AMPHENOL CORPORATION
FIRST AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is dated as of May 1, 1998 and entered into by and among Amphenol
Corporation, a Delaware corporation ("Company"), Amphenol Holding UK, Limited, a
limited liability company incorporated under the laws of England and Wales ("UK
Holding"), Amphenol Commercial & Industrial UK, Limited, a limited liability
company incorporated under the laws of England and Wales ("ACI"), the financial
institutions listed on the signature pages hereof ("Lenders"), The Chase
Manhattan Bank, as syndication agent ("Syndication Agent"), The Bank of New
York, as documentation agent ("Documentation Agent") and Bankers Trust Company,
as administrative agent for Lenders ("Administrative Agent"), and, for purposes
of Section 4 hereof, the Credit Support Parties (as defined in Section 4 hereof)
listed on the signature pages hereof, and is made with reference to that certain
Amended and Restated Credit Agreement dated as of October 3, 1997, (the "Credit
Agreement"), by and among Company, UK Holding, ACI, Lenders, Syndication Agent,
Documentation Agent and Administrative Agent. Capitalized terms used herein
without definition shall have the same meanings herein as set forth in the
Credit Agreement.
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WHEREAS, UK Borrowers desire to repay the Sterling Loans in full and
Company and Lenders desire to amend the Credit Agreement to (i) make Additional
Tranche A Term Loans in Dollars in an amount equal to the Sterling Loans to be
repaid such that the aggregate amount of Tranche A Term Loans outstanding
remains the same and (ii) make certain other amendments as set forth below;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
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Section 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendments to Section 1: Provisions Relating to Defined Terms
A. Subsection 1.1 of the Credit Agreement is hereby amended by
adding thereto the following definitions, which shall be inserted in proper
alphabetical order:
"Additional Tranche A Term Loan Commitment" means the commitment of
a Lender to make Additional Tranche A Term Loans to Company pursuant to
subsection 2.1(i)(Y), and "Additional Tranche A Term Loan Commitments" means
such commitments of all Lenders in the aggregate.
"Additional Tranche A Term Loans" means the Loans made as Additional
Tranche A Term Loans by Lenders to Company on the First Amendment Funding Date
pursuant to subsection 2.1A(i)(Y) of the Credit Agreement.
"First Amendment" shall mean the First Amendment to Amended and
Restated Credit Agreement dated as of May 1, 1998, by and among Company, UK
Holdings, ACI, the Lenders party thereto, Syndication Agent, Documentation Agent
and Administrative Agent, and, for the purposes stated therein, Subsidiary
Guarantors.
"First Amendment Effective Date" shall have the meaning assigned to
such term in Section 5 of the First Amendment.
"First Amendment Funding Date" shall have the meaning assigned to
such term in subsection 4.1A of this Agreement.
B. Subsection 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Tranche A Term Loans" in its entirety and
substituting therefor the following:
"Tranche A Term Loans" means (i) the Loans made as Tranche A Term
Loans by Lenders to Company and U.K. Borrowers on the Closing Date pursuant to
subsection 2.1A(i) of the Original Credit Agreement and maintained as Tranche A
Term Loans pursuant to subsection 2.1A(i)(X) and (ii) the Additional Tranche A
Term Loans.
1.2 Amendments to Section 2: Amounts and Terms of Commitments and
Loans
A. Additional Tranche A Term Loan Commitment. Subsection 2.1A of the
Credit Agreement is hereby amended by renumbering subsection 2.1A(i) as
2.1A(i)(X) and by adding new subsection 2.1A(i)(Y) thereto as follows:
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(Y) Additional Tranche A Term Loans. On the First Amendment Funding
Date, each Lender having an Additional Tranche A Term Loan Commitment will make
Additional Tranche A Term Loans to Company in an aggregate amount equal to its
Additional Tranche A Term Loan Commitment as of the First Amendment Effective
Date as set forth opposite its name on Schedule 2.1A for the purposes identified
in subsection 2.5A; provided that the Additional Tranche A Term Loan Commitments
of Lenders shall be adjusted to give effect to any assignments of the Additional
Tranche A Term Loan Commitments pursuant to subsection 10.1B. The aggregate
amount of the Additional Tranche A Term Loan Commitments is $56,000,000. Each
Lender's Additional Tranche A Term Loan Commitment shall expire immediately and
without further action on the close of business on May 15, 1998 if the
Additional Tranche A Term Loans are not made on or before that date. Each of the
parties hereto hereby acknowledges and agrees that each Additional Tranche A
Term Loan is a Tranche A Term Loan for all purposes under the Credit Agreement
and the other Loan Documents. Amounts repaid or prepaid in respect of Additional
Tranche A Term Loans may not be reborrowed.
B. Borrowing Mechanics. Subsection 2.1B is hereby amended by
inserting the words "or Additional Tranche A Term Loans" immediately following
the words "Revolving Loans" in the third sentence thereof.
C. Scheduled Payments of Tranche A Term Loans. Subsection 2.4A(i)(a)
is hereby amended by deleting the reference to "Restatement Closing Date"
contained therein and substituting therefor a reference to "First Amendment
Funding Date."
D. U.K. Tax Status. Subsection 2.7B(iv)(a) is hereby amended by (1)
deleting the parenthetical in the fifth line thereof and substituting therefor
the following:
"(in the case of each other Tranche A Lender becoming a Lender while any
Sterling Loans are outstanding)"
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and (2) by adding the following language at the end thereof:
"with respect to any period during which any Sterling Loans are
outstanding"
1.3 Amendments to Section 4: Conditions to Loans Section 4 of the
Credit Agreement is hereby amended by adding a new subsection 4.1A immediately
after Section 4.1 as follows:
"4.1A Conditions to Additional Tranche A Term Loans.
The obligations of Lenders to make Additional Tranche A Term Loans
are, in addition to the conditions precedent set forth in subsection 4.2,
subject to the prior or concurrent satisfaction of the following conditions on
or before May 15, 1998] (the date of satisfaction of such conditions being
referred to herein as the "First Amendment Funding Date"):
A. Loan Party Documents. On or before the First Amendment Funding
Date, Company shall, and shall cause each other Loan Party to, deliver to
Lenders (or to Administrative Agent for Lenders with sufficient originally
executed copies, where appropriate, for each Lender and its counsel) the
following with respect to Company or such Loan Party, as the case may be, each,
unless otherwise noted, dated as of the First Amendment Funding Date:
1. A certificate of such Person's corporate secretary or assistant
secretary to the effect that there has been no change to such Person's
Certificate or Articles of Incorporation or Bylaws (or, in the case of
each U.K. Borrower, its Memorandum and Articles of Association) since the
Restatement Closing Date;
2. Resolutions of the Board of Directors of such Person approving
and authorizing the execution and delivery of the First Amendment and the
performance of the Amended Agreement (as defined herein), certified as of
the First Amendment Funding Date by the corporate secretary or an
assistant secretary of such Person as being in full force and effect as of
the First Amendment Effective Date and as of the First Amendment Funding
Date without modification or amendment; and
3. Signature and incumbency certificates of the officers of such
Person as of the First Amendment Effective Date and as of the First
Amendment Funding Date executing the First Amendment and the Tranche A
Term Notes, if any.
B. Opinions of Counsel to Loan Parties. Lenders and their respective
counsel shall have received originally executed copies of one or more favorable
written opinions of (i) Xxxxxx X. Xxxxxxx, general counsel for Company, (ii)
Xxxxxxx Xxxxxxx & Xxxxxxxx,
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special counsel for Loan Parties and (iii) Ashurst Xxxxxx Xxxxx, U.K. counsel,
in each case dated as of the First Amendment Funding Date, as to enforceability
of the Loan Documents against Company and Subsidiary Guarantors and such other
matters as Administrative Agent and its counsel shall reasonably request, in
form and substance satisfactory to Administrative Agent and its counsel, and
Company hereby requests such counsel for Loan Parties to deliver such opinions.
C. Representations and Warranties; Performance of Agreements.
Company shall have delivered to Administrative Agent an Officer's Certificate,
in form and substance satisfactory to Administrative Agent, to the effect that
the representations and warranties in Section 5 of this Agreement are true and
correct in all material respects on and as of the First Amendment Funding Date
to the same extent as though made on and as of that date (or, to the extent such
representations and warranties specifically relate to an earlier date, that such
representations and warranties were true, correct and complete in all material
respects on and as of such earlier date).
D. Repayment of Sterling Loans. The Sterling Loans and all other
amounts owed hereunder with respect to the Sterling Loans shall have been paid
in full in accordance with the provisions of subsection 2.4B(i) hereof on or
before the First Amendment Funding Date and all obligations with respect
thereto, other than those obligations that expressly survive the payment of the
Loans, shall have been terminated.
E. Supplemental Share Pledge. Company shall have delivered to
Administrative Agent a supplemental share pledge dated as of the First Amendment
Funding Date with respect to the pledge by Company of the stock of UK Holding in
form and substance satisfactory to Administrative Agent.
F. No Default. No event shall have occurred and be continuing or
would result from the borrowing of the Additional Tranche A Term Loans that
would constitute an Event of Default or Potential Event of Default."
1.4 Amendments to Section 10: Miscellaneous.
A. General. Subsection 10.1A is hereby amended by inserting the
following proviso immediately after the third proviso to the first sentence
thereof:
"; provided, further that any sale, assignment or transfer of any
Additional Tranche A Term Loan Commitment shall be made pro rata with a sale,
assignment or transfer of such Lender's outstanding Tranche A Term Loans;"
B. Assignments. Subsection 10.1B(i) is hereby amended by inserting
the following proviso immediately after the second proviso to the first sentence
thereof:
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"; provided, further that any sale, assignment or transfer of any
Additional Tranche A Term Loan Commitment shall be made pro rata with a sale,
assignment or transfer of such Lender's outstanding Tranche A Term Loans;"
1.5 Addition of Schedule
Schedule 2.1A: Additional Tranche A Term Loan Commitments. Schedule
2.1A (Additional Tranche A Term Loan Commitments) is hereby added as a Schedule
to the Credit Agreement.
1.6 Substitution of Exhibit
Exhibit XII: Form of Assignment Agreement. Exhibit XII to the Credit
Agreement is hereby amended by deleting said Exhibit XII in its entirety and
substituting in place thereof a new Exhibit XII in the form of Annex II to this
Amendment.
1.7 Amendment of Exhibit
Exhibit IV-A: Form of Tranche A Term Note. Exhibit IV-A to the
Credit Agreement is hereby amended, effective as of the First Amendment Funding
Date, by (a) deleting the reference to "$294,000,000" in the fourth paragraph
thereof and substituting therefor a reference to "$350,000,000," (b) deleting
the reference to "$254,000,000" in the fourth paragraph thereof and substituting
therefor a reference to "$310,000,000" and (c) deleting the reference to
"Restatement Closing Date" in the fourth paragraph thereof and substituting
therefor a reference to "First Amendment Funding Date."
Section 2. TRANCHE A TERM NOTES
As promptly after the First Amendment Funding Date as practicable,
each Lender shall surrender its Tranche A Term Notes, if any, to Administrative
Agent for cancellation, and thereupon new Tranche A Term Notes shall, if so
requested by such Lender, be issued to such Lender substantially in the form of
Exhibit IV-A with appropriate insertions to reflect its outstanding Tranche A
Term Loans after making the Additional Tranche A Term Loans.
Section 3. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, each of the Loan Parties
represents and warrants to each Lender that the following statements are true,
correct and complete as of the date hereof and as of the First Amendment
Effective Date and the First Amendment Funding Date:
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A. Corporate Power and Authority. Company has all requisite
corporate power and authority to enter into this Amendment, to issue the
Additional Tranche A Term Notes, if any, and to carry out the transactions
contemplated by, and perform its obligations under, the Credit Agreement as
amended by this Amendment (the "Amended Agreement"). Each other Loan Party has
all requisite corporate power and authority to enter into this Amendment and to
carry out the transactions contemplated by, and perform its obligations under,
the Amended Agreement.
B. Authorization of Agreements. The execution and delivery of this
Amendment and the performance of the Amended Agreement by each of the Loan
Parties have been duly authorized by all necessary corporate action on the part
of each Loan Party. The issuance, delivery and payment of the Tranche A Term
Notes, if any, have been duly authorized by all necessary corporate action on
the part of Company.
C. No Conflict. The execution and delivery by each of the Loan
Parties of this Amendment and the performance by each of the Loan Parties of the
Amended Agreement and the issuance, delivery and payment of the Tranche A Term
Notes, if any, by Company do not and will not (i) violate any provision of any
law or any governmental rule or regulation applicable to any Loan Party or any
of its Subsidiaries, the Certificate or Articles of Incorporation or Bylaws of
any Loan Party or any of its Subsidiaries or any order, judgment or decree of
any court or other agency of government binding on any Loan Party or any of its
Subsidiaries, (ii) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any Contractual Obligation of
any Loan Party or any of its Subsidiaries, (iii) result in or require the
creation or imposition of any Lien upon any of the properties or assets of any
Loan Party or any of its Subsidiaries (other than Liens created under any of the
Loan Documents in favor of Administrative Agent on behalf of Lenders), or (iv)
require any approval of stockholders or any approval or consent of any Person
under any Contractual Obligation of any Loan Party or any of its Subsidiaries.
D. Governmental Consents. The execution and delivery by each Loan
Party of this Amendment and the performance by each Loan Party of the Amended
Agreement and the issuance, delivery and payment of the Tranche A Term Notes, if
any, by Company do not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any federal, state or
other governmental authority or regulatory body.
E. Binding Obligation. This Amendment and the Amended Agreement have
been duly executed and delivered by each of the Loan Parties and are, and the
Tranche A Term Notes, if any, when executed and delivered, will be the legally
valid and binding obligations of each Loan Party, enforceable against each Loan
Party in accordance with their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles relating to
enforceability.
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G. Absence of Default. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Amendment that would constitute an Event of Default or a Potential Event of
Default.
Section 4. ACKNOWLEDGEMENT AND CONSENT
Company is a party to the Pledge Agreements pursuant to which
Company has created Liens in favor of Administrative Agent on certain Collateral
to secure the Obligations. Each Subsidiary Guarantor is a party to the
Subsidiary Guaranty pursuant to which the Subsidiary Guarantors have guarantied
the Obligations. Company and the Subsidiary Guarantors are collectively referred
to herein as the "Credit Support Parties".
Each Credit Support Party hereby acknowledges that it has reviewed
the terms and provisions of the Credit Agreement and this Amendment and consents
to the amendment of the Credit Agreement effected pursuant hereto. Each Credit
Support Party hereby confirms that each Loan Document to which it is a party or
otherwise bound and all Collateral encumbered thereby will continue to guaranty
or secure, as the case may be, to the fullest extent possible the payment and
performance of all "Obligations," "Guarantied Obligations" and "Secured
Obligations," as the case may be (in each case as such terms are defined in the
applicable Loan Document), including without limitation the payment and
performance of all such "Obligations," "Guarantied Obligations" or "Secured
Obligations," as the case may be, in respect of the Obligations of the Borrowers
now or hereafter existing under or in respect of the Amended Agreement and the
Notes defined therein. Without limiting the generality of the foregoing, each
Credit Support Party hereby acknowledges and confirms the understanding and
intent of such party that, upon the effectiveness of this Amendment, and as a
result thereof, the definition of "Obligations" contained in the Amended
Agreement (and the definition of "Secured Obligations" contained in the Pledge
Agreements) includes the obligations of Company under the Tranche A Term Notes.
Each Credit Support Party acknowledges and agrees that any of the
Loan Documents to which it is a party or otherwise bound shall continue in full
force and effect and that all of its obligations thereunder shall be valid and
enforceable and shall not be impaired or limited by the execution or
effectiveness of this Agreement.
Each Subsidiary Guarantor acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Amendment,
such Subsidiary Guarantor is not required by the terms of the Subsidiary
Guaranty or any other Loan Document to consent to the amendment of the Credit
Agreement effected pursuant to this Agreement and (ii) nothing in the Credit
Agreement, this Amendment or any other Loan Document shall be deemed to require
the consent of such Subsidiary Guarantor to any future amendments to the Credit
Agreement.
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Section 5. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and the Other
Loan Documents.
(i) On and after the First Amendment Effective Date, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement, and
each reference in the other Loan Documents to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of
Administrative Agent or any Lender under, the Credit Agreement or any of
the other Loan Documents.
B. Fees and Expenses. Company acknowledges that all costs, fees and
expenses as described in subsection 10.2 of the Credit Agreement incurred by
Administrative Agent and its counsel with respect to this Amendment and the
documents and transactions contemplated hereby shall be for the account of
Company.
C. Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. Counterparts; Effectiveness. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment shall become
effective upon the
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execution of a counterpart hereof by Company, Requisite Lenders, each of the
Lenders identified on Schedule 2.1A, and each of the Credit Support Parties and
receipt by Company and Administrative Agent of written or telephonic
notification of such execution and authorization of delivery thereof (such date
of execution and delivery being referred to herein as the "First Amendment
Effective Date").
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