d) when used in reference to Committed Singapore Revolving
Loans, Hong Kong time.
“ Spot Rate ”
means on any day, for purposes of determining the Dollar Equivalent
of any Alternative Currency, the rate at which such currency may be
exchanged into Dollars, as set forth at approximately 11:00 a.m. on
such date on the Reuters World Currency Page for such currency. In
the event that such rate does not appear on the applicable Reuters
World Currency Page, the Spot Rate shall be determined by reference
to such other publicly available service for displaying exchange
rates as may be agreed upon by the Applicable Agent and the
Company, or, in the absence of such an agreement, such Spot Rate
shall instead be the arithmetic average of the spot rates of
exchange of the Administrative Agent, at approximately 11:00 a.m.
on such date for the purchase of Dollars for delivery two Business
Days later; provided that if at the time of any such determination,
for any reason, no such spot rate is being quoted, the Applicable
Agent may use any reasonable method it deems appropriate to
determine such rate, and such determination shall be conclusive
absent manifest error. References to time of day in this definition
shall be to (a) New York City time, in the case of any
determination of Spot Rates by the Administrative Agent, (b) London
time, in the case of any determination of Spot Rates by the London
Administrative Agent, and (c) Hong Kong time, in the case of any
determination of Spot Rates by the Singapore Administrative
Agent.
“ Subordinated
Indebtedness ” of any Person means any Indebtedness of
such Person that is subordinated in right of payment to any other
Indebtedness of such Person, including any such Indebtedness of any
Loan Party incurred under Section 7.03(f).
“ Subsidiary ”
means, with respect to any Person, any other Person in which
ownership interests representing more than 50% of the equity or
more than 50% of all Voting Equity Interests or, in the case of a
partnership, more than 50% of the general partnership interests
are, as of such date, owned directly or indirectly by such Person.
When the term “Subsidiary” is used herein, it shall
mean any direct or indirect Subsidiary of the Company (other than,
subject to Section 1.09 and except for purposes of
Section 6.01, any Excluded Subsidiary) unless otherwise
noted.
“ Subsidiary Guarantors
” means, collectively, (a) each Subsidiary that is set
forth on Schedule 1.01(c) or that becomes a Borrower after the
Restatement Effective Date, (b) each Domestic Subsidiary that
is a Material Subsidiary (other than any Domestic Subsidiary set
forth on Schedule 1.01(d) or any Domestic Holding Company) and
(c) each Foreign Subsidiary that is a Material Subsidiary
(other than any Foreign Subsidiary organized under the laws of the
People’s Republic of China or Vietnam or set forth on
Schedule 1.01(d)); provided that for purposes of Article VII and each
other provision hereof where the context so requires,
(i) subject to clause (iii) below, a Subsidiary shall be
deemed to be a “Subsidiary Guarantor” only if, and for
so long as, the requirements of clauses (a) (other than subclause
(i)(C) thereof and giving effect to the last paragraph of the
definition of the term “Collateral and Guarantee
Requirement”) and (e) of the definition of the term
“Collateral and Guarantee Requirement” shall have been
satisfied with respect to such Subsidiary, (ii) notwithstanding
clause (b) or (c) above, but subject to clause (iii) below, any
Subsidiary shall be deemed to be a “Subsidiary
Guarantor” if, and for so long as, such requirements are
satisfied with respect to such Subsidiary and (iii) in the event
that, as a result of the application of the last paragraph of the
definition of the term “Collateral and Guarantee
Requirement”, a Subsidiary grants no Liens on its assets to
secure its Secured Obligations, such Subsidiary shall not be deemed
to be a “Subsidiary Guarantor” for such purposes
(irrespective of whether such Subsidiary has Guaranteed its
Guaranteed Obligations pursuant to the Guarantee
Agreement).
“ Swap Contract ”
means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions,
commodity swaps, commodity options, forward commodity contracts,
equity or equity index swaps or options, bond or bond price or bond
index swaps or options or forward bond or forward bond price or
forward bond index transactions, interest rate options, forward
foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions,
cross-currency rate swap transactions, currency options, spot
contracts, or any other similar transactions or any combination of
any of the foregoing (including any options to enter into any of
the foregoing), whether or not any such transaction is governed by
or subject to any master agreement, and (b) any and all
transactions of any kind, and the related confirmations, which are
subject to the terms and conditions of, or governed by, any form of
master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange
Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “ Master
Agreement ”), including any such obligations or
liabilities under any Master Agreement.
“ Swap Termination
Value ” means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Swap Contracts, (a)
for any date on or after the date such Swap Contracts have been
closed out and termination value(s) determined in accordance
therewith, such termination value(s), and (b) for any date prior to
the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined
based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts
(which may include a Lender or any Affiliate of a
Lender).
“ Swing Line Borrowing
” means a borrowing of a Swing Line Loan pursuant to
Section 2.04.
“ Swing Line Lender
” means JPMCB in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.
“ Swing Line Loan
” has the meaning specified in
Section 2.04(a).
“ Swing Line Loan
Notice ” means a notice of a Swing Line Borrowing
pursuant to Section 2.04(b), which, if in writing, shall be
substantially in the form of Exhibit E.
“ Swing Line Sublimit
” means an amount equal to the lesser of (a) $15,000,000 and
(b) the Aggregate Primary Revolving Commitments. The Swing Line
Sublimit is part of, and not in addition to, the Aggregate Primary
Revolving Commitments.
“ Synthetic Lease
” means (a) a so-called synthetic, off-balance sheet or tax
retention lease or (b) an agreement for the use or possession of
property creating obligations that do not appear on the balance
sheet of such Person but which, upon the insolvency or bankruptcy
of such Person, would be characterized as indebtedness of such
Person (without regard to accounting treatment).
“ TARGET Day ”
means any day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) payment system (or, if such
payment system ceases to be operative, such other payment system
(if any) determined by the Administrative Agent to be a
suitable replacement) is open for the settlement of payments in
Euro.
“ Taxes ” means
all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or
penalties applicable thereto.
“ Term Borrower ”
means Pulse Denmark.
“ Term Commitment
” means, as to each Lender, its obligation, if any, to make
Term Loans to the Term Borrower pursuant to Section 2.01(a) in
an aggregate principal amount set forth opposite such
Lender’s name on Schedule 2.01. The initial aggregate
amount of the Lenders’ Term Commitments as of the Closing
Date was $200,000,000.
“ Term Facility ”
means the credit facility represented by the Term Commitments and
established pursuant to Section 2.01(a).
“ Term Lender ”
means a Lender with a Term Commitment or an outstanding Term
Loan.
“ Term Loan ” has
the meaning specified in Section 2.01(a).
“ Threshold Amount
” means $15,000,000.
“ Total Primary Revolving
Outstandings ” means the aggregate Outstanding Amount of
all Committed Primary Revolving Loans, all Swing Line Loans and all
L/C Obligations.
“ Total Singapore Revolving
Outstandings ” means the aggregate Outstanding Amount of
all Committed Singapore Revolving Loans.
“ Transactions ”
means, collectively, (a) the consummation of the Sonion Acquisition
and the other transactions contemplated by the Sonion Purchase
Agreement, (b) the initial funding of the Loans and the
effectiveness of the Loan Documents, (c) the consummation of
any other transactions in connection with the foregoing and
(d) the payment of the fees and expenses incurred in
connection with any of the foregoing.
“ Type ” means,
with respect to a Committed Loan, its character as a Base Rate Loan
or a Eurocurrency Rate Loan.
“ United States ”
and “ U.S. ” mean the United States of
America.
“ Unreimbursed Amount
” has the meaning specified in Section 2.03(c)(i).
“ Voting Equity
Interests ” means Equity Interests issued by a Person the
holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even if the right so
to vote has been suspended by the happening of such a
contingency.
“ wholly-owned ”,
when used in reference to a Subsidiary of any Person, means any
Subsidiary of such Person all the Equity Interests in which (other
than directors’ qualifying shares and other nominal amounts
of Equity Interests that are required to be held by other Persons
under applicable Laws) are owned by such Person, another
wholly-owned Subsidiary of such Person or any combination
thereof.
“ Withdrawal Liability
” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of
ERISA.
“ Yen ” and
“ ¥ ” mean the lawful currency of
Japan.
1.02
Other Interpretive Provisions . With reference to this
Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document:
(a) The
definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “ include
,”
“ includes ” and
“ including ” shall be deemed to be followed by
the phrase “without limitation.” The word “
will ” shall be construed to have the same meaning and
effect as the word “ shall .” Unless the context
requires otherwise, (i) any definition of or reference to any
agreement, instrument or other document (including any Organization
Document) shall be construed as referring to such agreement,
instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on
such amendments, supplements or modifications set forth herein or
in any other Loan Document), (ii) any reference herein to any
Person shall be construed to include such Person’s successors
and assigns, (iii) the words “ herein ,” “
hereof ” and “ hereunder ,” and
words of similar import when used in any Loan Document, shall be
construed to refer to such Loan Document in its entirety and not to
any particular provision thereof, (iv) all references in a Loan
Document to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear,
(v) any reference to any law shall include all statutory and
regulatory provisions consolidating, amending, replacing or
interpreting such law and any reference to any law or regulation
shall, unless otherwise specified, refer to such law or regulation
as amended, modified or supplemented from time to time, and (vi)
the words “ asset ” and “ property
” shall be construed to have the same meaning and effect and
to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract
rights.
(b) In
the computation of periods of time from a specified date to a later
specified date, the word “ from ” means “
from and including ;” the words “ to
” and “ until ” each mean “ to
but excluding ;” and the word “ through
” means “ to and including .”
(c) Section
headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan
Document.
1.03
Accounting Terms . (a) Generally . Except as
otherwise expressly provided herein, all accounting terms used
herein shall be construed in conformity with, and all financial
data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as
in effect from time to time.
(b)
Changes in GAAP . If at any time any change in GAAP or in
the application thereof would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and
either the Company or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Company shall negotiate
in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP or in the
application thereof (subject to the approval of the Required
Lenders); provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP
as in effect and applied immediately prior to such change therein
and (ii) the Company shall provide to the Administrative Agent
financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a
reconciliation between calculations of such ratio or requirement
made before and after giving effect to such change in GAAP
or
in the application thereof. Nothing
in this subsection (b) shall affect the proviso set forth in
the definition of the term “Consolidated Funded
Debt”.
(c)
Consolidation of Variable Interest Entities . All references
herein to consolidated financial statements of the Company and its
Subsidiaries or to the determination of any amount for the Company
and its Subsidiaries on a consolidated basis or any similar
reference shall, in each case, be deemed to include each variable
interest entity that the Company is required to consolidate
pursuant to FASB Interpretation No. 46 – Consolidation of
Variable Interest Entities: an interpretation of ARB No. 51
(January 2003) as if such variable interest entity were a
Subsidiary as defined herein.
1.04
Exchange Rates; Currency Equivalents . (a) The Applicable
Agent shall determine the Dollar Equivalent of any Committed
Borrowing denominated in an Alternative Currency on or about the
date of receipt by such Applicable Agent of a Committed Loan Notice
requesting such Committed Borrowing or continuation thereof, using
the Spot Rate for such currency in effect on the date of
determination, and each such amount shall be the Dollar Equivalent
of such Committed Borrowing until the next calculation thereof
pursuant to this Section 1.04. The Administrative Agent shall
determine the Dollar Equivalent of any Letter of Credit denominated
in an Alternative Currency (i) on or about the date of receipt by
the Administrative Agent of the Letter of Credit Application for
any L/C Credit Extension with respect to such Letter of Credit and
(ii) as of the last Business Day of each subsequent calendar
quarter, in each case using the Spot Rate for such currency in
effect on the date of determination, and each such amount shall be
the Dollar Equivalent of such Letter of Credit until the next
calculation thereof pursuant to this Section 1.04. The
Administrative Agent shall in addition determine the Dollar
Equivalent of any Designated Obligation denominated in an
Alternative Currency as of the CAM Exchange Date as set forth in
Article XI.
(b) The
Applicable Agent may also determine the Dollar Equivalent of any
Committed Borrowings or Letters of Credit denominated in an
Alternative Currency as of such other dates as such Applicable
Agent shall determine, in each case using the Spot Rate for such
currency in effect as of a date on or about the date on which such
determination is to be made, and each such amount shall be the
Dollar Equivalent of such Committed Borrowing or Letter of Credit
until the next calculation thereof pursuant to this
Section 1.04.
(c) For
purposes of Section 7.11 and the related definitions, amounts
in currencies other than Dollars shall be translated into Dollars
at the currency exchange rates most recently used in preparing the
Company’s annual or quarterly financial
statements.
1.05
Letter of Credit Amounts . Unless otherwise specified
herein, the amount of a Letter of Credit or L/C Obligation at any
time shall be deemed to be the Dollar Equivalent of the stated
amount of such Letter of Credit in effect at such time or of the
amount of such L/C Obligation, as the case may be; provided
, however , that with respect to any Letter of Credit that,
by its terms or the terms of any Issuer Document related thereto,
provides for one or more automatic increases in the stated amount
thereof, the amount of such Letter of Credit shall be
deemed to be the Dollar Equivalent
of the maximum stated amount of such Letter of Credit after giving
effect to all such increases, whether or not such maximum stated
amount is in effect at such time.
1.06
Effectuation of Transactions . All references herein to the
Company and its Subsidiaries shall be deemed to be references to
such Persons, and all the representations and warranties of the
Company and the other Loan Parties contained in this Agreement and
the other Loan Documents shall be deemed made, in each case, after
giving effect to the Sonion Acquisition and the other Transactions
to occur on the Closing Date, unless the context otherwise
requires.
1.07
Status of Loan Documents Obligations . In the event that any
Loan Party shall at any time issue or have outstanding any
Subordinated Indebtedness, the Company shall take or cause such
Subsidiary to take all such actions as shall be reasonably
necessary to cause the Loan Documents Obligations to constitute
senior indebtedness (however denominated) in respect of such
Subordinated Indebtedness and to enable the Lenders to have and
exercise any payment blockage or other remedies available or
potentially available to holders of senior indebtedness under the
terms of such Subordinated Indebtedness. Without limiting the
foregoing, the Loan Documents Obligations are hereby designated as
“senior indebtedness” and as “designated senior
indebtedness” under and in respect of any indenture or other
agreement or instrument under which such other Subordinated
Indebtedness is outstanding and are further given all such other
designations as shall be required under the terms of any such
Subordinated Indebtedness in order that the Lenders may have and
exercise any payment blockage or other remedies available or
potentially available to holders of senior indebtedness under the
terms of such Subordinated Indebtedness.
1.08
Additional Alternative Currencies . The Company may from
time to time request that Committed Revolving Loans be made in a
currency (other than Dollars) other than those specifically
referred to in the definition of the term “Alternative
Currency”, provided that such requested currency is a lawful
currency (a) that is readily available and freely transferable and
convertible into Dollars and (b) in which dealings in deposits are
carried on in the London interbank market. Any such request shall
be made by written notice to the Administrative Agent, which shall
provide prompt notice thereof to the other Agents and to Revolving
Lenders of the applicable Class. In the case of any such request
with respect to (i) Committed Primary Revolving Loans or
Letters of Credit, such request shall be subject to the prior
written consent of the Administrative Agent and each Primary
Revolving Lender, and (ii) Committed Singapore Revolving
Loans, such request shall be subject to the prior written consent
of the Administrative Agent and each Singapore Revolving Lender.
Following the effectiveness of any approval referred to above with
respect to Committed Revolving Loans of any Class or Letters of
Credit, the term “Alternative Currency”, when used in
reference to Committed Revolving Loans of such Class or to Letters
of Credit, as the case may be, shall be deemed to include the
requested currency so approved.
1.09
Concerning Excluded Subsidiaries . The Company may request
that all (but not less than all) of the Excluded Subsidiaries cease
to be treated as Excluded Subsidiaries for all purposes of this
Agreement and the other Loan Documents (such event being referred
to herein as the “ Excluded Subsidiaries Redesignation
”). Such request shall be made by written notice
to
the Administrative Agent, specifying
the requested date of effectiveness of the Excluded Subsidiaries
Redesignation (the “ Redesignation Effective Date
”). The Excluded Subsidiaries Redesignation shall become
effective on the Redesignation Effective Date,
provided that (a) no
Default or Event of Default is in existence on such date or would
exist after giving effect to the Excluded Subsidiaries
Redesignation, (b) after giving effect to the Excluded Subsidiaries
Redesignation, the representations and warranties of the Loan
Parties contained in the Loan Documents shall be true and correct
in all material respects on and as of the Redesignation Effective
Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be
true and correct in all material respects as of such earlier date,
and except that for purposes of this Section 1.09 the
representations and warranties contained in Sections 5.05(a) and
5.05(b) (except with respect to the representation and warranty set
forth in Section 5.05(a)(iv)) shall be deemed to refer to the most
recent financial statements furnished pursuant to
Section 6.01(a) or 6.01(b), respectively, and (c) the
Company shall have delivered to the Administrative Agent a
certificate, dated as of the Redesignation Effective Date and
signed by the chief executive officer, chief financial officer,
controller, director of treasury or treasurer of the Company,
certifying that all of the foregoing requirements set forth in this
Section 1.09 have been satisfied.
ARTICLE II.
THE COMMITMENTS AND CREDIT
EXTENSIONS
2.01
Committed Loans. (a) Term Loans. Subject to the terms and conditions set forth
herein, each Term Lender severally agrees to make on the Closing
Date a single loan to the Term Borrower (each such loan, a “
Term Loan ”) in Dollars in a principal amount not to
exceed such Lender’s Term Commitment. Amounts borrowed under
this Section 2.01(a) and repaid or prepaid may not be
reborrowed. Term Loans shall be Eurocurrency Rate Loans.
(b)
Committed Primary Revolving Loans. Subject to the terms and conditions set forth
herein, each Primary Revolving Lender severally agrees to make,
from time to time on any Business Day during the Revolving
Availability Period, loans (each such loan, a “ Committed
Primary Revolving Loan ”) to the Domestic Borrowers in
Dollars and to all other Primary Revolving Borrowers in Dollars or
in any Alternative Currency, in an aggregate principal amount the
Dollar Equivalent of which does not exceed at any time outstanding
the amount of such Lender’s Primary Revolving Commitment;
provided , however , that after giving effect to any
Committed Borrowing under this Section 2.01(b), (i) the
Total Primary Revolving Outstandings shall not exceed the Aggregate
Primary Revolving Commitments, (ii) such Lender’s
Applicable Primary Revolving Percentage of the Total Primary
Revolving Outstandings shall not exceed such Lender’s Primary
Revolving Commitment and (iii) the Total Primary Revolving
Outstandings with respect to Domestic Borrowers shall not exceed
the Domestic Borrowing Sublimit; provided
further that the Dollar Equivalent of the Committed
Primary Revolving Loans made on the Closing Date shall not exceed
$200,000,000. Within the foregoing limits, and subject to the other
terms and conditions hereof, the Primary Revolving Borrowers may
borrow under this Section 2.01(b), prepay under
Section 2.05, and reborrow under this Section 2.01(b).
Committed Primary Revolving Loans shall be (A) in the case of
Committed Primary Revolving Loans that
are Dollar Domestic Loans, Base Rate
Loans or Eurocurrency Rate Loans, as further provided herein, and
(B) otherwise, Eurocurrency Rate Loans.
(c)
Committed Singapore Revolving Loans . Subject to the terms
and conditions set forth herein, each Singapore Revolving Lender
severally agrees to make, from time to time on any Business Day
during the Revolving Availability Period, loans (each such loan, a
“ Committed Singapore Revolving Loan ”) to the
Singapore Revolving Borrowers in Dollars or in any Alternative
Currency in an aggregate principal amount the Dollar Equivalent of
which does not exceed at any time outstanding the amount of such
Lender’s Singapore Revolving Commitment; provided ,
however , that after giving effect to any Committed
Borrowing under this Section 2.01(c), (i) the Total Singapore
Revolving Outstandings shall not exceed the Aggregate Singapore
Revolving Commitments and (ii) such Lender’s Applicable
Singapore Revolving Percentage of the Total Singapore Revolving
Outstandings shall not exceed such Lender’s Singapore
Revolving Commitment. Within the foregoing limits, and subject to
the other terms and conditions hereof, the Singapore Revolving
Borrowers may borrow under this Section 2.01(c), prepay under
Section 2.05, and reborrow under this Section 2.01(c).
Committed Singapore Revolving Loans shall be Eurocurrency Rate
Loans.
2.02
Borrowings, Conversions and Continuations of Committed
Loans. (a) Each Committed Borrowing, each conversion of
Committed Primary Revolving Loans that are Dollar Domestic Loans
from one Type to the other, and each continuation of Eurocurrency
Rate Loans shall be made upon the Company’s irrevocable
notice to the Applicable Agent. Each such notice must be received
by the Applicable Agent not later than 11:00 a.m., Specified Time,
(i) in the case of notices under the Singapore Revolving
Subfacility, four Business Days prior to the requested date of any
Committed Borrowing thereunder or any continuation of Eurocurrency
Rate Loans made thereunder and (ii) otherwise, (A) four
Business Days prior to the requested date of any Committed
Borrowing of, conversion to or continuation of Eurocurrency Rate
Loans made to a Foreign Borrower, (B) three Business Days
prior to the requested date of any Committed Borrowing of,
conversion to or continuation of Eurocurrency Rate Loans made to a
Domestic Borrower and (C) in the case of Committed Primary
Revolving Loans that are Dollar Domestic Loans, on the requested
date of any Committed Borrowing of or conversion to Base Rate
Loans. Each such notice by the Company shall be made by delivery to
the Applicable Agent of a written Committed Loan Notice,
appropriately completed and signed by a Responsible Officer of the
Company. Subject to subsection (e) below, each Committed
Borrowing of, conversion to or continuation of Eurocurrency Rate
Loans shall be in a principal amount of the Eurocurrency Borrowing
Minimum or a whole multiple of the Eurocurrency Borrowing Multiple
in excess thereof. Each Committed Borrowing of or conversion to
Base Rate Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof,
provided that any such
Committed Borrowing requested to finance the reimbursement of an
L/C Disbursement may be in an aggregate amount sufficient to
finance such reimbursement. Each Committed Loan Notice (whether
telephonic or written) shall specify (i) whether the request
is being made (A) for a Committed Borrowing, (B) in the case of
Committed Primary Revolving Loans that are Dollar Domestic Loans, a
conversion of such Loans from one Type to the other, or (C) a
continuation of Eurocurrency Rate Loans, (ii) the requested
date of any such Committed Borrowing, conversion or continuation
(which shall be a Business Day), (iii) in the case of a
request for a Committed Borrowing, the Borrower with respect to
which such request is
being made, whether such Committed
Borrowing is requested to be comprised of Term Loans, Committed
Primary Revolving Loans or Committed Singapore Revolving Loans and
the currency thereof, (iv) in the case of a request for any such
conversion or continuation, the Committed Borrowing with respect to
which such request is being made, (v) the principal amount of
Committed Loans to be borrowed, converted or continued,
(vi) in the case of Committed Primary Revolving Loans that are
Dollar Domestic Loans, the Type of Committed Loans to be borrowed
or to which existing Committed Loans are to be converted and
(vii) in the case of a request for a Committed Borrowing
consisting of Eurocurrency Rate Loans, or of a conversion of
existing Committed Loans to, or a continuation as, Eurocurrency
Rate Loans, the duration of the Interest Period with respect
thereto. If the Committed Loan Notice requesting a Committed
Borrowing fails to specify the requested currency thereof, then the
Committed Loans so requested shall be made in Dollars. In the case
of Committed Loan Notices requesting Committed Borrowings of Dollar
Domestic Loans, if such Committed Loan Notice fails to specify the
Type of the requested Loans, then the requested Loans shall be made
as Base Rate Loans. In the case of any Eurocurrency Rate Loan, if,
prior to the end of the Interest Period applicable thereto, the
Company fails to give a timely notice of continuation thereof as a
Eurocurrency Rate Loan, then such Eurocurrency Rate Loan shall (A)
in the case of Eurocurrency Rate Loans that are Dollar Domestic
Loans, automatically be converted into a Base Rate Loan and (B)
otherwise, automatically be continued as a Eurocurrency Rate Loan
in its original currency with an Interest Period of one month, such
conversion or continuation to be effective as of the last day of
the Interest Period then in effect with respect to such
Eurocurrency Rate Loan. If the Company requests a Committed
Borrowing of, conversion to, or continuation of Eurocurrency Rate
Loans in any such Committed Loan Notice, but fails to specify an
Interest Period, it will be deemed to have specified an Interest
Period of one month. No Committed Loan may be converted into or
continued as a Committed Loan denominated in a different currency,
but instead must be prepaid in the original currency of such
Committed Loan and reborrowed in the other currency.
(b) Following
receipt of a written Committed Loan Notice requesting a Committed
Borrowing, the Applicable Agent shall promptly notify each
applicable Lender of the details thereof and of such Lender’s
Share of the requested Committed Borrowing. Each applicable Lender
shall make the amount of its Committed Loan available to the
Applicable Agent in Same Day Funds at the Agent’s Office not
later than 3:00 p.m., Specified Time, on the Business Day specified
in the applicable Committed Loan Notice. The Applicable Agent shall
make all funds so received by it available to the applicable
Borrower in like funds as received by such Agent by transfer to an
account designated by such Borrower in a notice provided to (and
reasonably acceptable to) such Agent.
(c) Except
as otherwise provided herein, a Eurocurrency Rate Loan may be
continued or converted only on the last day of an Interest Period
for such Eurocurrency Rate Loan. During the existence of an Event
of Default, (i) no Committed Primary Revolving Loans that are
Dollar Domestic Loans may be converted to or continued as
Eurocurrency Rate Loans without the consent of the Required Primary
Revolving Lenders and (ii) no Committed Loans of any Class
denominated in any Alternative Currency may be continued as
Eurocurrency Rate Loans with an Interest Period of
longer than one month without the
consent of the Lenders holding a majority in interest of the
Committed Loans of such Class.
(d) After
giving effect to all Committed Borrowings, all conversions of
Committed Loans from one Type to the other, and all continuations
of Committed Loans as the same Type, there shall not be more than
ten Interest Periods in effect with respect to Committed
Loans.
(e) Notwithstanding
anything to the contrary in this Section 2.02, the Company
shall not request any Committed Borrowing that would result in a
Committed Primary Revolving Loan in a principal amount less than
€50,000 being made to any Dutch Borrower unless the Lender
making such Loan shall theretofore have made a Committed Primary
Revolving Loan to a Borrower in a principal amount not less than
€50,000.
2.03
Letters of Credit. (a)
The Letter of Credit Commitment . (i) Subject to the terms
and conditions set forth herein, (A) each L/C Issuer agrees, in
reliance upon the agreements of the Primary Revolving Lenders set
forth in this Section 2.03, (1) from time to time on any
Business Day during the period from the Closing Date until the
Letter of Credit Expiration Date to issue Letters of Credit
denominated in Dollars for the account of any Domestic Borrower or
in Dollars or in any Alternative Currency for the account of any
other Primary Revolving Borrower, and to amend Letters of Credit
previously issued by it, in accordance with subsection (b)
below, and (2) to honor drawings under the Letters of Credit; and
(B) the Primary Revolving Lenders severally agree to participate in
Letters of Credit issued for the account of the Primary Revolving
Borrowersand any L/C Disbursements thereunder;
provided that after
giving effect to any L/C Credit Extension with respect to any
Letter of Credit, (w) the Total Primary Revolving Outstandings
shall not exceed the Aggregate Primary Revolving Commitments,
(x) any Primary Revolving Lender’s Applicable Primary
Revolving Percentage of the Total Primary Revolving Outstandings
shall not exceed such Lender’s Primary Revolving Commitment,
(y) the Total Primary Revolving Outstandings with respect to
Domestic Borrowers shall not exceed the Domestic Borrowing Sublimit
and (z) the Outstanding Amount of the L/C Obligations shall
not exceed the Letter of Credit Sublimit. Each request by the
Company for the issuance or amendment of a Letter of Credit for the
account of any Primary Revolving Borrower shall be deemed to be a
representation by the Company and such Primary Revolving Borrower
that the L/C Credit Extension so requested complies with the
conditions set forth in the proviso to the preceding sentence.
Within the foregoing limits, and subject to the terms and
conditions hereof, the Primary Revolving Borrowers’ ability
to obtain Letters of Credit shall be fully revolving, and
accordingly the Primary Revolving Borrowers may obtain Letters of
Credit to replace Letters of Credit that have expired or that have
been drawn upon and reimbursed. All Existing Letters of Credit
shall be deemed to have been issued pursuant hereto, and from and
after the Closing Date shall be subject to and governed by the
terms and conditions hereof.
|
|
(ii)
|
An L/C Issuer shall not issue any
Letter of Credit, if:
|
(A) subject
to Section 2.03(b)(iii) , the expiry date of such requested
Letter of Credit would occur more than 12 months after the date
of
issuance thereof, unless the
Required Primary Revolving Lenders have approved such expiry date;
or
(B) the
expiry date of such requested Letter of Credit would occur after
the Letter of Credit Expiration Date, unless (1) all the
Primary Revolving Lenders have approved such expiry date or (2)
such Letter of Credit is an Extended Letter of Credit.
(iii) An
L/C Issuer shall not be under any obligation to issue any Letter of
Credit if:
(A) any
order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain such
L/C Issuer from issuing such Letter of Credit, or any Law
applicable to such L/C Issuer or any request or directive (whether
or not having the force of law) from any Governmental Authority
with jurisdiction over such L/C Issuer shall prohibit, or request
that such L/C Issuer refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or shall
impose upon such L/C Issuer with respect to such Letter of Credit
any restriction, reserve or capital requirement (for which such L/C
Issuer is not otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon such L/C Issuer any unreimbursed
loss, cost or expense which was not applicable on the Closing Date
and which such L/C Issuer in good faith deems material to it, and
such L/C Issuer shall have notified the Company of the occurrence
of any of the foregoing;
(B) such
Letter of Credit is to be denominated in a currency other than
Dollars or, in the case of any Letter of Credit issued for the
account of any Primary Revolving Borrower that is not a Domestic
Borrower, Euros (or any other Alternative Currency in which such
L/C Issuer shall have agreed to issue Letters of
Credit);
(C) except
as otherwise agreed by the Administrative Agent and such L/C
Issuer, such Letter of Credit is in an initial stated amount of
less than the Dollar Equivalent of $500,000;
(D) such
Letter of Credit contains any provisions for automatic
reinstatement of the stated amount after any drawing
thereunder;or
(E) a
default of any Primary Revolving Lender’s obligations to fund
under Section 2.03(c) exists or any Primary Revolving Lender
is at such time a Defaulting Lender hereunder, unless such L/C
Issuer has entered into satisfactory arrangements with the Company
or such Primary Revolving Lender to eliminate such L/C
Issuer’s risk with respect to such Primary Revolving
Lender.
(iv) An
L/C Issuer shall not amend any Letter of Credit if such L/C Issuer
would not be permitted at such time to issue such Letter of Credit
in its amended form under the terms hereof.
(v) An
L/C Issuer shall be under no obligation to amend any Letter of
Credit if (A) such L/C Issuer would have no obligation at such time
to issue such Letter of Credit in its amended form under the terms
hereof, or (B) the beneficiary of such Letter of Credit does not
accept the proposed amendment to such Letter of Credit.
(vi) Each
L/C Issuer shall act on behalf of the Primary Revolving Lenders
with respect to any Letters of Credit issued by it and the
documents associated therewith, and each L/C Issuer shall have all
of the benefits and immunities (A) provided to the
Administrative Agent in Article IX with respect to any acts
taken or omissions suffered by such L/C Issuer in connection with
Letters of Credit issued by it or proposed to be issued by it and
Issuer Documents pertaining to such Letters of Credit as fully as
if the term “Administrative Agent” as used in
Article IX included such L/C Issuer with respect to such acts
or omissions and (B) as additionally provided herein with respect
to such L/C Issuer.
(b)
Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit .
(i) Each
Letter of Credit shall be issued or amended, as the case may be,
upon the request of the Company delivered to the applicable L/C
Issuer (with a copy to the Administrative Agent) in the form of a
Letter of Credit Application, appropriately completed and signed by
a Responsible Officer of the Company. Such Letter of Credit
Application must be received by such L/C Issuer and the
Administrative Agent not later than 11:00 a.m., Specified Time, at
least two Business Days (or such later date and time as the
Administrative Agent and such L/C Issuer may agree in a particular
instance in their sole discretion) prior to the requested date of
issuance or amendment, as the case may be. In the case of a request
for an initial issuance of a Letter of Credit, such Letter of
Credit Application shall specify, in form and detail satisfactory
to the applicable L/C Issuer, (A) the requested date of
issuance of the requested Letter of Credit (which shall be a
Business Day), (B) the Primary Revolving Borrower for whose account
such Letter of Credit is to be issued, (C) the amount and currency
thereof, (D) the expiry date thereof, (E) the name and address of
the beneficiary thereof, (F) the documents to be presented by such
beneficiary in case of any drawing thereunder, (G) the full text of
any certificate to be presented by such beneficiary in case of any
drawing thereunder, and (H) such other matters as such L/C Issuer
may reasonably require. In the case of a request for an amendment
of any outstanding Letter of Credit, such Letter of Credit
Application shall specify, in form and detail satisfactory to the
applicable L/C Issuer, (1) the Letter of Credit to be amended, (2)
the proposed date of amendment thereof (which shall be a Business
Day), (3) the nature of the proposed amendment and (4) such other
matters as such L/C Issuer may reasonably require. Additionally,
the Company shall furnish to the applicable L/C Issuer and the
Administrative Agent such other documents and information
pertaining to such requested issuance or amendment of a Letter of
Credit, including any Issuer Documents, as such L/C Issuer or the
Administrative Agent may reasonably require.
(ii) Promptly
after receipt of any Letter of Credit Application, the applicable
L/C Issuer will confirm with the Administrative Agent (by telephone
or in
writing) that the Administrative
Agent has received a copy of such Letter of Credit Application and,
if not, such L/C Issuer will provide the Administrative Agent with
a copy thereof. On the requested date of issuance or amendment of
the applicable Letter of Credit, such L/C Issuer shall issue a
Letter of Credit for the account of the applicable Primary
Revolving Borrower or enter into the applicable amendment, as the
case may be, in each case in accordance with such L/C
Issuer’s usual and customary business practices;
provided , however, that no L/C Issuer shall make any L/C
Credit Extension hereunder without first obtaining written
confirmation from the Administrative Agent that such L/C Credit
Extension would comply with the conditions set forth in the proviso
set forth in Section 2.03(a)(i). Immediately upon the issuance
of each Letter of Credit (or an amendment to a Letter of Credit
increasing the amount thereof), each Primary Revolving Lender shall
be deemed to, without any further action on the part of the
applicable L/C Issuer or any Primary Revolving Lender, to have
acquired from the applicable L/C Issuer a risk participation in
such Letter of Credit in an amount equal to the product of such
Primary Revolving Lender’s Applicable Primary Revolving
Percentage times the
amount of such Letter of Credit, and, in consideration of the
foregoing, irrevocably and unconditionally agrees to fund such
participation in accordance with this Section 2.03.
(iii) If
the Company so requests in any applicable Letter of Credit
Application, any L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit (each such Letter of
Credit being referred to as an “ Auto-Extension Letter of
Credit ”) that contains automatic extension provisions
pursuant to which the expiry date of such Letter of Credit shall
automatically be extended for a period of up to 12 months (but not,
except as provided in Section 2.03(a)(ii)(B), beyond the
Letter of Credit Expiration Date); provided
that any such Auto-Extension Letter
of Credit must permit such L/C Issuer to prevent any such extension
by giving notice to such effect (a “ Non-Extension
Notice ”) to the beneficiary thereof prior to the
then-applicable expiry date. Unless otherwise directed by the
applicable L/C Issuer, neither the Company nor any other Primary
Revolving Borrower shall be required to make a specific request to
such L/C Issuer for any such extension. Subject to
Section 2.03(a)(ii)(B), once an Auto-Extension Letter of
Credit has been issued, the Primary Revolving Lenders shall be
deemed to have authorized (but may not require) the applicable L/C
Issuer to permit the extension of such Letter of Credit.
(iv) Promptly
after its delivery of any Letter of Credit or any amendment to a
Letter of Credit to an advising bank with respect thereto or to the
beneficiary thereof, the applicable L/C Issuer will also deliver to
the Company and the Administrative Agent a true and complete copy
of such Letter of Credit or amendment.
|
|
(c)
|
Drawings and Reimbursements;
Funding of Participations .
|
(i) Upon
receipt from the beneficiary of any Letter of Credit of any notice
of a drawing under such Letter of Credit, the applicable L/C Issuer
shall notify the Company and the Administrative Agent thereof and
whether such L/C Issuer has made or will make a payment thereunder
(any such payment being referred to as an “ L/C
Disbursement ”, and the date of any such payment being
referred to as the “ Honor Date ”
thereof); provided , that any
failure to give or delay in giving such notice shall not relieve
the applicable Primary Revolving Borrower of its obligation to
reimburse such L/C Issuer and the Primary Revolving Lenders, as
applicable, with respect to any such L/C Disbursement. If an L/C
Issuer shall make any L/C Disbursement, the applicable Primary
Revolving Borrower shall reimburse such L/C Issuer by paying to the
Administrative Agent, for account of such L/C Issuer, an amount
equal to the amount of such L/C Disbursement, in the currency
thereof, not later than 2:00 p.m., Specified Time, on the
Business Day immediately following the day on which the Company
receives notice of such L/C Disbursement (or, if the Company shall
have received notice of such L/C Disbursement on a day that is not
a Business Day, the second Business Day immediately following such
day). If such Primary Revolving Borrower fails so to reimburse such
L/C Issuer for such L/C Disbursement, such L/C Issuer shall
promptly notify the Administrative Agent thereof, and, upon receipt
of such notice, the Administrative Agent shall promptly notify each
Primary Revolving Lender of the Honor Date of such L/C
disbursement, the unreimbursed amount and currency thereof (the
“ Unreimbursed Amount ”) and the amount of such
Lender’s Applicable Primary Revolving Percentage of the
Unreimbursed Amount. Any notice given by any L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may
be given by telephone if promptly confirmed in writing;
provided that the lack
of such a confirmation shall not affect the conclusiveness or
binding effect of such notice.
(ii) Each
Primary Revolving Lender shall, upon receipt of any notice pursuant
to Section 2.03(c)(i), make funds available to the
Administrative Agent for the account of the applicable L/C Issuer,
at the Agent’s Office, in an amount and currency equal to its
Applicable Primary Revolving Percentage of the Unreimbursed Amount
not later than 2:00 p.m., Specified Time, on the Business Day
specified in such notice by the Administrative Agent. The
Administrative Agent shall remit the funds so received to the
applicable L/C Issuer. The making of any L/C Advance shall not
relieve or otherwise impair the obligation of the applicable
Primary Revolving Borrower to reimburse each L/C Issuer for any L/C
Disbursement made by such L/C Issuer, together with interest as
provided herein.
(iii) If
any L/C Issuer shall make any L/C Disbursement, then, unless the
applicable Primary Revolving Borrower shall reimburse such L/C
Disbursement in full on the Honor Date thereof, the unpaid amount
thereof shall bear interest, for each day from and including the
Honor Date to the date of reimbursement thereof, at the Default
Rate. Interest accrued pursuant to this subsection shall be for the
account of the applicable L/C Issuer, except that interest accrued
on and after the date of payment by any Primary Revolving Lender of
its L/C Advance shall be for the account of such Primary Revolving
Lender to the extent of such L/C Advance, and shall be payable on
demand or, if no demand has been made, on the date on which the
applicable Primary Revolving Borrower reimburses such L/C
Disbursement in full.
(iv) Each
Primary Revolving Lender’s obligation to make L/C Advances to
reimburse each L/C Issuer for L/C Disbursements as contemplated by
this Section 2.03(c) shall be absolute and unconditional and
shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right
which such Primary Revolving Lender
may have against such L/C Issuer, the Company, any Subsidiary or
any other Person for any reason whatsoever, (B) the occurrence
or continuance of a Default or (C) any other occurrence, event
or condition, whether or not similar to any of the foregoing;
provided , however , that, notwithstanding the
foregoing or anything else to the contrary set forth herein, no
Primary Revolving Lender (1) shall have any obligation to make any
L/C Advance to reimburse any L/C Issuer for any L/C Disbursement
made under any Extended Letter of Credit after the Letter of Credit
Expiration Date and (2) shall otherwise be deemed to have any risk
participation in any Extended Letter of Credit after the Letter of
Credit Expiration Date, except to the extent of any L/C
Disbursements made under any Extended Letter of Credit prior to the
Letter of Credit Expiration Date. The foregoing shall not affect
the right of any L/C Issuer that shall have issued an Extended
Letter of Credit to seek reimbursement for any L/C Disbursement
made thereunder from the applicable Primary Revolving Borrower or
from the Designated Cash Collateral therefor.
(v) If
any Primary Revolving Lender fails to make available to the
Administrative Agent for the account of any L/C Issuer any amount
required to be paid by such Primary Revolving Lender pursuant to
the foregoing provisions of this Section 2.03(c) by the time
specified in Section 2.03(c)(ii), such L/C Issuer shall be
entitled to recover from such Primary Revolving Lender (acting
through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available
to such L/C Issuer at a rate per annum equal to the applicable
Overnight Rate from time to time in effect. A certificate of the
applicable L/C Issuer submitted to any Primary Revolving Lender
(through the Administrative Agent) with respect to any amounts
owing under this clause (v) shall be conclusive absent
manifest error.
|
|
(d)
|
Repayment of
Participations .
|
(i) At
any time after any L/C Issuer has made an L/C Disbursement and has
received from any Primary Revolving Lender such Primary Revolving
Lender’s L/C Advance in respect thereof in accordance with
Section 2.03(c), if the Administrative Agent receives for the
account of such L/C Issuer any payment in respect of such L/C
Disbursement or interest thereon (whether directly from the Company
or otherwise, including proceeds of Cash Collateral applied thereto
by the Administrative Agent), the Administrative Agent will
distribute to such Primary Revolving Lender its Applicable Primary
Revolving Percentage thereof (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which
such Primary Revolving Lender’s L/C Advance was outstanding)
in the same currency and funds as those received by the
Administrative Agent.
(ii) If
any payment received by the Administrative Agent for the account of
any L/C Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in
Section 10.05 (including pursuant to any settlement entered
into by such L/C Issuer in its discretion), each Primary Revolving
Lender shall pay to the Administrative Agent for the account of
such L/C Issuer its Applicable Primary Revolving Percentage thereof
on demand of the Administrative Agent, plus
interest thereon from the date of
such demand to the date such amount is returned by such Primary
Revolving Lender, at a rate per annum equal to the applicable
Overnight Rate from time to time in effect. The obligations of the
Primary Revolving Lenders under this clause shall survive the
payment in full of the Loan Documents Obligations and the
termination of this Agreement.
(e)
Obligations Absolute .The obligation of each Primary
Revolving Borrower to reimburse each L/C Issuer for each L/C
Disbursement shall be absolute, unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the
following:
(i) any
lack of validity or enforceability of such Letter of Credit, this
Agreement, or any other Loan Document;
(ii) the
existence of any claim, counterclaim, setoff, defense or other
right that the Company or any Subsidiary may have at any time
against any beneficiary or any transferee of such Letter of Credit
(or any Person for whom any such beneficiary or any such transferee
may be acting), any L/C Issuer or any other Person, whether in
connection with this Agreement, the transactions contemplated
hereby or by such Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;
(iii) any
draft, demand, certificate or other document presented under such
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue
or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make
a drawing under such Letter of Credit;
(iv) any
payment by such L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made
by such L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or
other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in
connection with any proceeding under any Debtor Relief
Law;
(v) any
adverse change in the relevant exchange rates or in the
availability of any Alternative Currency to the Company or any
Subsidiary or in the relevant currency markets generally;
or
(vi) any
other circumstance or happening whatsoever, whether or not similar
to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge
of, the Company or any Subsidiary.
The Company shall promptly examine a
copy of each Letter of Credit and each amendment thereto that is
delivered to it and, in the event of any claim of noncompliance
with the Company’s instructions or other irregularity, the
Company will immediately notify the applicable L/C Issuer. The
Company and each other Primary Revolving Borrower shall
be
conclusively deemed to have waived
any such claim against the applicable L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f)
Role of L/C Issuer .Each Lender and each Primary Revolving
Borrower agree that, in paying any drawing under a Letter of
Credit, no L/C Issuer shall have any responsibility to obtain any
document (other than any sight draft, certificates and documents
expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document.
None of the L/C Issuers, the Agents, any of their respective
Related Parties or any correspondent, participant or assignee of
any L/C Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the
approval of the Primary Revolving Lenders, the Required Primary
Revolving Lenders or the Required Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or
willful misconduct; or (iii) the due execution, effectiveness,
validity or enforceability of any document or instrument related to
any Letter of Credit or Issuer Document. Each Primary Revolving
Borrower hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of
Credit; provided , however , that this assumption is
not intended to, and shall not, preclude any Primary Revolving
Borrower from pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other
agreement. None of the L/C Issuers, the Agents, any of their
respective Related Parties or any correspondent, participant or
assignee of any L/C Issuer shall be liable or responsible for any
of the matters described in clauses (i) through (v) of
Section 2.03(e); provided , however , that
anything in such clauses to the contrary notwithstanding, a Primary
Revolving Borrower may have a claim against an L/C Issuer, and such
L/C Issuer may be liable to such Primary Revolving Borrower, to the
extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by such Primary
Revolving Borrower and which such Primary Revolving Borrower proves
were caused by such L/C Issuer’s willful misconduct or gross
negligence or such L/C Issuer’s willful failure to pay under
any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying
with the terms and conditions of such Letter of Credit.
In furtherance and not in limitation
of the foregoing, any L/C Issuer may accept documents that appear
on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the
contrary, and no L/C Issuer shall be responsible for the validity
or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any
reason.
(i) &nbs
