CREDIT AGREEMENT Dated as of March 31, 2011 Among AVAGO TECHNOLOGIES FINANCE PTE. LTD. as Borrower AVAGO TECHNOLOGIES HOLDING PTE. LTD. AVAGO TECHNOLOGIES INTERNATIONAL SALES PTE. LIMITED AVAGO TECHNOLOGIES U.S. INC. and AVAGO TECHNOLOGIES GENERAL IP...
Exhibit 10.4
EXECUTION VERSION
Dated as of March 31, 2011
Among
AVAGO TECHNOLOGIES FINANCE PTE. LTD.
as Borrower
as Borrower
AVAGO TECHNOLOGIES HOLDING PTE. LTD.
AVAGO TECHNOLOGIES INTERNATIONAL SALES PTE. LIMITED
AVAGO TECHNOLOGIES U.S. INC.
and
AVAGO TECHNOLOGIES GENERAL IP (SINGAPORE) PTE. LTD.
as Guarantors
as Guarantors
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
as Initial Lenders
and
CITICORP INTERNATIONAL LIMITED
as Administrative Agent
as Administrative Agent
and
BARCLAYS CAPITAL
as Syndication Agent
as Syndication Agent
CITIGROUP GLOBAL MARKETS INC.
and
BARCLAYS CAPITAL
and
BARCLAYS CAPITAL
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Page | ||||
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS |
1 | |||
SECTION 1.01. Certain Defined Terms |
1 | |||
SECTION 1.02. Computation of Time Periods |
20 | |||
SECTION 1.03. Accounting Terms |
20 | |||
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT |
20 | |||
SECTION 2.01. The Advances and Letters of Credit |
20 | |||
SECTION 2.02. Making the Advances |
21 | |||
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of
Credit |
22 | |||
SECTION 2.04. Fees |
24 | |||
SECTION 2.05. Termination or Reduction of the Commitments |
24 | |||
SECTION 2.06. Repayment of Advances and Letter of Credit Drawings |
25 | |||
SECTION 2.07. Interest on Advances |
26 | |||
SECTION 2.08. Interest Rate Determination |
26 | |||
SECTION 2.09. Optional Conversion of Advances |
27 | |||
SECTION 2.10. Prepayments of Advances |
28 | |||
SECTION 2.11. Increased Costs |
28 | |||
SECTION 2.12. Illegality |
29 | |||
SECTION 2.13. Payments and Computations |
30 | |||
SECTION 2.14. Taxes |
31 | |||
SECTION 2.15. Sharing of Payments |
34 | |||
SECTION 2.16. Evidence of Debt |
34 | |||
SECTION 2.17. Use of Proceeds |
35 | |||
SECTION 2.18. Increase in the Aggregate Revolving Credit Commitments |
35 | |||
SECTION 2.19. Defaulting Lenders |
36 |
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TABLE OF CONTENTS
(continued)
(continued)
Page | ||||
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING |
38 | |||
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01 |
38 | |||
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance |
40 | |||
SECTION 3.03. Determinations Under Section 3.01 |
40 | |||
SECTION 3.04. Additional Conditions to Issuances |
40 | |||
ARTICLE IV REPRESENTATIONS AND WARRANTIES |
41 | |||
SECTION 4.01. Representations and Warranties of the Loan Parties |
41 | |||
ARTICLE V COVENANTS OF THE LOAN PARTIES |
43 | |||
SECTION 5.01. Affirmative Covenants |
43 | |||
SECTION 5.02. Negative Covenants |
47 | |||
SECTION 5.03. Financial Covenants |
50 | |||
ARTICLE VI EVENTS OF DEFAULT |
51 | |||
SECTION 6.01. Events of Default |
51 | |||
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default |
52 | |||
ARTICLE VII GUARANTY |
53 | |||
SECTION 7.01. Unconditional Guaranty |
53 | |||
SECTION 7.02. Guaranty Absolute |
53 | |||
SECTION 7.03. Waivers and Acknowledgments |
54 | |||
SECTION 7.04. Subrogation |
55 | |||
SECTION 7.05. Continuing Guaranty; Assignments |
56 | |||
SECTION 7.06. Limitation of Guaranty |
56 | |||
ARTICLE VIII THE AGENT |
56 | |||
SECTION 8.01. Authorization and Authority |
56 | |||
SECTION 8.02. Agent Individually |
56 | |||
SECTION 8.03. Duties of Agent; Exculpatory Provisions |
57 | |||
SECTION 8.04. Reliance by Agent |
58 |
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TABLE OF CONTENTS
(continued)
(continued)
Page | ||||
SECTION 8.05. Delegation of Duties |
59 | |||
SECTION 8.06. Resignation of Agent |
59 | |||
SECTION 8.07. Non-Reliance on Agent and Other Lenders |
60 | |||
SECTION 8.08. Indemnification |
60 | |||
SECTION 8.09. Other Agents |
62 | |||
SECTION 8.10. Removal of Agent |
62 | |||
SECTION 8.11. Force Majeure |
62 | |||
ARTICLE IX MISCELLANEOUS |
62 | |||
SECTION 9.01. Amendments |
62 | |||
SECTION 9.02. Notices |
63 | |||
SECTION 9.03. No Waiver; Remedies |
65 | |||
SECTION 9.04. Costs and Expenses |
65 | |||
SECTION 9.05. Right of Set-off |
66 | |||
SECTION 9.06. Binding Effect |
67 | |||
SECTION 9.07. Assignments and Participations |
67 | |||
SECTION 9.08. Confidentiality |
70 | |||
SECTION 9.09. Treatment of Information |
71 | |||
SECTION 9.10. Governing Law |
72 | |||
SECTION 9.11. Execution in Counterparts |
72 | |||
SECTION 9.12. Judgment |
72 | |||
SECTION 9.13. Jurisdiction |
73 | |||
SECTION 9.14. No Liability of the Issuing Banks |
74 | |||
SECTION 9.15. Patriot Act Notice; Know-Your Customer; Anti-Money Laundering |
74 | |||
SECTION 9.16. Replacement of Lenders |
75 |
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TABLE OF CONTENTS
(continued)
(continued)
Page | ||||
SECTION 9.17. Waiver of Jury Trial |
75 |
iv
TABLE OF CONTENTS
Page |
Annexes
Annex A — Agent’s Account
Schedules
Schedule I — List of Applicable Lending Offices
Schedule 5.02(a) — Existing Liens
Schedule 5.02(d) — Existing Debt
Exhibits
Exhibit A — Form of Note
Exhibit B — Form of Notice of Borrowing
Exhibit C — Form of Assignment and Acceptance
Exhibit D — Form of Assumption Agreement
Exhibit E — Form of Increase Notice
Exhibit F — Form of Compliance Certificate
Exhibit G — Opinion of Counsel for the Loan Parties
i
FOUR-YEAR CREDIT AGREEMENT
Dated as of March 31, 2011
AVAGO TECHNOLOGIES FINANCE PTE. LTD. (company registration number 200512223N), a company
incorporated under the Singapore Companies Act (the “Borrower”), AVAGO TECHNOLOGIES HOLDING
PTE. LTD. (company registration number 200512203H), a company incorporated under the Singapore
Companies Act (“Holdings”), AVAGO TECHNOLOGIES INTERNATIONAL SALES PTE. LIMITED (company
registration number 200512231E), a company incorporated under the Singapore Companies Act
(“International Sales”), AVAGO TECHNOLOGIES U.S. INC., a Delaware corporation (“U.S.
Inc.”), AVAGO TECHNOLOGIES GENERAL IP (SINGAPORE) PTE. LTD. (company registration number
200512430D), a company incorporated under the Singapore Companies Act (“General IP” and,
together with Holdings, International Sales and U.S. Inc., the “Guarantors”), the banks,
financial institutions and other institutional lenders (the “Initial Lenders”) and issuers
of letters of credit (“Initial Issuing Banks”) listed on Schedule I hereto, BARCLAYS
CAPITAL, the investment banking division of Barclays Bank PLC, as syndication agent, CITIGROUP
GLOBAL MARKETS INC. and BARCLAYS CAPITAL, as joint lead arrangers and joint bookrunners (each an
“Arranger” and collectively the “Arrangers”) and CITICORP INTERNATIONAL LIMITED
(“Citi International”), as administrative agent (the “Agent”) for the Lenders (as
hereinafter defined), agree as follows:
PRELIMINARY STATEMENT.
The Borrower is one of the borrowers under the Existing Credit Agreement (as hereinafter
defined) and the Lenders hereunder have agreed to extend certain revolving credit facilities to the
Borrower, in an aggregate principal amount not to exceed $200,000,000, the proceeds of which will
be used to repay in full all outstanding amounts under the Existing Credit Agreement, if any, and
following the Effective Date, for general corporate purposes (including permitted acquisitions,
investments and commercial paper backstop) of the Borrower and its Subsidiaries.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
“Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Agent.
“Advance” means a Revolving Credit Advance.
“Affiliate” means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such Person or is a
director or officer of such Person. For purposes of this definition, the term “control”
(including the terms “controlling”, “controlled by” and “under common control with”) of a
Person means the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such Person, whether through the ownership of
Voting Stock, by contract or otherwise.
Avago Credit Agreement
“Agent’s Account” means (a) the account of the Agent set forth on Annex A
hereto and (b) such other account of the Agent as is designated in writing from time to time
by the Agent to the Borrower and the Lenders for such purpose.
“Agreement” means this Credit Agreement.
“Alternate Currency” means Yen, Euros or any other lawful currency as may be
agreed between the applicable Issuing Bank and the Borrower.
“Applicable Lending Office” means, with respect to each Lender, such Lender’s
Base Rate Lending Office in the case of a Base Rate Advance and such Lender’s Eurocurrency
Lending Office in the case of a Eurocurrency Rate Advance.
“Applicable Margin” means as of any date, a percentage per annum determined by
reference to the Public Debt Rating in effect on such date as set forth below:
Public Debt Rating | Applicable Margin for | Applicable Margin for | ||||||
S&P/Xxxxx’x | Eurocurrency Rate Advances | Base Rate Advances | ||||||
Level 1 BBB or Baa2 or above |
1.75 | % | 0.75 | % | ||||
Xxxxx 0 XXX- xx Xxx0 |
2.00 | % | 1.00 | % | ||||
Xxxxx 0 BB+ or Ba1 |
2.25 | % | 1.25 | % | ||||
Level 4 BB or Ba2 or lower, or no rating available |
3.00 | % | 2.00 | % |
“Applicable Percentage” means, as of any date a percentage per annum determined
by reference to the Public Debt Rating in effect on such date as set forth below:
Public Debt Rating | Applicable | |||
S&P/Xxxxx’x | Percentage | |||
Level 1 BBB or Baa2 or above |
0.30 | % | ||
Xxxxx 0 XXX- xx Xxx0 |
0.35 | % | ||
Xxxxx 0 BB+ or Ba1 |
0.50 | % | ||
Level 4 BB or Ba2 or lower, or no rating available |
0.625 | % |
“Approved Electronic Communications” means each Communication that any Person
is obligated to, or otherwise chooses to, provide to the Agent pursuant to any Loan Document
or the transactions contemplated therein, including any financial statement, financial and
other report, notice, request, certificate and other information material; provided,
however, that, solely with respect to delivery of any such Communication by any Person to
the Agent and without limiting or otherwise affecting either the Agent’s right to effect
delivery of such Communication by posting such Communication to the Approved Electronic
Platform or the protections afforded hereby to the Agent in connection with any such
posting, “Approved Electronic Communication”
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Avago Credit Agreement
shall exclude (i) any notice of borrowing, letter of credit request, notice of
conversion or continuation, and any other notice, demand, communication, information,
document and other material relating to a request for a new, or a conversion of an existing,
Borrowing, (ii) any notice pursuant to Section 2.10(a) and Section 2.10(b) and any other
notice relating to the payment of any principal or other amount due under any Loan Document
prior to the scheduled date therefor, (iii) all notices of any Default or Event of Default
and (iv) any notice, demand, communication, information, document and other material
required to be delivered to satisfy any of the conditions set forth in Article III or any
other condition to any Borrowing or other extension of credit hereunder or any condition
precedent to the effectiveness of this Agreement.
“Approved Electronic Platform” has the meaning specified in Section 9.02(d).
“Arrangers” has the meaning specified in the preamble hereto.
“Assignment and Acceptance” means an assignment and acceptance entered into by
a Lender and an Eligible Assignee, and accepted by the Agent, in substantially the form of
Exhibit C hereto.
“Assuming Lender” has the meaning specified in Section 2.18(d).
“Assumption Agreement” means an assumption agreement in substantially the form
of Exhibit D hereto.
“Available Amount” of any Letter of Credit means, at any time, the maximum
amount available to be drawn under such Letter of Credit at such time (assuming compliance
at such time with all conditions to drawing).
“Bankruptcy Law” means any law or proceeding of the type referred to in Section
6.01(e) or Title 11, U.S. Code, or any similar foreign, federal, state or provincial law for
the relief of debtors.
“Base Rate” means a fluctuating interest rate per annum in effect from time to
time, which rate per annum shall at all times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank in New York, New York,
from time to time, as Citibank’s base rate;
(b) 1/2 of one percent per annum above the Federal Funds Rate; and
(c) the British Bankers Association Interest Settlement Rate applicable to
Dollars for a period of one month (“One Month LIBOR”) plus 1.00% (for the
avoidance of doubt, the One Month LIBOR for any day shall be based on the rate
appearing on Reuters LIBOR01 Page (or other commercially available source providing
such quotations as designated by the Agent from time to time) at approximately 11:00
a.m. London time on such day).
“Base Rate Advance” means an Advance that bears interest as provided in Section
2.07(a)(i).
“Base Rate Lending Office” means, with respect to any Lender, the office of
such Lender specified as its “Base Rate Lending Office” opposite its name on Schedule I
hereto or in the
3
Avago Credit Agreement
Assumption Agreement or the Assignment and Acceptance pursuant to which it became a
Lender, or such other office of such Lender as such Lender may from time to time specify to
the Borrower and the Agent.
“Borrower” has the meaning specified in the preamble hereto.
“Borrowing” means a borrowing consisting of simultaneous Revolving Credit
Advances of the same Type made by each of the Lenders pursuant to Section 2.01(a).
“Borrowing Minimum” means $5,000,000.
“Borrowing Multiple” means $1,000,000.
“Business Day” means a day of the year on which banks are not required or
authorized by law to close in New York City, Singapore or Hong Kong and, if the applicable
Business Day relates to any Eurocurrency Rate Advances, on which dealings are carried on in
the London interbank market and banks are open for business in London and in the country of
issue of the currency of such Eurocurrency Rate Advance.
“Cash Collateralize” means, in respect of an obligation, provide and pledge (as
a first priority perfected security interest) cash collateral in Dollars, at a location and
pursuant to documentation in form and substance satisfactory to the Agent and the Issuing
Bank (and “Cash Collateralization” has a corresponding meaning).
“Change of Control” shall mean and be deemed to have occurred if (i) any Person
or two or more Persons acting in concert shall acquire beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Stock of Parent (or other
securities convertible into such Voting Stock) representing 50% or more of the combined
voting power of all Voting Stock of Parent; (ii) Parent shall cease to own and control all
of the Voting Stock of Holdings, (iii) Holdings shall cease to own and control all of the
Voting Stock of the Borrower or (iv) during any period of up to 12 consecutive months,
commencing on or after the date of this Agreement, individuals who at the beginning of such
period were directors of Parent shall cease for any reason (other than due to death or
disability) to constitute a majority of the board of directors of Parent (except to the
extent that such individuals were replaced by individuals (x) elected by a majority of the
remaining members of the board of directors of Parent or (y) nominated for election by a
majority of the remaining members of the board of directors of Parent and thereafter elected
as directors by the shareholders of Parent.
“Citi International” has the meaning specified in the preamble hereto.
“Citibank” means Citibank, N.A.
“Commitment” means a Revolving Credit Commitment or a Letter of Credit
Commitment.
“Commitment Date” has the meaning specified in Section 2.18(b).
“Commitment Increase” has the meaning specified in Section 2.18(a).
4
Avago Credit Agreement
“Communications” means each notice, demand, communication, information,
document and other material provided for hereunder or under any other Loan Document or
otherwise transmitted between the parties hereto relating this Agreement, the other Loan
Documents, any Loan Party or its Affiliates, or the transactions contemplated by this
Agreement or the other Loan Documents including, without limitation, all Approved Electronic
Communications.
“Company Information” has the meaning specified in Section 9.08.
“Compliance Certificate” means a certificate in the form of Exhibit F hereto.
“Consolidated” refers to the consolidation of accounts in accordance with GAAP.
“Consolidated Debt for Borrowed Money” of any Person means all items that, in
accordance with GAAP, would be classified as indebtedness on a Consolidated balance sheet of
such Person, or as Guaranteed Debt of such Person of items of another person that, in
accordance with GAAP, would be classified as indebtedness on a Consolidated balance sheet of
such Person.
“Consolidated Debt to EBITDA Ratio” means, on any date of determination, the
ratio of (i) Consolidated Debt for Borrowed Money of the Borrower and its Consolidated
Subsidiaries, as of such date, to (ii) Consolidated EBITDA of the Borrower and its
Consolidated Subsidiaries for the period of four fiscal quarters most recently ended.
“Consolidated Interest Expense” means, for any period, for any Person, all
items that, in accordance with GAAP, would be classified as interest expense on a
Consolidated statement of income of such Person for such period.
“Convert”, “Conversion” and “Converted” each refers to a
conversion of Revolving Credit Advances of one Type into Revolving Credit Advances of the
other Type pursuant to Section 2.08 or 2.09.
“Debt” of any Person means, without duplication, (a) all indebtedness of such
Person for borrowed money, (b) all obligations of such Person for the deferred purchase
price of property or services (other than trade payables incurred in the ordinary course of
such Person’s business and monetary obligations arising under supply or consignment
agreements not overdue by more than 90 days or are being contested in good faith by
appropriate proceedings and for which reasonable reserves are being maintained), (c) all
obligations of such Person evidenced by notes, bonds, debentures or other similar
instruments (excluding undrawn amounts), (d) all obligations of such Person created or
arising under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession or sale of
such property), (e) all obligations of such Person as lessee under leases that have been or
should be, in accordance with GAAP as in effect on the date hereof, recorded as capital
leases, (f) all obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit, bank guarantees, surety bonds or similar extensions of
credit, (g) all payments that such Person would have to make in the event of an early
termination on the date Indebtedness of such Person is being determined in respect of Hedge
Agreements of such Person, (h) all liability under any synthetic lease or tax ownership
operating lease, (i) all Debt of others referred to in clauses (a) through (h) above or
clause (j) below (collectively, “Guaranteed Debt”) guaranteed directly or indirectly
in any manner by such Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (1) to pay or purchase such Guaranteed Debt or to advance or supply
funds for the payment or purchase of such Guaranteed Debt, (2) to purchase, sell or lease
5
Avago Credit Agreement
(as lessee or lessor) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Guaranteed Debt or to assure the
holder of such Guaranteed Debt against loss, (3) to supply funds to or in any other manner
invest in the debtor (including any agreement to pay for property or services irrespective
of whether such property is received or such services are rendered) or (4) otherwise to
assure a creditor against loss, and (j) all Debt referred to in clauses (a) through (i)
above (including Guaranteed Debt) secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any Lien on property (including,
without limitation, accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Debt.
“Default” means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or both.
“Default Interest” has the meaning specified in Section 2.07(b).
“Defaulting Lender” means at any time, subject to Section 2.19(e), (i) any
Lender that has failed for two or more Business Days to comply with its obligations under
this Agreement to make an Advance, make a payment to any Issuing Bank in respect of a Letter
of Credit payment, or make any other payment due hereunder (each, a “funding obligation”),
unless such Lender has notified the Agent and the Borrower in writing that such failure is
the result of such Lender’s determination that one or more conditions precedent to funding
has not been satisfied (which conditions precedent, together with the applicable default, if
any, will be specifically identified in such writing), (ii) any Lender that has notified the
Agent, the Borrower or any Issuing Bank in writing, or has stated publicly, that it does not
intend to comply with its funding obligations hereunder, unless such writing or statement
states that such position is based on such Lender’s determination that one or more
conditions precedent to funding cannot be satisfied (which conditions precedent, together
with the applicable default, if any, will be specifically identified in such writing or
public statement), (iii) any Lender that has notified the Agent, the Borrower or any Issuing
Bank in writing, or has stated publicly, that it has defaulted on its funding obligations
under any other loan agreement or credit agreement or other financing agreement, unless such
writing or statement states that such position is based on such Lender’s determination that
one or more conditions precedent to funding cannot be satisfied (which conditions precedent,
together with the applicable default, if any, will be specifically identified in such
writing or public statement), (iv) any Lender that has, for three or more Business Days
after written request of the Agent or the Borrower, failed to confirm in writing to the
Agent and the Borrower that it will comply with its prospective funding obligations
hereunder (provided that such Lender will cease to be a Defaulting Lender pursuant to this
clause (iv) upon the Agent’s and the Borrower’s receipt of such written confirmation), or
(v) any Lender with respect to which a Lender Insolvency Event has occurred and is
continuing with respect to such Lender or its Parent Company (provided, in each case, that
neither the reallocation of funding obligations provided for in Section 2.19(b) as a result
of a Lender’s being a Defaulting Lender nor the performance by Non-Defaulting Lenders of
such reallocated funding obligations will by themselves cause the relevant Defaulting Lender
to become a Non-Defaulting Lender). Any determination by the Agent that a Lender is a
Defaulting Lender under any of clauses (i) through (v) above will be conclusive and binding
absent manifest error, and such Lender will be deemed to be a Defaulting Lender (subject to
Section 2.19(e)) upon notification of such determination by the Agent to the Borrower, the
Issuing Banks and the Lenders.
“Dollar Equivalent” shall mean on any date of determination, (a) with respect
to any amount denominated in Dollars, such amount, and (b) with respect to any amount
denominated in
6
Avago Credit Agreement
any Alternate Currency, the equivalent in Dollars of such amount, determined by the
Agent using the applicable Exchange Rate.
“Dollars” and the “$” sign each means lawful currency of the United
States of America.
“EBITDA” means, for any period, net income (or net loss) plus the sum
(without duplication) of (a) interest expense, (b) income tax expense, (c) depreciation
expense, (d) amortization expense, (e) to the extent included in net income, non-cash
non-recurring charges (provided that if any non-cash charges referred to in this
clause (e) represent an accrual or reserve for potential cash items in any future period,
the cash payment in respect thereof in such future period shall be subtracted from EBITDA to
such extent, and excluding amortization of a prepaid cash item that was paid in a prior
period), (f) to the extent included in net income, non-cash, recurring charges related to
equity compensation, (g) any deductions attributable to minority interests, (h)
restructuring charges or reserves (including any one time costs incurred in connection with
acquisitions after the Effective Date and closures and/or consolidation of facilities) in an
amount not to exceed $8,000,000 for any fiscal year and (i) all other non-cash charges for
such period less to the extent included in net income, (j) non-cash gains and (k)
any net after-tax income from the early extinguishment of Debt or hedging obligations or
other derivative instruments; provided, that for purposes of calculating EBITDA for
the Borrower and its Subsidiaries for any period, the EBITDA of any Person (or assets or
division of such Person) acquired by the Borrower or any of its Subsidiaries during such
period shall be included on a pro forma basis for such period (assuming the consummation of
such acquisition occurred on the first day of such period).
“Effective Date” has the meaning specified in Section 3.01.
“Eligible Assignee” means (i) a Lender; (ii) an Affiliate of a Lender; (iii)
any other financial institution approved by the Agent, each Issuing Bank and, unless an
Event of Default under Section 6.01(a) or (e) has occurred and is continuing at the time any
assignment is effected in accordance with Section 9.07, the Borrower, such approvals not to
be unreasonably withheld or delayed; and (iv) any other Person approved by the Agent, each
Issuing Bank and the Borrower, such approvals not to be unreasonably withheld or delayed, it
being acknowledged and agreed by the Borrower that the Borrower shall be deemed to have
consented to any such assignment under clauses (iii) or (iv) unless it shall object thereto
by written notice to the Agent within 5 Business Days after having received notice thereof;
provided, however, that none of the Borrower, any Affiliate of the Borrower
or a natural person shall qualify as an Eligible Assignee.
“Environmental Action” means (a) any notice of non-compliance or violation,
notice of liability or potential liability, proceeding, consent order or consent agreement
by any governmental or regulatory authority with jurisdiction or (b) any litigation, case,
suit, demand, demand letter or claim by any governmental or regulatory authority or any
third party relating in any way to any Environmental Law, Environmental Permit or Hazardous
Materials, including, without limitation, (x) by any governmental or regulatory authority
for enforcement, cleanup, removal, response, remedial or other actions or damages and (y) by
any governmental or regulatory authority or any such third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
“Environmental Law” means any federal, state, local or foreign statute, law,
ordinance, rule, regulation, code, order, judgment, decree or judicial or agency
interpretation, policy or guidance relating to pollution or protection of the environment,
natural resources or human health and safety, including, without limitation, those relating
to the use, handling, transportation,
7
Avago Credit Agreement
treatment, storage, disposal, release or discharge of Hazardous Materials, to the
extent applicable to the Borrower or any of its Subsidiaries or any of their operations.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the applicable regulations thereunder.
“ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a
member of Holdings’ controlled group, or under common control with Holdings, within the
meaning of Section 414 of the Internal Revenue Code.
“ERISA Event” means (a) (i) the occurrence of a reportable event, within the
meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived under the applicable regulation, or
(ii) the requirements of subsection (1) of Section 4043(b) of ERISA (without regard to
subsection (2) of such Section) are met with respect to a contributing sponsor, as defined
in Section 4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9), (10),
(11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect
to such Plan within the following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of
intent to terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including any such
notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the
cessation of operations at a facility of Holdings or any ERISA Affiliate in the
circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by Holdings or any
ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for the
imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any
Plan; (g) any Multiemployer Plan is insolvent or in reorganization; (h) any Plan has an
accumulated or waived funding deficiency; (i) any of Holdings, the Borrower, any Subsidiary
or any ERISA Affiliate has incurred any liability under Title IV of ERISA (other than
premiums due to the PBGC) to or on account of a Plan or Multiemployer Plan or (g) the
institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the appointment of a trustee to administer, a
Plan.
“Euro” and the sign “€” each mean the lawful money of the member states
of the European Union.
“Eurocurrency Lending Office” means, with respect to any Lender, the office of
such Lender specified as its “Eurocurrency Lending Office” opposite its name on Schedule I
hereto or in the Assumption Agreement or the Assignment and Acceptance pursuant to which it
became a Lender (or, if no such office is specified, its Base Rate Lending Office), or such
other office of such Lender as such Lender may from time to time specify to the Borrower and
the Agent.
“Eurocurrency Liabilities” has the meaning assigned to that term in Regulation
D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
“Eurocurrency Rate” means, for any Interest Period for each Eurocurrency Rate
Advance comprising part of the same Borrowing, an interest rate per annum equal to the rate
per annum obtained by dividing (a) the rate per annum (rounded upward to the nearest whole
multiple of 1/100 of 1% per annum) appearing on Reuters LIBOR01 Page (or any successor page)
as the London interbank offered rate for deposits in Dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest Period for a term
comparable to such
8
Avago Credit Agreement
Interest Period or, if for any reason such rate is not available, the average (rounded
upward to the nearest whole multiple of 1/100 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in Dollars is offered by the principal
office of each of the Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference Bank’s Eurocurrency Rate
Advance comprising part of such Borrowing to be outstanding during such Interest Period and
for a period equal to such Interest Period by (b) a percentage equal to 100% minus the
Eurocurrency Rate Reserve Percentage for such Interest Period. If the Reuters LIBOR01 Page
(or any successor page) is unavailable, the Eurocurrency Rate for any Interest Period for
each Eurocurrency Rate Advance comprising part of the same Borrowing shall be determined by
the Agent on the basis of applicable rates furnished to and received by the Agent from the
Reference Banks two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.08.
“Eurocurrency Rate Advance” means a Revolving Credit Advance that bears
interest as provided in Section 2.07(a)(ii).
“Eurocurrency Rate Reserve Percentage” for any Interest Period for all
Eurocurrency Rate Advances comprising part of the same Borrowing means the reserve
percentage applicable two Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve requirement) for a member
bank of the Federal Reserve System in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to any other category
of liabilities that includes deposits by reference to which the interest rate on
Eurocurrency Rate Advances is determined) having a term equal to such Interest Period.
“Events of Default” has the meaning specified in Section 6.01.
“Exchange Rate” shall mean on any day with respect to any Foreign Currency, the
rate at which such Foreign Currency may be exchanged into Dollars, as set forth at
approximately 11:00 a.m. (Hong Kong time) as of three Business Days prior to the date such
determination is made on the Reuters Page “AFX =”; provided that, in the event that
such rate does not appear on any Reuters World Currency Page, the Exchange Rate shall be
determined by reference to such other publicly available service for displaying exchange
rates as may be agreed upon by the Agent and the Borrower, or, in the absence of such
agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of
exchange of the Agent in the market where its foreign currency exchange operations in
respect of such Foreign Currency are then being conducted, at or about 11:00 a.m. (Hong Kong
time) on such date for the purchase of Dollars for delivery two Business Days later.
“Excluded Taxes” shall mean, with respect to any Lender or the Agent: (a) (i)
taxes imposed on its overall net income (including branch profits taxes), 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 Lender or the Agent (as the case may be)
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, and (ii) any taxes imposed on it as a result
of any current or former connection between such Lender or the Agent (as the case may be)
and the jurisdiction of the governmental authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than
9
Avago Credit Agreement
any such connection arising
from such Lender or the Agent having executed, delivered or
performed its obligations or received a payment under, received or perfected a security
interest under, or engaged in any other transaction pursuant to, or having been a party to
or having enforced, sold or assigned an interest in, this Agreement or any other Loan
Document); (b) any backup withholding tax that is required by the Internal Revenue Code to
be withheld from amounts payable to a Lender that has failed to comply with Section
2.14(e)(ii); (c) in the case of a Non-U.S. Lender, (i) any U.S. federal withholding tax that
is imposed on amounts payable to such Non-U.S. Lender under the laws in effect at the time
such Non-U.S. Lender becomes a party to this Agreement (or, in the case of a participant
that would qualify as a Non-U.S. Lender if it were a Lender, on the date such participant
became a participant hereunder), provided that this clause (c)(i) shall not apply to the
extent that (x) the indemnity payments or additional amounts any Lender (or participant)
would be entitled to receive (without regard to this clause (c)(i)) do not exceed the
indemnity payment or additional amounts that the person making the assignment, participation
or transfer to such Lender (or participant) would have been entitled to receive in the
absence of such assignment, participation or transfer or (y) any Tax is imposed on a Lender
in connection with an interest or participation in any Note or other obligation that such
Lender acquired pursuant to Section 9.16 of this Agreement (it being understood and agreed,
for the avoidance of doubt, that any withholding tax imposed on a Non-U.S. Lender as a
result of a change in law occurring after the time such Non-U.S. Lender became a party to
this Agreement (or designates a new lending office) shall not be an Excluded Tax) or (ii)
any Tax to the extent attributable to such Non-U.S. Lender’s failure to comply with Section
2.14(e)(iii); and (d) any Taxes imposed on such recipient by reason of FATCA.
“Existing Credit Agreement” means that certain Credit Agreement, dated as of
December 1, 2005 (as amended, supplemented or otherwise modified from time to time) among
the Borrower, Holdings, Avago Technologies Finance S.à.x.x., Avago Technologies (Malaysia)
Sdn. Bhd. (f/k/a Jumbo Portfolio Sdn. Bhd.), Avago Technologies Wireless (U.S.A.)
Manufacturing Inc., U.S. Inc., the lenders party thereto, Citi International, as Asian
administrative agent and Citicorp North America, Inc., as tranche B term loan administrative
agent and collateral agent.
“Existing Debt” has the meaning specified in Section 5.02(d)(ii).
“Facility” means the Revolving Credit Facility or the Letter of Credit
Facility.
“FATCA” means Sections 1471 though 1474 of the Internal Revenue Code, as in
effect on the date hereof, including any amendments made thereto after the date of this
Agreement, and any current or future regulations or official interpretations thereof.
“Federal Funds Rate” means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is not a Business Day, for
the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate
is not so published for any day that is a Business Day, the average of the quotations for
such day on such transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
“Foreign Currencies” shall mean any currency other than U.S. Dollars.
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Avago Credit Agreement
“Foreign Plan” shall mean any employee benefit plan, program, policy,
arrangement or agreement maintained or contributed to by the Borrower or any of its
Subsidiaries with respect to employees employed outside the United States.
“GAAP” has the meaning specified in Section 1.03.
“General IP” has the meaning specified in the preamble hereto.
“Guaranteed Debt” has the meaning specified in the definition of “Debt”.
“Guarantors” has the meaning specified in the preamble hereto.
“Guaranty” means the guaranty of each Guarantor set forth in Article VII.
“Hazardous Materials” means (a) petroleum and petroleum products, byproducts or
breakdown products, radioactive materials, asbestos-containing materials, polychlorinated
biphenyls and radon gas and (b) any other chemicals, materials or substances designated,
classified or regulated as “hazardous” or “toxic” or as a “pollutant” or “contaminant” or
words of similar meaning or effect under any Environmental Law.
“Hedge Agreements” means interest rate swap, cap or collar agreements, interest
rate future or option contracts, currency swap agreements, currency future or option
contracts, commodity price protection agreements or other commodity price hedging
agreements, and other similar agreements.
“Historical Financial Statements” means the Consolidated balance sheet of the
Borrower and its Subsidiaries as at October 31, 2010, and the related Consolidated
statements of income and cash flows of the Borrower and its Subsidiaries for the fiscal year
then ended, accompanied by an opinion of Pricewaterhouse Coopers, LLP independent certified
public accountants.
“Holdings” has the meaning specified in the preamble hereto.
“Immaterial Subsidiary” means, at any time, any Subsidiary of the Borrower
(other than a Loan Party) having (a) Consolidated assets with a value of less than 5% of the
total value of the Consolidated assets of the Borrower and its Subsidiaries, taken as a
whole; provided that the Consolidated assets of all Immaterial Subsidiaries shall
not exceed 10% of the total value of the Consolidated assets of the Borrower and its
Subsidiaries, taken as a whole, and (b) Consolidated revenues of less than 5% of the
Consolidated revenues of the Borrower and its Subsidiaries, taken as a whole;
provided that the Consolidated revenues of all Immaterial Subsidiaries shall not
exceed 10% of the Consolidated revenues of the Borrower and its Subsidiaries, taken as a
whole, in each case, as of the most recent fiscal quarter end for which financial statements
of the Borrower are delivered pursuant to Section 5.01(j) hereof.
“Increase Date” has the meaning specified in Section 2.18(a).
“Increase Notice” means a notice in substantially the form of Exhibit E hereto.
“Increasing Lender” has the meaning specified in Section 2.18(b).
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Avago Credit Agreement
“Indemnified Taxes” means all Taxes (other than Excluded Taxes) and Other
Taxes. For the avoidance of doubt, Indemnified Taxes include Taxes imposed under Sections 45
and 45A of the Income Tax Act (Chapter 134) of Singapore.
“Information Memorandum” means the information memorandum dated January 26,
2011 used in connection with the syndication of the Commitments.
“Initial GAAP” has the meaning specified in Section 1.03.
“Initial Issuing Bank” has the meaning specified in the preamble hereto.
“Interest Period” means, for each Eurocurrency Rate Advance comprising part of
the same Borrowing, the period commencing on the date of such Eurocurrency Rate Advance or
the date of the Conversion of any Base Rate Advance into such Eurocurrency Rate Advance and
ending on the last day of the period selected by the Borrower requesting such Borrowing
pursuant to the provisions below and, thereafter, each subsequent period commencing on the
last day of the immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, and subject to clause (c) of this
definition, nine or twelve months, as the Borrower may, upon notice received by the Agent
not later than 10:00 A.M. (Hong Kong time) on the third Business Day prior to the first day
of such Interest Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period with respect to any
Eurocurrency Rate Borrowing that ends after the Termination Date;
(b) Interest Periods commencing on the same date for Eurocurrency Rate Advances
comprising part of the same Borrowing shall be of the same duration;
(c) the Borrower shall not be entitled to select an Interest Period having a
duration of nine or twelve months unless, by 2:00 P.M. (Hong Kong time) on the third
Business Day prior to the first day of such Interest Period, each Lender notifies
the Agent that such Lender will be providing funding for such Borrowing with such
Interest Period (the failure of any Lender to so respond by such time being deemed
for all purposes of this Agreement as an objection by such Lender to the requested
duration of such Interest Period); provided that, if any or all of the Lenders
object to the requested duration of such Interest Period, the duration of the
Interest Period for such Borrowing shall be one, two, three or six months, as
specified by the Borrower requesting such Borrowing in the applicable Notice of
Borrowing as the desired alternative to an Interest Period of nine or twelve months;
(d) whenever the last day of any Interest Period would otherwise occur on a day
other than a Business Day, the last day of such Interest Period shall be extended to
occur on the next succeeding Business Day, provided, however, that,
if such extension would cause the last day of such Interest Period of one, two,
three, six, nine or twelve months to occur in the next following calendar month, the
last day of such Interest Period shall occur on the next preceding Business Day;
(e) whenever the first day of any Interest Period of one, two, three, six, nine
or twelve months occurs on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that succeeds such initial
calendar
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Avago Credit Agreement
month by the number of months equal to the number of months in such
Interest Period, such Interest Period shall end on the last Business Day of such
succeeding calendar month; and
(f) whenever the first day of any Interest Period of one, two, three, six, nine
or twelve months occurs on the last Business Day of a calendar month, such Interest
Period shall end on the last Business Day of the calendar month that succeeds such
initial
calendar month by the number of months equal to the number of months in such
Interest Period.
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued thereunder.
“International Sales” has the meaning specified in the preamble hereto.
“Issuance” with respect to any Letter of Credit means the issuance, amendment,
renewal or extension of such Letter of Credit.
“Issuing Bank” means an Initial Issuing Bank or any other Lender that expressly
agrees to perform in accordance with their terms all of the obligations that by the terms of
this Agreement are required to be performed by it as an Issuing Bank.
“KKR” means each of Kolhberg Kravis Xxxxxxx & Co., L.P. and KKR Associates,
L.P. and their Affiliates, collectively.
“L/C Cash Deposit Account” means an interest bearing cash deposit account to be
established and maintained by the Agent, over which the Agent shall have sole dominion and
control, upon terms as may be satisfactory to the Agent and the Issuing Banks.
“L/C Exposure” means as to any Lender, at any time, such Lender’s participation
in, and obligation to reimburse the applicable Issuing Bank for drawings made under, each
Letter of Credit outstanding at such time pursuant to Section 2.03(b).
“L/C Related Documents” has the meaning specified in Section 2.06(b)(i).
“Lender Insolvency Event” means that (i) a Lender or its Parent Company is
insolvent, or is generally unable to pay its debts as they become due, or admits in writing
its inability to pay its debts as they become due, or makes a general assignment for the
benefit of its creditors, or (ii) such Lender or its Parent Company is the subject of a
bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver,
trustee, conservator, intervenor or sequestrator or the like has been appointed for such
Lender or its Parent Company, or such Lender or its Parent Company has taken any action in
furtherance of or indicating its consent to or acquiescence in any such proceeding or
appointment; provided, that a Lender Insolvency Event shall not result solely by
virtue of any ownership interest, or the acquisition of any ownership interest, in such
Lender or its Parent Company by a governmental authority or instrumentality thereof, so long
as such ownership interest does not (i) result in or provide such Lender or its Parent
Company with immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such Lender or its
Parent Company (or such governmental authority or instrumentality) to reject, repudiate,
disavow or disaffirm any contracts or agreements made by such Person and (ii) prohibit such
Lender from performing its obligations under this Agreement.
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Avago Credit Agreement
“Lenders” means each Initial Lender, each Issuing Bank, each Assuming Lender
that shall become a party hereto pursuant to Section 2.18 and each Person that shall become
a party hereto pursuant to Section 9.07.
“Letter of Credit” has the meaning specified in Section 2.01(b).
“Letter of Credit Agreement” has the meaning specified in Section 2.03(a).
“Letter of Credit Commitment” means as to any Lender (a) the Dollar amount set
forth opposite such Lender’s name on Schedule I hereto as such Lender’s “Letter of Credit
Commitment” or (b) if such Lender has entered into an Assignment and Acceptance, the Dollar
amount set forth for such Lender in the Register maintained by the Agent pursuant to Section
9.07(d) as such Lender’s “Letter of Credit Commitment”, as such amount may be reduced
pursuant to Section 2.05.
“Letter of Credit Facility” means, at any time, an amount equal to the lesser
of (a) $40,000,000 and (b) the aggregate amount of the Revolving Credit Commitments.
“Lien” means any lien, security interest or other charge or encumbrance of any
kind, or any other type of preferential arrangement, including, without limitation, the lien
or retained security title of a conditional vendor and any easement, right of way or other
encumbrance on title to real property.
“Loan Documents” means this Agreement, the Notes and each Letter of Credit.
“Loan Parties” means, collectively, the Borrower and each Guarantor.
“Material Adverse Change” means any material adverse change in the business,
financial condition or operations of Holdings and its Subsidiaries taken as a whole.
“Material Adverse Effect” means a material adverse effect on (a) the business,
financial condition or operations of Holdings, the Borrower and their Subsidiaries taken as
a whole, (b) the rights and remedies available to the Lenders under this Agreement or any
Note or (c) the ability of the Borrower to perform its obligations under this Agreement or
any other Loan Document.
“Moody’s” means Xxxxx’x Investors Service, Inc.
“Multiemployer Plan” means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which Holdings or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
“Multiple Employer Plan” means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of Holdings or any ERISA
Affiliate and at least one Person other than Holdings and the ERISA Affiliates or (b) was so
maintained and in respect of which Holdings or any ERISA Affiliate could have liability
under Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
“Non-Defaulting Lender” means, at any time, a Lender that is not a Defaulting
Lender nor a Potential Defaulting Lender.
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Avago Credit Agreement
“Non-U.S. Lender” means any Lender that is not a “United States person” within
the meaning of Section 7701(a)(30) of the Internal Revenue Code.
“Non-U.S. Loan Party” means each Loan Party that is not organized under the
laws of the United States of America or any state thereof or the District of Columbia.
“Note” means a promissory note of the Borrower payable to the order of a
Lender, delivered pursuant to a request made under Section 2.16 in substantially the form of
Exhibit A hereto, evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Advances made by such Lender.
“Notice of Issuance” has the meaning specified in Section 2.03(a).
“Notice of Borrowing” has the meaning specified in Section 2.02(a).
“Obligations” has the meaning specified in Section 7.01.
“Other Taxes” has the meaning specified in Section 2.14(b).
“Participant Register” has the meaning specified in Section 9.07(e).
“Parent” means Avago Technologies Limited, a company incorporated under the
Singapore Companies Act.
“Parent Company” means, with respect to a Lender, the bank holding company (as
defined in Federal Reserve Board Regulation Y), if any, of such Lender, and/or any Person
owning, beneficially or of record, directly or indirectly, a majority of the shares of such
Lender.
“Patriot Act” means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56,
signed into law October 26, 2001.
“PBGC” means the Pension Benefit Guaranty Corporation (or any successor).
“Permitted Liens” means: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under Section 5.01(b) hereof; (b)
Liens imposed by law (and ordinary course of business contractual Liens in respect of such
Liens), such as materialmen’s, mechanics’, carriers’, workmen’s, repairmen’s and landlord’s
Liens and other similar Liens arising in the ordinary course of business securing
obligations that are not overdue for a period of more than 90 days or are being contested in
good faith by appropriate proceedings and for which adequate reserves are being maintained
in accordance with GAAP; (c) pledges or deposits to directly or indirectly secure
obligations under workers’ compensation laws, unemployment insurance laws or similar
legislation or to directly or indirectly secure public or statutory obligations, including
obligations to governmental entities in respect of value added taxes, duties, customs,
excise taxes, franchises, licenses, rents and the like, or surety, customs or appeal bonds;
(d) good faith deposits (or security for obligations in lieu of good faith deposits) to
directly or indirectly secure bids, tenders, contracts or leases for a purpose other than
borrowing money or obtaining credit, including rent or equipment lease security deposits,
(e) easements, rights of way and other encumbrances on title to real property that do not
render title to the property encumbered thereby unmarketable or materially adversely affect
the use of such property for its present purposes, (f) contractual rights of setoff against
(which may include grants
15
Avago Credit Agreement
of Liens) or contractual Liens on, accounts or other property in
transit to or in the possession of or maintained by the lienor, in the absence of any
agreement to maintain a balance or deliver property against which such right may be
exercised, and contractual rights of set-off against claims against the lienor, (g) Liens
pursuant to supply or consignment contracts or otherwise for the receipt of goods or
services, encumbering only the goods covered thereby, where the contracts are not overdue by
more than 90 days or are being contested in good faith by appropriate
proceedings and for which adequate reserves are being maintained in accordance with
GAAP, (h) Liens arising from judgments or decrees in circumstances not constituting an Event
of Default under Section 6.01(f), (i) ground leases in respect of real property on which
facilities owned or leased by the Borrower or any of its Subsidiaries are located that do
not render title to the property encumbered thereby unmarketable or materially adversely
affect the use of such property for its present purposes, (j) liens of a lessor or sublessor
with respect to property under an operating lease and any restriction or encumbrance to
which the interest or title of such lessor or sublessor may be subject that do not render
title to the property encumbered thereby unmarketable or materially adversely affect the use
of such property for its present purposes, and (k) so long as such liens do not secure Debt,
liens arising under standard custodial, bailee or depositary arrangements (including deposit
accounts with banks or other financial institutions).
“Permitted Sale Leaseback” mean any Sale Leaseback consummated by the Borrower
or any Subsidiary after the Effective Date, provided that any such Sale Leaseback not
between a Borrower and any Guarantor or any Guarantor and another Guarantor is consummated
for fair value as determined at the time of consummation in good faith by the Borrower or
such Subsidiary and, in the case of any Sale Leaseback (or series of related Sale
Leasebacks) the aggregate proceeds of which exceed $20,000,000, the board of directors of
the Borrower or such Subsidiary (which such determination may take into account any retained
interest or other investment of the Borrower or such Subsidiary in connection with, and any
other material economic terms of, such Sale Leaseback).
“Person” means an individual, partnership, corporation (including a business
trust), joint stock company, trust, unincorporated association, joint venture, limited
liability company or other entity, or a government or any political subdivision or agency
thereof.
“Plan” means a Single Employer Plan or a Multiple Employer Plan.
“Potential Defaulting Lender” means, at any time, (i) any Lender with respect
to which an event of the kind referred to in the definition of “Lender Insolvency Event” has
occurred and is continuing in respect of any financial institution affiliate of such Lender,
(ii) any Lender that has notified, or whose Parent Company or a financial institution
affiliate thereof has notified, the Agent, the Borrower or the Issuing Banks in writing, or
has stated publicly, that such Parent Company or financial institution affiliate of such
Lender does not intend to comply with its funding obligations under any other loan agreement
or credit agreement or other financing agreement, unless such writing or statement states
that such position is based on such Parent Company or financial institution affiliate of
such Lender’s determination that one or more conditions precedent to funding cannot be
satisfied (which conditions precedent, together with the applicable default, if any, will be
specifically identified in such writing or public statement), or (iii) any Lender that has,
or whose Parent Company has, a non-investment grade rating from Moody’s or S&P or another
nationally recognized rating agency. Any determination by the Agent that a Lender is a
Potential Defaulting Lender under any of clauses (i) through (iii) above will be conclusive
and binding absent manifest error, and such Lender will be deemed a Potential Defaulting
Lender (subject to Section 2.19(e)) upon notification of such determination by the Agent to
the Borrower, the Issuing Banks and the Lenders.
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Avago Credit Agreement
“Proposed Increased Commitment” has the meaning specified in Section 2.18(b).
“Public Debt Rating” means, as of any date, the rating that has been most
recently announced by either S&P or Moody’s, as the case may be, for any class of non-credit
enhanced long-term senior unsecured debt issued by the Borrower or, if no such Debt of the
Borrower is
then outstanding, the corporate credit rating most recently announced by either S&P or
Moody’s, as the case may be, provided, if any such rating agency shall have issued more than
one such rating, the lowest such rating issued by such rating agency. For purposes of the
foregoing, (a) if only one of S&P and Moody’s shall have in effect a Public Debt Rating, the
Applicable Margin and the Applicable Percentage shall be determined by reference to the
available rating; (b) if neither S&P nor Moody’s shall have in effect a Public Debt Rating,
the Applicable Margin and the Applicable Percentage will be set in accordance with Level 4
under the definition of “Applicable Margin” or “Applicable Percentage”, as
the case may be; (c) if the ratings established by S&P and Moody’s shall fall within
different levels, the Applicable Margin and the Applicable Percentage shall be based upon
the higher rating unless such ratings differ by two or more levels, in which case the
applicable level will be deemed to be one level above the lower of such levels; (d) if any
rating established by S&P or Moody’s shall be changed, such change shall be effective as of
the date on which such change is first announced publicly by the rating agency making such
change; and (e) if S&P or Moody’s shall change the basis on which ratings are established,
each reference to the Public Debt Rating announced by S&P or Moody’s, as the case may be,
shall refer to the then equivalent rating by S&P or Xxxxx’x, as the case may be.
“Ratable Share” of any amount means, with respect to any Lender at any time,
the product of such amount times a fraction the numerator of which is the amount of
such Lender’s Revolving Credit Commitment at such time (or, if the Revolving Credit
Commitments shall have been terminated pursuant to Section 2.05 or 6.01, such Lender’s
Revolving Credit Commitment as in effect immediately prior to such termination) and the
denominator of which is the aggregate amount of all Revolving Credit Commitments at such
time (or, if the Revolving Credit Commitments shall have been terminated pursuant to Section
2.05 or 6.01, the aggregate amount of all Revolving Credit Commitments as in effect
immediately prior to such termination).
“Real Estate” means land, buildings and improvements owned or leased by any
Loan Party, but excluding all operating fixtures and equipment, whether or not incorporated
into improvements.
“Reference Banks” means Citibank, Barclays Bank PLC, Deutsche Bank AG New York
Branch and DBS Bank Ltd.
“Register” has the meaning specified in Section 9.07(d).
“Related Parties” means, with respect to any Person, such Person’s Affiliates
and the partners, directors, officers, employees, agents and advisors of such Person and of
such Person’s Affiliates.
“Required Lenders” means at any time Lenders owed more than 50.0% of the then
aggregate unpaid principal amount of the Revolving Credit Advances, or, if no such principal
amount is then outstanding, Lenders having more than 50.0% of the Revolving Credit
Commitments, provided that if any Lender shall be a Defaulting Lender at such time,
there shall be excluded from the determination of Required Lenders at such time the
Revolving Credit Commitment of such Lender at such time.
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Avago Credit Agreement
“Restricting Information” has the meaning specified in Section 9.09.
“Revolving Credit Advance” means an advance by a Lender to the Borrower as part
of a Borrowing and refers to a Base Rate Advance or a Eurocurrency Rate Advance (each of
which shall be a “Type” of Revolving Credit Advance).
“Revolving Credit Commitment” means as to any Lender (a) the Dollar amount set
forth opposite such Lender’s name on Schedule I hereto as such Lender’s “Revolving Credit
Commitment”, (b) if such Lender has become a Lender hereunder pursuant to an Assumption
Agreement, the Dollar amount set forth in such Assumption Agreement or (c) if such Lender
has entered into an Assignment and Acceptance, the Dollar amount set forth for such Lender
in the Register maintained by the Agent pursuant to Section 9.07(d) as such Lender’s
“Revolving Credit Commitment”, as such amount may be reduced pursuant to Section 2.05 or
increased pursuant to Section 2.18.
“Revolving Credit Facility” means, at any time, the aggregate amount of the
Lenders’ Revolving Credit Commitments at such time.
“S&P” means Standard & Poor’s Financial Services LLC.
“Sale Leaseback” means any transaction or series of related transactions
pursuant to which the Borrower or any Subsidiary (a) sells, transfers or otherwise disposes
of any property, real or personal, whether now owned or hereafter acquired, and (b) as part
of such transaction, thereafter rents or leases such property or other property that it
intends to use for substantially the same purpose or purposes as the property being sold,
transferred or disposed.
“SEC” means the Securities and Exchange Commission.
“Silver Lake” means Silver Lake Partners and its Affiliates, collectively.
“Single Employer Plan” means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of Holdings or any ERISA
Affiliate and no Person other than Holdings and the ERISA Affiliates or (b) was so
maintained and in respect of which Holdings or any ERISA Affiliate could have liability
under Section 4069 of ERISA in the event such plan has been or were to be terminated.
“Solvent” shall mean, with respect to the Borrower, that as of the Effective
Date, both (i) (a) the sum of the Borrower’s debt (including contingent liabilities) does
not exceed the present fair saleable value of the Borrower’s present assets; (b) the
Borrower’s capital is not unreasonably small in relation to its business as contemplated on
the Effective Date; and (c) the Borrower has not incurred and does not intend to incur, or
believe that it will incur, debts including current obligations beyond its ability to pay
such debts as they become due (whether at maturity or otherwise); and (ii) the Borrower is
“solvent” within the meaning given that term and similar terms under applicable laws
relating to fraudulent transfers and conveyances. For purposes of this definition, the
amount of any contingent liability at any time shall be computed as the amount that, in
light of all of the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability (irrespective of
whether such contingent liabilities meet the criteria for accrual under Statement of
Financial Accounting Standard No. 5).
“Sponsors” means KKR, Silver Lake, and their respective Affiliates,
collectively.
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Avago Credit Agreement
“Stock” shall mean shares of capital stock or shares in the capital, as the
case my be (whether denominated as common stock or preferred stock or ordinary shares or
preferred shares, as the case may be), beneficial, partnership or membership interests,
participations or other equivalents (regardless of how designated) of or in a corporation,
partnership, limited liability company or equivalent entity, whether voting or non-voting.
“Stock Equivalents” shall mean all securities convertible into or exchangeable
for Stock and all warrants, options or other rights to purchase or subscribe for any Stock,
whether or not presently convertible, exchangeable or exercisable.
“Subsidiary” of any Person means any corporation, partnership, joint venture,
limited liability company, trust or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting power to elect a majority of the
board of directors of such corporation (irrespective of whether at the time capital stock of
any other class or classes of such corporation shall or might have voting power upon the
occurrence of any contingency), (b) the interest in the capital or profits of such limited
liability company, partnership or joint venture or (c) the beneficial interest in such trust
or estate is at the time directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of such Person’s other
Subsidiaries.
“Subsidiary Guarantor” means each Guarantor that is a Subsidiary of the
Borrower.
“Taxes” shall mean any and all present or future taxes, duties, levies,
imposts, assessments, deductions, withholdings or other similar charges imposed by any
governmental authority whether computed on a separate, consolidated, unitary, combined or
other basis and any and all liabilities (including interest, fines, penalties or additions
to tax) with respect to the foregoing.
“Termination Date” means the earlier of (i) March 31, 2015; provided, however,
that if such date is not a Business Day, the Termination Date shall be the next preceding
Business Day and (ii) the date of termination in whole of the Revolving Credit Commitments
pursuant to Section 2.05 or 6.01.
“Type” has the meaning specified in the definition of “Revolving Credit
Advance.”
“Unissued Letter of Credit Commitment” means, with respect to any Issuing Bank,
the obligation of such Issuing Bank to issue Letters of Credit for the account of the
Borrower or its specified Subsidiaries in an amount equal to the excess of (a) the amount of
its Letter of Credit Commitment over (b) the aggregate Available Amount of all Letters of
Credit issued by such Issuing Bank.
“Unused Revolving Credit Commitment” means, with respect to each Lender at any
time, (a) such Lender’s Revolving Credit Commitment at such time minus (b) the sum of (i)
the aggregate principal amount of all Revolving Credit Advances made by such Lender (in its
capacity as a Lender) and outstanding at such time, plus (ii) such Lender’s Ratable Share of
(A) the aggregate Available Amount of all the Letters of Credit outstanding at such time and
(B) the aggregate principal amount of all Advances outstanding at such time made by each
Issuing Bank pursuant to Section 2.03(c) that have not been funded by such Lender.
“U.S. Inc.” has the meaning specified in the preamble hereto.
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Avago Credit Agreement
“U.S. Loan Party” means each Loan Party other than a Non-U.S. Loan Party.
“Voting Stock” means capital stock issued by a corporation, or equivalent
interests in any other 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 to so vote has been suspended by the happening
of such a contingency.
“Yen” and the sign “¥” each mean the lawful money of Japan.
SECTION 1.02. Computation of Time Periods. In this Agreement in the computation of
periods of time from a specified date to a later specified date, the word “from” means “from and
including” and the words “to” and “until” each mean “to but excluding”.
SECTION 1.03. Accounting Terms. All accounting terms not specifically defined herein
shall be construed in accordance with United States generally accepted accounting principles as in
effect in the United States from time to time (“GAAP”), provided that (a) if there
is any change in GAAP from such principles applied in the preparation of the audited financial
statements referred to in Section 4.01(j) (“Initial GAAP”), that is material in respect of
the calculation of compliance with the covenants set forth in Section 5.02 or 5.03, the Borrower
shall give prompt notice of such change to the Agent and the Lenders and (b) if the Borrower
notifies the Agent that the Borrower requests an amendment of any provision hereof to eliminate the
effect of any change in GAAP (or the application thereof) from Initial GAAP (or if the Agent or the
Required Lenders request an amendment of any provision hereof for such purpose), regardless of
whether such notice is given before or after such change in GAAP (or the application thereof), then
such provision shall be applied on the basis of such generally accepted accounting principles as in
effect and applied immediately before such change shall have become effective until such notice
shall have been withdrawn or such provision is amended in accordance herewith.
Unless otherwise provided, dollar ($) baskets set forth in the representations and warranties,
covenants and events of default provisions of this Agreement (and other similar baskets (it being
understood that this sentence does not apply to Article II of this Agreement)) are calculated as of
each date of measurement by the Dollar Equivalents thereof as of such date of measurement;
provided that if any such baskets are exceeded solely as a result of fluctuations in
applicable currency exchange rates after the last time such baskets were accessed, such baskets
will not be deemed to have been exceeded solely as a result of such fluctuations in currency
exchange rates.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
SECTION 2.01. The Advances and Letters of Credit. (a) The Revolving Credit
Advances. Each Lender severally agrees, on the terms and conditions hereinafter set forth, to
make Revolving Credit Advances to the Borrower from time to time on any Business Day during the
period from the Effective Date until the Termination Date in an amount not to exceed such Lender’s
Unused Revolving Credit Commitment. Each Borrowing shall be in an amount not less than the
Borrowing Minimum or a Borrowing Multiple in excess thereof and shall consist of Revolving Credit
Advances of the same Type made on the same day by the Lenders ratably according to their respective
Revolving Credit Commitments. Within the limits of each Lender’s Revolving Credit Commitment, the
Borrower may borrow under this Section 2.01(a), prepay pursuant to Section 2.10 and reborrow under
this Section 2.01(a).
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Avago Credit Agreement
(b) Letters of Credit. The Borrower may request any Issuing Bank to issue, and such
Issuing Bank may, if in its reasonable discretion it elects to do so, on the terms and conditions
hereinafter set forth and in reliance upon the agreements of the other Lenders set forth in this
Agreement, to issue standby letters of credit (each, a “Letter of Credit”) denominated in
Dollars or any Alternate Currency for the account of the Borrower or its specified Subsidiaries
from time to time on any Business Day during the period from the Effective Date until 10 days
before the Termination Date with the Dollar Equivalent of the aggregate Available Amount (i) for
all Letters of Credit not to exceed at any time the Letter of
Credit Facility at such time, (ii) for all Letters of Credit issued by such Issuing Bank not
to exceed at any time the Letter of Credit Commitment of such Issuing Bank and (iii) for each such
Letter of Credit not to exceed an amount equal to the Unused Revolving Credit Commitments of the
Lenders at such time. No Letter of Credit shall have an expiration date (including all rights of
the Borrower or the beneficiary to require renewal) later than the earlier of (x) one year after
the Issuance thereof (or one year after its renewal or extension) or such longer period as may be
agreed by the applicable Issuing Bank and (y) five Business Days before the Termination Date.
Within the limits referred to above, the Borrower may from time to time request the Issuance of
Letters of Credit under this Section 2.01(b).
SECTION 2.02. Making the Advances. (a) Each Borrowing shall be made on notice,
given not later than (x) 12:00 Noon (Hong Kong time) on the third Business Day prior to the date of
the proposed Borrowing in the case of a Borrowing consisting of Eurocurrency Rate Advances or (y)
12:00 Noon (Hong Kong time) on the Business Day prior to the date of the proposed Borrowing in the
case of a Borrowing consisting of Base Rate Advances, by the Borrower to the Agent which shall give
to each Lender prompt notice thereof by facsimile. Each such notice of a Borrowing (a “Notice
of Borrowing”) shall be by telephone, confirmed immediately in writing, or facsimile in
substantially the form of Exhibit B hereto, specifying therein the requested (i) date of such
Borrowing, (ii) Type of Advances comprising such Borrowing, (iii) aggregate amount of such
Borrowing and (iv) in the case of a Borrowing consisting of Eurocurrency Rate Advances, initial
Interest Period. Each Lender shall, before 12:00 Noon (Hong Kong time) on the date of such
Borrowing, make available for the account of its Applicable Lending Office to the Agent at the
Agent’s Account, in same day funds, such Lender’s ratable portion of such Borrowing. After the
Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in
Article III, the Agent will make such funds available to the Borrower at the account specified in
the wiring instructions in the applicable Notice of Borrowing or, if no account is so specified, at
the Agent’s address referred to in Section 9.02.
(b) Anything in subsection (a) above to the contrary notwithstanding, the Borrower may not
select Eurocurrency Rate Advances for any Borrowing if the aggregate amount of such Borrowing is
less than the Borrowing Minimum or if the obligation of the Lenders to make Eurocurrency Rate
Advances shall then be suspended pursuant to Section 2.08 or 2.12.
(c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower. In the case of
any Borrowing that the related Notice of Borrowing specifies is to be comprised of Eurocurrency
Rate Advances, the Borrower shall indemnify each Lender against any loss, cost or expense incurred
by such Lender as a result of any failure to fulfill on or before the date specified in such Notice
of Borrowing for such Borrowing the applicable conditions set forth in Article III, including,
without limitation, any loss (excluding any loss of Applicable Margin on the relevant Eurocurrency
Rate Advance), cost or expense reasonably incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Advance to be made by such Lender as
part of such Borrowing when such Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender prior to the time of any
Borrowing that such Lender will not make available to the Agent such Lender’s ratable portion of
such Borrowing, the Agent may assume that such Lender has made such portion available to the Agent
on
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Avago Credit Agreement
the date of such Borrowing in accordance with subsection (a) of this Section 2.02, and the Agent
may, in reliance upon such assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have so made such ratable portion
available to the Agent, such Lender and the Borrower severally agree to repay to the Agent
forthwith on demand such corresponding amount together with interest thereon, for each day from the
date such amount is made available to the Borrower until the date such amount is repaid to the
Agent, at (i) in the case of the Borrower, the higher of (A) the interest rate applicable at the
time to the Advances comprising such Borrowing and (B) the cost
of funds incurred by the Agent in respect of such amount and (ii) in the case of such Lender,
the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such
amount so repaid shall constitute such Lender’s Advance as part of such Borrowing for purposes of
this Agreement.
(e) The failure of any Lender to make the Advance to be made by it as part of any Borrowing
shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the
date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to
make the Advance to be made by such other Lender on the date of any Borrowing. The rights of each
Lender under or in connection with the Loan Documents are separate and independent rights and any
Debt arising under the Loan Documents to a Lender from a Loan Party shall be a separate and
independent Debt.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit.
(a) Request for Issuance. (i) Each Letter of Credit shall be issued upon notice, given
not later than 12:00 Noon (Hong Kong time) on the fifth Business Day prior to the date of the
proposed Issuance of such Letter of Credit (or on such shorter notice as the applicable Issuing
Bank may agree), by the Borrower to any Issuing Bank (with a copy to the Agent). Each such notice
by the Borrower requesting the Issuance of a Letter of Credit (a “Notice of Issuance”)
shall be by facsimile, specifying therein the requested (A) date of such Issuance (which shall be a
Business Day), (B) Available Amount and currency of such Letter of Credit, (C) expiration date of
such Letter of Credit (which shall not be later than the earlier of (1) one year after the Issuance
thereof (or one year after its renewal or extension) unless otherwise agreed upon by the Agent and
the applicable Issuing Bank and (2) five Business Days before the Termination Date), (D) name and
address of the beneficiary of such Letter of Credit and (E) form of such Letter of Credit. Such
Letter of Credit shall be issued pursuant to such application and agreement for letter of credit as
such Issuing Bank and the Borrower shall agree for use in connection with such requested Letter of
Credit (a “Letter of Credit Agreement”). If the requested form of such Letter of Credit is
acceptable to such Issuing Bank in its reasonable discretion (it being understood that any such
form shall have only explicit documentary conditions to draw and shall not include discretionary
conditions), such Issuing Bank will, upon fulfillment of the applicable conditions set forth in
Section 3.02, make such Letter of Credit available to the Borrower at its office referred to in
Section 9.02 or as otherwise agreed with the Borrower in connection with such Issuance. In the
event and to the extent that the provisions of any Letter of Credit Agreement shall conflict with
this Agreement, the provisions of this Agreement shall govern.
(b) Participations. By the Issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing or decreasing the amount thereof) and without any further action on the
part of the applicable Issuing Bank or the Lenders, such Issuing Bank hereby grants to each Lender,
and each Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit
equal to such Lender’s Ratable Share of the Available Amount of such Letter of Credit. The
Borrower hereby agrees to each such participation. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Agent in Dollars,
for the account of such Issuing Bank, in same day funds, the Dollar Equivalent of such Lender’s
Ratable Share of each drawing made under a Letter of Credit funded by such Issuing Bank and not
reimbursed by the Borrower on the date made, or of any reimbursement payment required to be
refunded to the Borrower for any reason, which amount will be advanced, and deemed to be a
Revolving Credit Advance to the Borrower hereunder, regardless of the
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Avago Credit Agreement
satisfaction of the
conditions set forth in Section 3.02. Each Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Revolving Credit Commitments, and that each such payment shall be
made without any offset, abatement, withholding or reduction whatsoever. Each Lender further
acknowledges and agrees that its participation in each Letter of Credit will be automatically
adjusted to reflect such Lender’s Ratable Share of the Available Amount of such Letter of Credit at
each time such Lender’s Revolving
Credit Commitment is amended pursuant to a Commitment Increase pursuant to Section 2.18, an
assignment in accordance with Section 9.07 or otherwise pursuant to this Agreement.
(c) Drawing and Reimbursement. The payment by an Issuing Bank of a draft drawn under
any Letter of Credit which is not reimbursed by the Borrower prior to 10:00 A.M. (Hong Kong time)
on the date made shall constitute for all purposes of this Agreement the making by any such Issuing
Bank of a Revolving Credit Advance, which shall be a Base Rate Advance, in the amount of the Dollar
Equivalent of such draft, without regard to whether the making of such an Advance would exceed such
Issuing Bank’s Unused Revolving Credit Commitment. Each Issuing Bank shall give prompt notice of
each drawing under any Letter of Credit issued by it to the Borrower and the Agent. Upon written
demand by such Issuing Bank, with a copy of such demand to the Agent and the Borrower, each Lender
shall pay to the Agent in Dollars such Lender’s Ratable Share of such outstanding Revolving Credit
Advance pursuant to Section 2.03(b). Each Lender acknowledges and agrees that its obligation to
make Revolving Credit Advances pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a
Default or reduction or termination of the Revolving Credit Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction whatsoever. Promptly after
receipt thereof, the Agent shall transfer such funds to such Issuing Bank. Each Lender agrees to
fund its Ratable Share of an outstanding Revolving Credit Advance on (i) the Business Day on which
demand therefor is made by such Issuing Bank, provided that notice of such demand is given not
later than 11:00 A.M. (Hong Kong time) on such Business Day, or (ii) the first Business Day next
succeeding such demand if notice of such demand is given after such time. If and to the extent
that any Lender shall not have so made the amount of such Revolving Credit Advance available to the
Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with
interest thereon, for each day from the date of demand by any such Issuing Bank until the date such
amount is paid to the Agent, at the Federal Funds Rate for its account or the account of such
Issuing Bank, as applicable. If such Lender shall pay to the Agent such amount for the account of
any such Issuing Bank on any Business Day, such amount so paid in respect of principal shall
constitute a Revolving Credit Advance made by such Lender on such Business Day for purposes of this
Agreement, and the outstanding principal amount of the Revolving Credit Advance made by such
Issuing Bank shall be reduced by such amount on such Business Day.
(d) Letter of Credit Reports. Each Issuing Bank shall furnish (A) to the Agent (with
a copy to the Borrower) on the first Business Day of each month a written report summarizing
Issuance and expiration dates of Letters of Credit issued by such Issuing Bank during the preceding
month and drawings during such month under all Letters of Credit and (B) to the Agent (with a copy
to the Borrower) on the first Business Day of each calendar quarter a written report setting forth
the Dollar Equivalent of the average daily aggregate Available Amount during the preceding calendar
quarter of all Letters of Credit issued by such Issuing Bank.
(e) Failure to Make Advances. The failure of any Lender to make the Advance to be
made by it on the date specified in Section 2.03(c) shall not relieve any other Lender of its
obligation
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Avago Credit Agreement
hereunder to make its Advance on such date, but no Lender shall be responsible for the
failure of any other Lender to make the Advance to be made by such other Lender on such date.
SECTION 2.04. Fees. (a) Commitment Fee. The Borrower agrees to pay to the
Agent for the account of each Lender a commitment fee on such Lender’s Unused Revolving Credit
Commitment from the date hereof in the case of each Initial Lender and from the effective date
specified in the Assumption Agreement or in the Assignment and Acceptance pursuant to which it
became a Lender in the case of each other Lender until the Termination Date at a rate per annum
equal to the Applicable Percentage in effect from time to time, payable in arrears quarterly on the
last day of each March, June,
September and December, commencing March 31, 2011, and on the later of the Termination Date
and the date all Advances are paid in full; provided that no Defaulting Lender shall be
entitled to receive any commitment fee in respect of its Unused Revolving Credit Commitment for any
period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to
pay such fee that otherwise would have been required to have been paid to that Defaulting Lender).
(b) Letter of Credit Fees. (i) The Borrower shall pay to the Agent for the account
of each Lender a commission on such Lender’s Ratable Share of the average daily aggregate Available
Amount of all Letters of Credit issued for the account of the Borrower and outstanding from time to
time at a rate per annum equal to the Applicable Margin for Eurocurrency Rate Advances in effect
from time to time during such calendar quarter, payable in arrears quarterly on the last day of
each March, June, September and December, commencing March 31, 2011 and on the Termination Date;
provided, that no Defaulting Lender shall be entitled to receive any commission in respect
of Letters of Credit for any period during which that Lender is a Defaulting Lender (and the
Borrower shall not be required to pay such commission to that Defaulting Lender but shall pay such
commission as set forth in Section 2.19); provided, further, that the Applicable
Margin shall be 2% above the Applicable Margin in effect upon the occurrence and during the
continuation of an Event of Default if the Borrower is required to pay Default Interest pursuant to
Section 2.07(b).
(ii) The Borrower shall pay to the Agent for the account of each Issuing Bank, a
fronting fee equal to 0.15% per annum, times the average daily Available Amount of each
Letter of Credit issued by such Issuing Bank, payable in arrears quarterly on the last day
of each March, June, September and December, commencing March 31, 2011.
(iii) The Borrower shall pay to each Issuing Bank, for its own account, such other
commissions, issuance fees, transfer fees and other fees and charges in connection with the
Issuance or administration of each Letter of Credit as the Borrower and such Issuing Bank
shall agree.
(c) Agent’s Fees. The Borrower shall pay to the Agent for its own account such fees
as may from time to time be agreed between the Borrower and the Agent.
SECTION 2.05. Termination or Reduction of the Commitments. (a) Optional Ratable
Termination or Reduction. The Borrower shall have the right, upon at least three Business
Days’ notice to the Agent (or such shorter period as may be agreed to by the Agent), to terminate
in whole or permanently reduce ratably in part the Unused Revolving Credit Commitments or the
Unissued Letter of Credit Commitments, provided that each partial reduction of a Facility
(i) shall be in the aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof and (ii) shall be made ratably among the Lenders in accordance with their Commitments.
(b) Termination of Defaulting Lender. The Borrower may terminate the Unused Revolving
Credit Commitment of any Lender that is a Defaulting Lender (determined after giving effect
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Avago Credit Agreement
to any
reallocation of participations in Letters of Credit as provided in Section 2.19) upon prior notice
of not less than one Business Day to the Agent (which shall promptly notify the Lenders thereof),
and in such event the provisions of Section 2.19(b)(iii) shall apply to all amounts thereafter paid
by the Borrower for the account of such Defaulting Lender under this Agreement (whether on account
of principal, interest, facility fees, Letter of Credit commissions or other amounts),
provided that such termination shall not be deemed to be a waiver or release of any claim
the Borrower, the Agent, any Issuing Bank or any Lender may have against such Defaulting Lender.
SECTION 2.06. Repayment of Advances and Letter of Credit Drawings. (a)
Revolving Credit Advances. The Borrower shall repay to the Agent for the ratable account
of the Lenders on the Termination Date the aggregate principal amount of the Revolving Credit
Advances made to it and then outstanding.
(b) Letter of Credit Drawings. The obligations of the Borrower under any Letter of
Credit Agreement and any other agreement or instrument relating to any Letter of Credit issued for
the account of the Borrower shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement, such Letter of Credit Agreement and such other
agreement or instrument under all circumstances, including, without limitation, the following
circumstances (it being understood that any such payment by the Borrower is without prejudice to,
and does not constitute a waiver of, any rights the Borrower might have or might acquire as a
result of the payment by any Issuing Bank of any draft or the reimbursement by the Borrower
thereof, including as provided in Section 9.14):
(i) any lack of validity or enforceability of this Agreement, any Note, any Letter of
Credit Agreement, any Letter of Credit or any other agreement or instrument relating thereto
(all of the foregoing being, collectively, the “L/C Related Documents”);
(ii) any change in the time, manner or place of payment of, or in any other term of,
all or any of the obligations of the Borrower in respect of any L/C Related Document or any
other amendment or waiver of or any consent to departure from all or any of the L/C Related
Documents;
(iii) the existence of any claim, set-off, defense or other right that the Borrower may
have at any time against any beneficiary or any transferee of a Letter of Credit (or any
Persons for which any such beneficiary or any such transferee may be acting), any Issuing
Bank, the Agent, any Lender or any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
(iv) any statement or any other document presented under a 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;
(v) payment by any Issuing Bank under a Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such Letter of Credit;
(vi) any exchange, release or non-perfection of any collateral, or any release or
amendment or waiver of or consent to departure from any guarantee, for all or any of the
obligations of the Borrower in respect of the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including, without limitation, any other circumstance that might otherwise
constitute a defense available to, or a discharge of, the Borrower or a guarantor.
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Avago Credit Agreement
The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct
on the part of an Issuing Bank, such Issuing Bank shall be deemed to have exercised reasonable care
in each such determination. In furtherance of the foregoing and without limiting the generality
thereof, the parties agree that, with respect to documents presented which appear on their face to
be in substantial compliance with the terms of a Letter of Credit, an Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without responsibility for further
investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment upon such documents
if such documents are not in strict compliance with the terms of such Letter of Credit.
SECTION 2.07. Interest on Advances. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance made to it and owing to each
Lender from the date of such Advance until such principal amount shall be paid in full, at the
following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving Credit Advance
is a Base Rate Advance, a rate per annum equal at all times to the sum of (x) the Base Rate
in effect from time to time plus (y) the Applicable Margin in effect from time to time,
payable in arrears quarterly on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be Converted or paid in
full.
(ii) Eurocurrency Rate Advances. During such periods as such Revolving Credit
Advance is a Eurocurrency Rate Advance, a rate per annum equal at all times during each
Interest Period for such Eurocurrency Rate Advance to the sum of (x) the Eurocurrency Rate
for such Interest Period for such Eurocurrency Rate Advance plus (y) the Applicable Margin
in effect from time to time, payable in arrears on the last day of such Interest Period and,
if such Interest Period has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of such Interest Period
and on the date such Eurocurrency Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance of an Event of
Default under Section 6.01(a) or (e), the Borrower shall pay interest (“Default Interest”)
on (i) the unpaid principal amount of each Advance owing to each Lender, payable in arrears on the
dates referred to in clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to 2%
per annum above the rate per annum required to be paid on such Advance pursuant to clause (a)(i) or
(a)(ii) above and (ii) to the fullest extent permitted by law, the amount of any interest, fee or
other amount payable hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such amount shall be paid
in full and on demand, at a rate per annum equal at all times to 2% per annum above the rate per
annum required to be paid on Base Rate Advances pursuant to clause (a)(i) above; provided,
however, that following acceleration of the Advances pursuant to Section 6.01, Default
Interest shall accrue and be payable hereunder whether or not previously required by the Agent.
SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank agrees, if
requested by the Agent, to furnish to the Agent timely information for the purpose of determining
each Eurocurrency Rate. If any one or more of the Reference Banks shall not furnish such timely
information to the Agent for the purpose of determining any such interest rate, the Agent shall
determine such interest rate on the basis of timely information furnished by the remaining
Reference Banks. The Agent shall give prompt notice to the Borrower and the Lenders of the
applicable interest rate determined by the Agent for purposes of Section 2.07(a)(i) or (ii), and
the rate, if any, furnished by each Reference Bank for the purpose of determining the interest rate
under Section 2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate Borrowing, the Lenders owed more than 50.0% of
the aggregate principal amount thereof notify the Agent that (i) they are unable to obtain
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Avago Credit Agreement
matching
deposits in the London inter-bank market at or about 11:00 A.M. (London time) on the second
Business Day before the making of a Borrowing in sufficient amounts to fund their respective
Eurocurrency Rate Advances as a part of such Borrowing during its Interest Period or (ii) the
Eurocurrency Rate for any Interest Period for such Advances will not adequately reflect the cost to
such Lenders of making, funding or maintaining their respective Eurocurrency Rate Advances for such
Interest Period, the Agent shall forthwith so notify the Borrower and the Lenders, whereupon (A)
the Borrower of
such Eurocurrency Rate Advances will, on the last day of the then existing Interest Period
therefor, either (1) prepay such Advances or (2) Convert such Advances into Base Rate Advances and
(B) the obligation of the Lenders to make, or to Convert Revolving Credit Advances into,
Eurocurrency Rate Advances shall be suspended until the Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any Interest Period for any
Eurocurrency Rate Advances in accordance with the provisions contained in the definition of
“Interest Period” in Section 1.01, the Agent will forthwith so notify the Borrower and the Lenders
and such Advances will automatically, on the last day of the then existing Interest Period therefor
Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of Eurocurrency Rate Advances
comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than the
Borrowing Minimum, such Advances shall automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of Default, (i) each
Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period
therefor, be Converted into Base Rate Advances and (ii) the obligation of the Lenders to make, or
to Convert Advances into, Eurocurrency Rate Advances shall be suspended.
(f) If Reuters LIBOR01 Page is unavailable and fewer than two Reference Banks furnish timely
information to the Agent for determining the Eurocurrency Rate for any Eurocurrency Rate Advances
after the Agent has requested such information,
(i) the Agent shall forthwith notify the Borrower and the Lenders that the interest
rate cannot be determined for such Eurocurrency Rate Advances,
(ii) each such Advance will automatically, on the last day of the then existing
Interest Period therefor Convert into a Base Rate Advance, and
(iii) the obligation of the Lenders to make Eurocurrency Rate Advances or to Convert
Advances comprising a Borrowing into Eurocurrency Rate Advances shall be suspended until the
Agent shall notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.09. Optional Conversion of Advances. The Borrower may on any Business Day,
upon notice given to the Agent not later than 12:00 Noon (Hong Kong time) on the third Business Day
prior to the date of the proposed Conversion and subject to the provisions of Sections 2.08 and
2.12, Convert all or any portion of the Advances made as a part of a Borrowing of one Type
comprising the same Borrowing into Advances of the other Type; provided, however, that any
Conversion of Eurocurrency Rate Advances into Base Rate Advances shall be made only on the last day
of an Interest Period for such Eurocurrency Rate Advances, any Conversion of Base Rate Advances
into Eurocurrency Rate Advances shall be in an amount not less than the minimum amount specified in
Section 2.02(b) and each Conversion of Advances comprising part of the same Borrowing shall be made
ratably among the
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Avago Credit Agreement
Lenders in accordance with their Commitments. Each such notice of a Conversion
shall, within the restrictions specified above, specify (i) the date of such Conversion, (ii) the
Advances to be Converted, and (iii) if such Conversion is into Eurocurrency Rate Advances, the
duration of the initial Interest Period for each such Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
SECTION 2.10. Prepayments of Advances. Optional. (a) The Borrower may,
upon irrevocable notice not later than 10:00 A.M. (Hong Kong time) three Business Days prior to the
date of such prepayment (or such shorter period as may be agreed to by the Agent), which notice
shall be by telephone, confirmed immediately in writing, or facsimile, to the Agent stating the
proposed date and aggregate principal amount of the prepayment, and if such notice is given the
Borrower shall, prepay the outstanding principal amount of the Advances comprising part of the same
Borrowing in whole or ratably in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid; provided, however, that (i) each
partial prepayment of Revolving Credit Advances shall be in an aggregate principal amount of not
less than the Borrowing Minimum or an Borrowing Multiple in excess thereof and (ii) in the event of
any such prepayment of a Eurocurrency Rate Advance, the Borrower shall be obligated to reimburse
the Lenders in respect thereof pursuant to Section 9.04(c).
(b) Mandatory. (i) If, on any date, the Agent notifies the Borrower that, on any
interest payment date, the sum of (A) the aggregate principal amount of all Revolving Credit
Advances plus (B) the Dollar Equivalent (determined on the third Business Day prior to such
interest payment date) of the aggregate Available Amount of all Letters of Credit then outstanding
exceeds 103% of the aggregate Revolving Credit Commitments on such date, the Borrower shall, as
soon as practicable and in any event within two Business Days after receipt of such notice, prepay
the outstanding principal amount of any Advances owing by the Borrower in an aggregate amount
sufficient to reduce such sum to an amount not to exceed 100% of the aggregate Revolving Credit
Commitments of the Lenders on such date. If any such excess remains after repayment in full of the
aggregate outstanding Advances, the Borrower shall provide cash collateral in the manner set forth
in Section 6.02 in an amount equal to 105% of such excess.
(ii) If on any date, the Agent notifies the Borrower that, on any interest payment date, the
Dollar Equivalent (determined on the third Business Day prior to such interest payment date) of the
aggregate Available Amount of all Letters of Credit then outstanding exceeds 103% of the aggregate
Letter of Credit Commitments on such date, the Borrower shall, as soon as practicable and in any
event within two Business Days after receipt of such notice, provide cash collateral in the manner
set forth in Section 6.02 in an amount equal to 105% of such excess.
(iii) Each prepayment made pursuant to this Section 2.10(b) shall be made together with any
interest accrued to the date of such prepayment on the principal amounts prepaid and, in the case
of any prepayment of a Eurocurrency Rate Advance on a date other than the last day of an Interest
Period or at its maturity, any additional amounts which the Borrower shall be obligated to
reimburse to the Lenders in respect thereof pursuant to Section 9.04(c).
(iv) The Agent shall calculate on the date of each Notice of Borrowing or Notice of Issuance
and on each interest payment date the sum of (A) the aggregate principal amount of all Revolving
Credit Advances plus (B) the Dollar Equivalent of the aggregate Available Amount of all Letters of
Credit then outstanding and shall give prompt notice (and in any event no later than thirty days)
of any prepayment required under this Section 2.10(b) to the Borrower and the Lenders.
SECTION 2.11. Increased Costs. (a) If, due to either (i) the introduction or phase
in of or any change in or in the interpretation of any law, rule, guideline, decision, directive,
treaty or regulation or (ii) the compliance with any guideline or request from any central bank or
other
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Avago Credit Agreement
governmental authority including, without limitation, any agency of the European Union or
similar monetary or multinational authority (whether or not having the force of law), there shall
be any increase in the cost to any Lender of agreeing to make or making, funding or maintaining
Eurocurrency Rate Advances or of agreeing to issue or of issuing or maintaining or participating in
Letters of Credit (excluding for purposes of this Section 2.11 any such increased costs resulting
from (i) Indemnified Taxes
or Other Taxes (as to which Section 2.14 shall govern) and (ii) the imposition of, or any
change in the basis or rate of, any Excluded Tax (A) described in paragraphs (a)(i), (b), (c) or
(d) of the definition of Excluded Taxes or (B) described in paragraph (a)(ii) of the definition of
Excluded Taxes to the extent such Tax is imposed on gross or net income, profits or revenue
(including value-added or similar taxes), that is payable by such Lender), then the Borrower shall
from time to time, promptly upon receipt of a written request by such Lender (with a copy of such
request to the Agent), pay to the Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost; provided, however,
that before making any such demand, each Lender agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to designate a different Applicable
Lending Office if the making of such designation would avoid the need for, or reduce the amount of,
such increased cost and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender. A certificate as to the amount of such increased cost, submitted
to the Borrower and the Agent by such Lender, shall be conclusive and binding for all purposes,
absent manifest error.
(b) If any Lender determines that compliance with any law or regulation or any guideline or
request from any central bank or other governmental authority (whether or not having the force of
law) affects or would affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such capital is increased
by or based upon the existence of such Lender’s commitment to lend or to issue or participate in
Letters of Credit hereunder and other commitments of such type or the Issuance or maintenance of or
participation in the Letters of Credit (or similar contingent obligations), then, promptly upon
receipt of a written request by such Lender (with a copy of such request to the Agent), the
Borrower shall pay to the Agent for the account of such Lender, from time to time as specified by
such Lender, additional amounts sufficient to compensate such Lender or such corporation in the
light of such circumstances, to the extent that such Lender reasonably determines such increase in
capital to be allocable to the existence of such Lender’s commitment to lend or to issue or
participate in Letters of Credit hereunder or to the Issuance or maintenance of or participation in
any Letters of Credit. A certificate as to such amounts submitted to the Borrower and the Agent by
such Lender shall be conclusive and binding for all purposes, absent manifest error.
(c) Notwithstanding anything herein to the contrary, the Xxxx-Xxxxx Xxxx Street Reform and
Consumer Protection Act, and all requests, rules, guidelines or directives concerning capital
adequacy promulgated thereunder or promulgated by the Bank for International Settlements, the Basel
Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority)
or the United States financial regulatory authorities, are deemed to have been introduced or
adopted after the date hereof, regardless of the date adopted, issued, promulgated or implemented.
SECTION 2.12. Illegality. Notwithstanding any other provision of this Agreement, if
any Lender shall notify the Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for any Lender or its Eurocurrency Lending
Office to perform its obligations hereunder to make Eurocurrency Rate Advances in Dollars or to
fund or maintain Eurocurrency Rate Advances in Dollars hereunder, (a) each Eurocurrency Rate
Advance will automatically, upon such demand be Converted into a Base Rate Advance and (b) the
obligation of the Lenders to make Eurocurrency Rate Advances or to Convert Revolving Credit
Advances into Eurocurrency Rate Advances shall be suspended until the Agent
29
Avago Credit Agreement
shall notify the
Borrower and the Lenders that the circumstances causing such suspension no longer exist; provided,
however, that before making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to designate a
different Eurocurrency Lending Office if the making of such designation would allow such Lender or
its Eurocurrency Lending Office to continue to perform its obligations to make Eurocurrency Rate
Advances
or to continue to fund or maintain Eurocurrency Rate Advances and would not, in the judgment
of such Lender, be otherwise disadvantageous to such Lender.
SECTION 2.13. Payments and Computations. (a) The Borrower shall make each payment
hereunder, irrespective of any right of counterclaim or set-off, not later than 12:00 Noon. (Hong
Kong time) on the day when due in Dollars to the Agent at the Agent’s Account in same day funds.
The Agent will promptly thereafter cause to be distributed like funds relating to the payment of
principal or interest, fees or commissions ratably (other than amounts payable pursuant to Section
2.03, 2.04(b), 2.11, 2.14 or 9.04(c)) to the Lenders for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any other amount payable to any Lender
to such Lender for the account of its Applicable Lending Office (if to any Initial Lender, to the
account set forth opposite its name on Schedule I hereto; if to any other Lender, to the account
specified in its Administrative Questionnaire), in each case to be applied in accordance with the
terms of this Agreement. Upon any Assuming Lender becoming a Lender hereunder as a result of a
Commitment Increase pursuant to Section 2.18 and upon the Agent’s receipt of such Lender’s
Assumption Agreement and recording of the information contained therein in the Register, from and
after the applicable Increase Date, the Agent shall make all payments hereunder and under any Notes
issued in connection therewith in respect of the interest assumed thereby to the Assuming Lender.
Upon its acceptance of an Assignment and Acceptance and recording of the information contained
therein in the Register pursuant to Section 9.07(c), from and after the effective date specified in
such Assignment and Acceptance, the Agent shall make all payments hereunder and under the Notes in
respect of the interest assigned thereby to the Lender assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such payments for periods prior
to such effective date directly between themselves.
(b) All computations of interest based on the Base Rate shall be made by the Agent on the
basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on
the Eurocurrency Rate or the Federal Funds Rate and of fees and Letter of Credit commissions shall
be made by the Agent on the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for which such
interest, fees or commissions are payable. Each determination by the Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment of interest, fee or
commission, as the case may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurocurrency Rate Advances to be made in the next following calendar
month, such payment shall be made on the next preceding Business Day.
(d) Unless the Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Lenders hereunder that the Borrower will not make such payment in full,
the Agent may assume that the Borrower has made such payment in full to the Agent on such date and
the Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due
date an amount equal to the amount then due such Lender. If and to the extent the Borrower shall
not have so made such payment in full to the Agent, each Lender shall repay to the Agent forthwith
on demand such amount distributed to such Lender together with interest thereon, for each day from
the date
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Avago Credit Agreement
such amount is distributed to such Lender until the date such Lender repays such amount to
the Agent, at the Federal Funds Rate.
(e) To the extent that the Agent receives funds for application to the amounts owing by the
Borrower under or in respect of this Agreement or any Note in currencies other than the currency
or currencies required to enable the Agent to distribute funds to the Lenders in accordance
with the terms of this Section 2.13, the Agent shall be entitled to convert or exchange such funds
into Dollars to the extent necessary to enable the Agent to distribute such funds in accordance
with the terms of this Section 2.13; provided that the Borrower and each of the Lenders
hereby agree that the Agent shall not be liable or responsible for any loss, cost or expense
suffered by the Borrower or such Lender as a result of any conversion or exchange of currencies
affected pursuant to this Section 2.13(e) or as a result of the failure of the Agent to effect any
such conversion or exchange; and provided further that the Borrower agrees to indemnify the Agent
and each Lender, and hold the Agent and each Lender harmless, for any and all losses, costs and
expenses incurred by the Agent or any Lender for any conversion or exchange of currencies (or the
failure to convert or exchange any currencies) in accordance with this Section 2.13(e), absent
gross negligence or willful misconduct on the part of the Agent or such Lender, respectively.
(f) If the Agent receives a payment that is insufficient to discharge all the amounts then due
and payable by the Loan Parties under the Loan Documents, the Agent shall apply that payment
towards the obligations of the Loan Parties under the Loan Documents in the following order:
first, in or towards payment pro rata of any unpaid fees, costs and expenses of
the Agent and the Arrangers under the Loan Documents;
second, in or towards payment pro rata of any accrued interest, fee or
commission due but unpaid under this Agreement;
third, in or towards payment pro rata of any principal due but unpaid under
this Agreement; and
fourth, in or towards payment pro rata of any other sum due but unpaid under
the Loan Documents.
The Agent shall, if so directed by the Required Lenders, vary the order set out
above.
SECTION 2.14. Taxes. (a) Any and all payments by the Borrower to or for the account
of any Lender or the Agent hereunder or under the Notes or any other documents to be delivered
hereunder shall be made, in accordance with Section 2.13 or the applicable provisions of such other
documents, free and clear of and without deduction for any and all Indemnified Taxes. If the
Borrower shall be required by law to deduct any Indemnified Taxes from or in respect of any sum
payable hereunder or under any Note or any other documents to be delivered hereunder to any Lender
or the Agent, (i) the sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable under this Section
2.14) such Lender or the Agent (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or other
governmental authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies that arise from any payment made
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Avago Credit Agreement
hereunder or under the Notes or any other documents to be delivered hereunder or from the
execution, delivery or registration of, performing under, or otherwise with respect to, this
Agreement or the Notes or any other documents to be delivered hereunder (hereinafter referred to as
“Other Taxes”).
(c) The Borrower shall indemnify each Lender and the Agent for and hold it harmless against
the full amount of Indemnified Taxes (including, without limitation, Indemnified Taxes imposed or
asserted by any jurisdiction on amounts payable under this Section 2.14) imposed on or paid by such
Lender or the Agent (as the case may be) and any liability (including penalties, interest and
reasonable expenses) arising therefrom or with respect thereto other than such liability (including
penalties, interest and expenses) attributable to the acts of or failure to act by such Lender.
This indemnification shall be made within 30 days from the date such Lender or the Agent (as the
case may be) makes written demand therefor. Upon request from the Borrower, the Lender or Agent
(as the case may be) shall provide the Borrower with such information and documentation as to the
calculation of the indemnification payment as the Borrower may reasonably request.
(d) Within 30 days after the date of any payment of Indemnified Taxes, the Borrower shall
furnish to the Agent, at its address referred to in Section 9.02, the original or a certified copy
of a receipt evidencing such payment to the extent such a receipt is issued therefor, or other
written proof of payment thereof that is reasonably satisfactory to the Agent.
(e) (i) Each Lender shall deliver documentation prescribed by applicable law or reasonably
requested by the Borrower or the Agent as will enable the Borrower or the Agent to determine
whether such Lender is subject to United States federal backup withholding or information reporting
requirements.
(ii) Without limiting the generality of the foregoing, each Lender other than a Non-U.S.
Lender shall deliver, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assumption Agreement or
the Assignment and Acceptance pursuant to which it becomes a Lender in the case of each
other Lender, (and promptly from time to time thereafter if any form previously delivered
becomes inaccurate or upon the request of the Borrower or the Agent), a properly completed
Internal Revenue Service Form W-9 to the Borrower and the Agent certifying that such Person
is exempt from United States backup withholding tax on payments made under the Agreement.
(iii) In addition, each Non-U.S. Lender, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender and on the date of the
Assumption Agreement or the Assignment and Acceptance pursuant to which it becomes a Lender
in the case of each other Lender, and from time to time thereafter as reasonably requested
in writing by the Borrower (but only so long as such Lender remains lawfully able to do so),
shall deliver to the Borrower and the Agent two properly completed and duly executed copies
of (x) Internal Revenue Service Form X-0XXX, X-0XXX and/or W-8IMY, as applicable, together
with any necessary attachments, or an applicable successor form or (y) in the case of a
Non-U.S. Lender claiming exemption from U.S. federal withholding tax under Section 871(h) or
881(c) of the Internal Revenue Code with respect to payments of “portfolio interest,”
Internal Revenue Service Form W-8BEN (together with a certificate representing that such
Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Internal Revenue Code,
is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Internal
Revenue Code) of the Borrower and is not a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Internal Revenue Code)).
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Avago Credit Agreement
(iv) If a payment made to a Lender hereunder would be subject to United States federal
withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable
reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of
the Internal Revenue Code, as applicable), such Lender shall deliver to the Borrower and the
Agent, at the time or times prescribed by law and at such time or times reasonably
requested by the Borrower or the Agent, such documentation prescribed by applicable law
(including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such
additional documentation reasonably requested by the Borrower or the Agent as may be
necessary for the Borrower or the Agent to comply with its obligations under FATCA, to
determine that such Lender has complied with such Lender’s obligations under FATCA or to
determine the amount to deduct and withhold from such payment. A Lender shall not be
entitled to payment or indemnification under Section 2.14(a) or (c) with respect to Taxes
imposed by the United States by reason of FATCA.
(f) Each Lender shall, upon request by the Borrower or the Agent, deliver to the Borrower or
the applicable governmental authority (with a copy to the Agent), as the case may be, any form or
certificate required in order that any payment made under this Agreement or the Notes to the Lender
or Agent may be made free and clear of, and without deduction or withholding for or on account of,
any Taxes (or to allow any such deduction or withholding to be made at a reduced rate), provided
that the Lender or Agent, as the case may be, is legally entitled to complete, execute and deliver
such form or certificate and, in the case of jurisdictions other than Singapore, the execution and
delivery of such form would not, in the good faith reasonable judgment of such Lender or Agent,
cause such Lender and its Applicable Lending Office to suffer economic, legal, or regulatory
disadvantage. Each Person that shall become a Lender or a participant pursuant to Section 9.07
shall, upon the effectiveness of the related transfer, be required to provide all of the forms,
certifications and statements pursuant to this Section 2.14, provided that in the case of a
participant the obligations of such participant pursuant to clauses (e) or (f) of this Section 2.14
shall be determined as if such participant were a Lender except that such participant shall furnish
all such required forms, certifications and statements to the Lender from which the related
participation shall have been purchased. If any form or document referred to in this subsection
(f) requires the disclosure of information that the Lender or participant reasonably considers to
be confidential, the Lender or participant shall give notice thereof to the Borrower and shall not
be obligated to include in such form or document such confidential information.
(g) Any Lender claiming any additional amounts payable pursuant to this Section 2.14 agrees to
use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions)
to change the jurisdiction of its Eurocurrency Lending Office if the making of such a change would
avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue
and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender.
(h) If the Borrower determines in good faith that a reasonable basis exists for contesting any
taxes for which indemnification has been demanded hereunder, the relevant Lender or the Agent, as
applicable, shall cooperate with the Borrower in challenging such taxes at the Borrower’s expense
if so requested by the Borrower. If an additional payment is made under subsection (a) or (c) above
for the account of any Lender and such Lender, in its sole discretion (exercising good faith),
determines that it has finally and irrevocably received or been granted a credit against or release
or remission for, or refund of, any tax paid or payable by it in respect of or calculated with
reference to the deduction or withholding giving rise to such payment, such Lender shall, to the
extent that it determines that it can do so without prejudice to the retention of the amount of
such credit, relief, remission or refund, pay to the Borrower such amount as the Lender shall, in
its sole discretion (exercising good faith), have determined to be attributable to such deduction
or withholding and which will leave such Lender
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Avago Credit Agreement
(after such payment) in no worse position than it
would have been in if the Borrower had not been required to make such deduction or withholding.
Such Lender shall provide to the Borrower reasonable information regarding any creditable amounts
or refunds it expects to receive, and the expected time for receiving such credit or refund. A
Lender or the Agent shall claim any refund that it determines is available to it, unless it
concludes in its reasonable discretion that it would be adversely affected by
making such a claim. This Section 2.14(h) shall not be construed to require the Agent or any
Lender to disclose tax returns, any information relating to its tax affairs or any computations in
respect thereof.
SECTION 2.15. Sharing of Payments. If any Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of
the Advances owing to it (other than (x) as payment of an Advance made by an Issuing Bank pursuant
to the first sentence of Section 2.03(c) or (y) pursuant to Section 2.11, 2.14, 2.19 or 9.04(c)) in
excess of its pro rata share of payments on account of the Advances obtained by all the Lenders,
such Lender shall forthwith purchase from the other Lenders such participations in the Advances
owing to them as shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such Lender’s ratable share (according to
the proportion of (i) the amount of such Lender’s required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section 2.15 may, to the fullest
extent permitted by law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct creditor of the Borrower
in the amount of such participation.
SECTION 2.16. Evidence of Debt. (a) Each Lender shall maintain in accordance with
its usual practice an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time hereunder in respect of
Advances. The Borrower agrees that upon notice by any Lender to the Borrower (with a copy of such
notice to the Agent) to the effect that a Note is required or appropriate in order for such Lender
to evidence (whether for purposes of pledge, enforcement or otherwise) the Advances owing to, or to
be made by, such Lender, the Borrower shall promptly execute and deliver to such Lender a Note in
substantially the form of Exhibit A hereto, payable to the order of such Lender in a principal
amount equal to the Revolving Credit Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 9.07(d) shall include a control
account, and a subsidiary account for each Lender, in which accounts (taken together) shall be
recorded (i) the date and amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it, (iii) the
amount of any principal or interest due and payable or to become due and payable from the Borrower
to each Lender hereunder and (iv) the amount of any sum received by the Agent from the Borrower
hereunder and each Lender’s share thereof.
(c) Entries made in good faith by the Agent in the Register pursuant to subsection (b) above,
and by each Lender in its account or accounts pursuant to subsection (a) above, shall be prima
facie evidence of the amount of principal and interest due and payable or to become due and payable
from the Borrower to, in the case of the Register, each Lender and, in the case of such account or
accounts, such Lender, under this Agreement, absent manifest error; provided,
however, that the failure of the
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Avago Credit Agreement
Agent or such Lender to make an entry, or any finding that
an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise
affect the obligations of the Borrower under this Agreement.
SECTION 2.17. Use of Proceeds. The proceeds of the Advances (i) made on the
Effective Date shall be available (and the Borrower agrees that it shall use such proceeds) to
prepay any amounts outstanding under the Existing Credit Agreement, if any, and (ii) following the
Effective Date shall be available (and the Borrower agrees that it shall use such proceeds) solely
for general corporate purposes (including permitted acquisitions, investments and commercial paper
backstop) of the Borrower and its Subsidiaries.
SECTION 2.18. Increase in the Aggregate Revolving Credit Commitments. (a) The
Borrower may, at any time, by delivery of an Increase Notice to the Agent, request that the
aggregate amount of the Revolving Credit Commitments be increased by an amount of at least
$25,000,000 or an integral multiple thereof (each a “Commitment Increase”) to be effective
as of a date that is at least 10 days prior to the scheduled Termination Date (the “Increase
Date”) as specified in the related Increase Notice; provided, however that (i)
in no event shall the aggregate amount of the Revolving Credit Commitments at any time exceed
$300,000,000 and (ii) on the date of any request by the Borrower for a Commitment Increase and on
the related Increase Date, before and after giving effect to such Commitment Increase, (x) all
representations and warranties of the Borrower and the Guarantors in the Loan Documents shall be
true and correct in all material respects (unless such representation and warranty is qualified by
materiality, in which case such representation and warranty shall be true and correct in all
respects) as of such date as though made on and as of such date (unless such representation and
warranty relates to an earlier date, in which case such representation and warranty was true and
correct in all material respects as of such earlier date) and (y) no Default or Event of Default
has occurred and is continuing.
(b) The Agent shall promptly notify the Lenders of a request by the Borrower for a Commitment
Increase, which notice shall include (i) the proposed amount of such requested Commitment Increase,
(ii) the proposed Increase Date and (iii) the date by which Lenders wishing to participate in the
Commitment Increase must commit to an increase in the amount of their respective Revolving Credit
Commitments (the “Commitment Date”), which Commitment Date shall be 10 Business Days after
the date on which the Agent received the Increase Notice. No Lender shall have any obligation to
participate in any Commitment Increase. Each Lender that is willing to participate in such
requested Commitment Increase (each an “Increasing Lender”) shall, in its sole discretion,
give written notice to the Agent on or prior to the Commitment Date of the amount (the
“Proposed Increased Commitment”) by which it is willing to increase its Revolving Credit
Commitment. If the Lenders notify the Agent that they are willing to increase the amount of their
respective Revolving Credit Commitments by an aggregate amount that exceeds the amount of the
requested Commitment Increase, the requested Commitment Increase shall be allocated among the
Increasing Lenders in proportion to their respective Proposed Increased Commitments.
(c) Promptly following each Commitment Date, the Agent shall notify the Borrower as to the
amount, if any, by which the Lenders are willing to participate in the requested Commitment
Increase. If the aggregate amount by which the Lenders are willing to participate in any requested
Commitment Increase on any such Commitment Date is less than the requested Commitment Increase,
then the Borrower may extend offers to one or more Eligible Assignees to participate in any portion
of the requested Commitment Increase that has not been committed to by the Lenders as of the
applicable Commitment Date; provided, however, that the Revolving Credit Commitment
of each such Eligible Assignee shall be in an amount of $5,000,000 or more.
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Avago Credit Agreement
(d) On each Increase Date, each Eligible Assignee that accepts an offer to participate in a
requested Commitment Increase in accordance with Section 2.18(c) (each such Eligible Assignee, an
“Assuming Lender”) shall become a Lender party to this Agreement as of such Increase Date
and the Revolving Credit Commitment of each Increasing Lender for such requested Commitment
Increase shall
be so increased by such amount (or by the amount allocated to such Lender pursuant to the last
sentence of Section 2.18(b)) as of such Increase Date; provided, however, that the
Agent shall have received on or before such Increase Date the following, each dated such date:
(i) (A) certified copies of resolutions of the board of directors of the Borrower
approving the Commitment Increase and the corresponding modifications to this Agreement and
(B) an opinion of counsel for the Borrower, in substantially the form of Exhibit G hereto;
(ii) an Assumption Agreement from each Assuming Lender, if any, duly executed by such
Eligible Assignee, the Agent and the Borrower; and
(iii) confirmation from each Increasing Lender of the increase in the amount of its
Revolving Credit Commitment in a writing satisfactory to the Borrower and the Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding
sentence of this Section 2.18(d), the Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) and the Borrower, on or before 12:00 Noon (Hong Kong time), by
facsimile, of the occurrence of the Commitment Increase to be effected on such Increase Date and
shall record in the Register the relevant information with respect to each Increasing Lender and
each Assuming Lender on such date. Each Increasing Lender and each Assuming Lender shall, before
2:00 P.M. (Hong Kong time) on the Increase Date, make available for the account of its Applicable
Lending Office to the Agent at the Agent’s Account, in same day funds, in the case of such Assuming
Lender, an amount equal to such Assuming Lender’s ratable portion of the Borrowings then
outstanding (calculated based on its Revolving Credit Commitment as a percentage of the aggregate
Revolving Credit Commitments outstanding after giving effect to the relevant Commitment Increase)
and, in the case of such Increasing Lender, an amount equal to the excess of (i) such Increasing
Lender’s ratable portion of the Borrowings then outstanding (calculated based on its Revolving
Credit Commitment as a percentage of the aggregate Revolving Credit Commitments outstanding after
giving effect to the relevant Commitment Increase) over (ii) such Increasing Lender’s ratable
portion of the Borrowings then outstanding (calculated based on its Revolving Credit Commitment
(without giving effect to the relevant Commitment Increase) as a percentage of the aggregate
Revolving Credit Commitments (without giving effect to the relevant Commitment Increase). After
the Agent’s receipt of such funds from each such Increasing Lender and each such Assuming Lender,
the Agent will promptly thereafter cause to be distributed like funds to the other Lenders for the
account of their respective Applicable Lending Offices in an amount to each other Lender such that
the aggregate amount of the outstanding Revolving Credit Advances owing to each Lender after giving
effect to such distribution equals such Lender’s ratable portion of the Borrowings then outstanding
(calculated based on its Revolving Credit Commitment as a percentage of the aggregate Revolving
Credit Commitments outstanding after giving effect to the relevant Commitment Increase). In the
event of any such distribution with respect to a Eurocurrency Rate Advance, the Borrower shall be
obligated to reimburse the applicable Lenders in respect thereof pursuant to Section 9.04(c).
SECTION 2.19. Defaulting Lenders. (a) If any Lender becomes, and during the period
it remains, a Defaulting Lender or a Potential Defaulting Lender, if any Letter of Credit is at the
time outstanding, any Issuing Bank may (except, in the case of a Defaulting Lender, to the extent
the Commitments have been fully reallocated pursuant to Section 2.19(b)), by notice to the Borrower
and such Defaulting Lender or Potential Defaulting Lender through the Agent, require the Borrower
to Cash Collateralize the obligations of the Borrower to each Issuing Bank in respect of such
Letter of Credit in an
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Avago Credit Agreement
amount at least equal to 100% of the aggregate amount of the unreallocated
obligations (contingent or otherwise) of such Defaulting Lender or such Potential Defaulting Lender
to be applied pro rata in respect thereof, or to make other arrangements satisfactory to the Agent,
and to any Issuing Bank in their sole
discretion to protect them against the risk of non-payment by such Defaulting Lender or
Potential Defaulting Lender.
(b) If a Lender becomes, and during the period it remains, a Defaulting Lender, the following
provisions shall apply with respect to any outstanding L/C Exposure of such Defaulting Lender:
(i) the L/C Exposure of such Defaulting Lender will, subject to the limitation
in the first proviso below, automatically be reallocated (effective on the day such
Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in
accordance with their respective Commitments; provided that (A) the sum of
each Non-Defaulting Lender’s total Revolving Credit Advances and total L/C Exposure
may not in any event exceed the Commitment of such Non-Defaulting Lender as in
effect at the time of such reallocation and (B) neither such reallocation nor any
payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or
release of any claim the Borrower, the Agent, any Issuing Bank or any other Lender
may have against such Defaulting Lender or cause such Defaulting Lender to be a
Non-Defaulting Lender;
(ii) to the extent that any portion (the “unreallocated portion”) of the
Defaulting Lender’s L/C Exposure cannot be so reallocated, whether by reason of the
first proviso in clause (i) above or otherwise, the Borrower will, not later than
two Business Days after demand by the Agent (at the direction of any Issuing Bank),
(A) Cash Collateralize the obligations of the Borrower to each Issuing Bank in
respect of such L/C Exposure, in an amount at least equal to the aggregate amount of
the unreallocated portion of such L/C Exposure, or (B) make other arrangements
satisfactory to the Agent, and to the Issuing Banks, in their sole discretion to
protect them against the risk of non-payment by such Defaulting Lender; and
(iii) any amount paid by the Borrower or otherwise received by the Agent for
the account of a Defaulting Lender under this Agreement (whether on account of
principal, interest, fees, indemnity payments or other amounts) will not be paid or
distributed to such Defaulting Lender, but will instead be retained by the Agent in
a segregated non-interest bearing account until (subject to Section 2.19(e)) the
termination of the Commitments and payment in full of all obligations of the
Borrower hereunder and will be applied by the Agent, to the fullest extent permitted
by law, to the making of payments from time to time in the following order of
priority: first to the payment of any amounts owing by such Defaulting Lender to
the Agent under this Agreement, second to the payment of any amounts owing by such
Defaulting Lender to any Issuing Bank (pro rata as to the respective amounts owing
to each of them) under this Agreement, third to the payment of post-default interest
and then current interest due and payable to the Lenders hereunder other than
Defaulting Lenders, ratably among them in accordance with the amounts of such
interest then due and payable to them, fourth to the payment of fees then due and
payable to the Non-Defaulting Lenders hereunder, ratably among them in accordance
with the amounts of such fees then due and payable to them, fifth to pay principal
and unreimbursed Letter of Credit disbursements then due and payable to the
Non-Defaulting Lenders hereunder ratably in accordance with the amounts thereof then
due and payable to them, sixth to the ratable payment of other amounts then due and
payable to the Non-Defaulting Lenders, and seventh after the termination of the
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Avago Credit Agreement
Commitments and payment in full of all obligations of the Borrower hereunder, to pay
amounts owing under this Agreement to such Defaulting Lender or as a court of
competent jurisdiction may otherwise direct.
(c) In furtherance of the foregoing, if any Lender becomes, and during the period it remains,
a Defaulting Lender or a Potential Defaulting Lender, subject to Section 2.19(b)(i) above, each
Issuing Bank is hereby authorized by the Borrower (which authorization is irrevocable and coupled
with an interest) to give, in its discretion, through the Agent, Notices of Borrowing pursuant to
Section 2.02 in such amounts and in such times as may be required to (i) reimburse an outstanding
Letter of Credit disbursement and/or (ii) Cash Collateralize the obligations of the Borrower in
respect of outstanding Letters of Credit in an amount at least equal to the aggregate amount of the
obligations (contingent or otherwise) of such Defaulting Lender or Potential Defaulting Lender in
respect of such Letter of Credit.
(d) Anything herein to the contrary notwithstanding, during such period as a Lender is a
Defaulting Lender, such Defaulting Lender will not be entitled to any fees accruing during such
period pursuant to Section 2.04 (without prejudice to the rights of the Non-Defaulting Lenders in
respect of such fees), provided that (i) to the extent that all or a portion of the L/C
Exposure of such Defaulting Lender is reallocated to the Non-Defaulting Lenders pursuant to Section
2.19(b), such fees that would have accrued for the benefit of such Defaulting Lender will instead
accrue for the benefit of and be payable to such Non-Defaulting Lenders, pro rata in accordance
with their respective Commitments, and (ii) to the extent that all or any portion of such L/C
Exposure cannot be so reallocated, such fees will instead accrue for the benefit of and be payable
to each Issuing Bank (and the pro rata payment provisions of Section 2.15 will automatically be
deemed adjusted to reflect the provisions of this Section).
(e) If the Borrower, the Agent, and the Issuing Banks agree in writing in their discretion
that a Lender is no longer a Defaulting Lender or a Potential Defaulting Lender, as the case may
be, the Agent will so notify the parties hereto, whereupon as of the effective date specified in
such notice and subject to any conditions set forth therein (which may include arrangements with
respect to any amounts then held in the segregated account referred to in Section 2.19(b)), such
Lender will, to the extent applicable, purchase at par such portion of outstanding Revolving Credit
Advances of the other Lenders and/or make such other adjustments as the Agent may determine to be
necessary to cause the Revolving Credit Advances and the L/C Exposure of the Lenders to be on a pro
rata basis in accordance with their respective Commitments, whereupon such Lender will cease to be
a Defaulting Lender or Potential Defaulting Lender and will be a Non-Defaulting Lender (and such
Exposure of each Lender will automatically be adjusted on a prospective basis to reflect the
foregoing); provided that no adjustments will be made retroactively with respect to fees
accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender;
and provided, further, that except to the extent otherwise expressly agreed by the
affected parties, no change hereunder from Defaulting Lender or Potential Defaulting Lender to
Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder
arising from such Lender’s having been a Defaulting Lender or Potential Defaulting Lender.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01. Section 2.01 of
this Agreement shall become effective on and as of the first date (the “Effective Date”) on
which the following conditions precedent have been satisfied:
(a) The Agent shall have received this Agreement, executed and delivered by a duly
authorized officer of the Borrower, each Guarantor and each Lender.
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Avago Credit Agreement
(b) (i) The repayment in full of all existing indebtedness under the Existing Credit
Agreement, if any (ii) the termination of all commitments to lend or make other extensions
of credit under the Existing Credit Agreement and (iii) delivery to the Agent of all
documents and
instruments necessary to release all Liens securing the existing indebtedness under the
Existing Credit Agreement or other obligations of the Borrower and its Subsidiaries under
the Existing Credit Agreement being repaid on the Effective Date.
(c) The Borrower shall have paid, to the extent invoiced prior to the Effective Date,
all accrued fees and expenses of the Agent and the Lenders associated with this Agreement
(including, to the extent invoiced prior to the Effective Date, the accrued fees and
expenses of counsel to the Agent).
(d) The Agent shall have received, at least five business days prior to the Effective
Date, all documentation and other information required by regulatory authorities under
applicable “know your customer” and anti-money laundering rules and regulations, including,
without limitation, the Patriot Act, in each case, to the extent requested at least ten
Business Days prior to the Effective Date.
(e) On the Effective Date, the following statements shall be true and the Agent shall
have received for the account of each Lender a certificate signed by a duly authorized
officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on
and as of the Effective Date (unless such representation and warranty relates to an
earlier date, in which case such representation and warranty was true and correct as
of such earlier date), and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each
dated the Effective Date, in form and substance reasonably satisfactory to the Agent and
(except for the Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders to the extent requested by any Lender
pursuant to Section 2.16.
(ii) Certified copies of (A) the resolutions of the Board of Directors of the
Borrower and each Guarantor approving this Agreement and the Notes, and, in the case
of each Guarantor, approving the Guaranty and of all documents evidencing other
necessary corporate action and governmental approvals, if any, with respect to this
Agreement, the Notes and any Guaranty and (B) Certified copies of the resolutions of
the members of the Borrower, International Sales and General IP approving this
Agreement and the Notes and, in the case of International Sales and General IP,
approving the Guaranty and of all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect to this Agreement, the Notes
and any Guaranty.
(iii) True and complete copies of the certificate of incorporation and by-laws
(or equivalent organizational documents) of each the Borrower and each Guarantor.
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Avago Credit Agreement
(iv) A certificate of the Secretary or an Assistant Secretary of the Borrower
and each Guarantor certifying the names and true signatures of the officers of the
Borrower and each Guarantor authorized to sign this Agreement and the Notes and the
other documents to be delivered hereunder.
(v) A favorable opinion of (A) Xxxxxx & Xxxxxxx LLP, special New York counsel
to the Loan Parties, substantially in the form of Exhibit G-1 hereto and (B)
Singaporean counsel to the Loan Parties, substantially in the form of Exhibit G-2
hereto.
(g) The Lenders shall have received from the Borrower, not less than 5 days prior to
the Effective Date, the Historical Financial Statements.
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance. The obligation of
each Lender to make an Advance (other than an Advance made by any Issuing Bank or any Lender
pursuant to Section 2.03(c)) on the occasion of each Borrowing and the obligation of each Issuing
Bank to issue a Letter of Credit shall be subject to the conditions precedent that the Effective
Date shall have occurred and on the date of such Borrowing or such Issuance (as the case may be)
the following statements shall be true (and each of the giving of the applicable Notice of
Borrowing or Notice of Issuance and the acceptance by the Borrower of the proceeds of such
Borrowing or such Issuance shall constitute a representation and warranty by the Borrower that on
the date of such Borrowing or such Issuance such statements are true):
(a) the representations and warranties contained in Section 4.01 are true and correct
in all material respects (unless such representation and warranty is qualified by
materiality, in which case such representation and warranty shall be true and correct in all
respects) on and as of such date, before and after giving effect to such Borrowing or such
Issuance and to the application of the proceeds therefrom, as though made on and as of such
date (unless such representation and warranty relates to an earlier date, in which case such
representation and warranty was true and correct in all material respects as of such earlier
date); provided, that the representation set forth in subsection (h) thereof, shall
be made only on the Effective Date, and
(b) no event has occurred and is continuing, or would result from such Borrowing or
such Issuance or from the application of the proceeds therefrom, that constitutes a Default.
SECTION 3.03. Determinations Under Section 3.01. For purposes of determining
compliance with the conditions specified in Section 3.01, each Lender shall be deemed to have
consented to, approved or accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an
officer of the Agent responsible for the transactions contemplated by this Agreement shall have
received notice from such Lender prior to the date that the Borrower, by notice to the Lenders,
designates as the proposed Effective Date, specifying its objection thereto. The Agent shall
promptly notify the Lenders of the occurrence of the Effective Date.
SECTION 3.04. Additional Conditions to Issuances. In addition to the other
conditions precedent herein set forth, if any Lender becomes, and during the period it remains, a
Defaulting Lender or a Potential Defaulting Lender, no Issuing Bank will be required to issue any
Letter of Credit or to amend any outstanding Letter of Credit to increase the face amount thereof,
alter the drawing terms thereunder or extend the expiry date thereof, unless such Issuing Bank is
satisfied that any exposure that would result therefrom is eliminated or fully covered by the
Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof
satisfactory to such Issuing Bank. If any Issuing Bank issues a Letter of Credit or amends any
outstanding Letter of Credit to extend the expiry date
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Avago Credit Agreement
thereof, in either case, resulting in such
Letter of Credit having an expiry date later than five Business Days before the Maturity Date, such
Issuing Bank may request the Borrower to, and the Borrower shall, within two Business Days of such
request, deposit in the L/C Cash Deposit Account, an amount equal to 105% of such Letter of Credit.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Loan Parties. The Borrower and
each Guarantor represents and warrants as follows:
(a) Corporate Status. Each Loan Party is duly organized, validly existing and
in good standing (or appropriate equivalent) under the laws of its jurisdiction of
organization.
(b) Corporate Power and Authority. The execution, delivery and performance by
each Loan Party of this Agreement and the other Loan Documents to be delivered by it, and
the consummation of the transactions contemplated hereby, are within such Loan Party’s
corporate powers, have been duly authorized by all necessary corporate action, and do not
contravene (i) such Loan Party’s charter or by-laws or (ii) any law or any contractual
restriction binding on or affecting such Loan Party.
(c) Approvals. No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any other third party is
required for the due execution, delivery and performance by each Loan Party of this
Agreement or the other Loan Documents to be delivered by such Loan Party.
(d) Binding Obligation. This Agreement has been, and each of the other Loan
Documents to be delivered by each Loan Party when delivered hereunder will have been, duly
executed and delivered by such Loan Party, as applicable. This Agreement is, and each of
the Notes when delivered hereunder will be, the legal, valid and binding obligation of the
Loan Party party thereto enforceable against such Loan Party in accordance with their
respective terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general equitable principles (whether enforcement is
sought by proceedings in equity or law).
(e) Litigation. There is no pending or, to the Borrower’s knowledge, overtly
threatened action, suit, investigation, litigation or administrative or judicial
proceedings, affecting Holdings or any of its Subsidiaries before any court, governmental
agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect
or (ii) purports to affect the legality, validity or enforceability of the Loan Documents or
the consummation of the transactions contemplated hereby.
(f) Environmental Matters. Each of Borrower and its Subsidiaries (other than
Immaterial Subsidiaries) is and has been in compliance with all Environmental Laws, which
compliance includes obtaining, maintaining and complying with all permits, licenses and
other authorizations required under all Environmental Laws to carry on its business, except
to the extent failure to comply would not (either individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect.
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Avago Credit Agreement
(g) Compliance with ERISA. (A) Except as otherwise would not (either
individually or in the aggregate) reasonably be expected to have a Material Adverse Effect:
(i) each of the Borrower and its ERISA Affiliates is in compliance with the presently
applicable provisions of ERISA and the Code with respect to each Plan and Multiemployer
Plan, and the terms of each Plan, and (ii) no ERISA Event has occurred or is reasonably
expected to occur.
(B) All Foreign Plans are in compliance with, and have been established, administered
and operated in accordance with, the terms of such Foreign Plans and applicable law, except
for any failure to so comply, establish, administer or operate the Foreign Plans as would
not (either individually or in the aggregate) reasonably be expected to have a Material
Adverse Effect. All contributions or other payments which are due with respect to each
Foreign Plan have been made in full and there are no funding deficiencies thereunder, except
to the extent any such events would not (either individually or in the aggregate) reasonably
be expected to have a Material Adverse Effect.
(h) Material Adverse Change. As of the Effective Date, since October 31, 2010,
there has been no Material Adverse Change.
(i) True and Complete Disclosure. (A) None of the factual written information
and data (taken as a whole) heretofore or contemporaneously furnished by or on behalf of
Parent or the Borrower, any of the Subsidiaries or any of their respective authorized
representatives in writing to the Agent and/or any Lender on or before the Effective Date
(including (i) the Information Memorandum and (ii) all information contained in the Loan
Documents) for purposes of or in connection with this Agreement or any transaction
contemplated herein contained any untrue statement or omitted to state any material fact
necessary to make such information and data (taken as a whole) not materially misleading at
such time in light of the circumstances under which such information or data was furnished,
it being understood and agreed that for purposes of this Section 4.01(i), such factual
information and data shall not include projections and pro forma financial information.
(B) The projections and pro forma financial information contained in the information
and data referred to in clause (A) above were based on good faith estimates and assumptions
believed by such Persons to be reasonable at the time made, it being recognized by the
Lenders that such projections as to future events are not to be viewed as facts and that
actual results during the period or periods covered by any such projections may differ from
the projected results.
(j) Financial Condition; Financial Statements. The Historical Financial
Statements fairly present, in all material respects, the Consolidated financial condition of
the Borrower and its Subsidiaries as at such date and the Consolidated results of the
operations of the Borrower and its Subsidiaries for the period ended on such date, all in
accordance with GAAP consistently applied.
(k) Margin Regulations. No Loan Party is engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the meaning of, and in
violation of, Regulation U issued by the Board of Governors of the Federal Reserve System),
and no proceeds of any Advance will be used to purchase or carry any margin stock or to
extend credit to others for the purpose of purchasing or carrying any margin stock.
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Avago Credit Agreement
(l) Investment Company Act. No Loan Party is an “investment company”, or a
company “controlled” by an “investment company”, within the meaning of the Investment
Company Act of 1940, as amended.
(m) Solvency. On the Effective Date (after giving effect to the transactions
contemplated hereby, including any Advances made on the Effective Date), the Borrower on a
consolidated basis with its Subsidiaries, taken as a whole, will be Solvent.
ARTICLE V
COVENANTS OF THE LOAN PARTIES
SECTION 5.01. Affirmative Covenants. So long as any Advance shall remain unpaid, and
any Letter of Credit is outstanding or any Lender shall have any Commitment hereunder, each Loan
Party will:
(a) Compliance with Laws. Comply, and cause each of its Subsidiaries to comply
with all applicable laws, rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA, Environmental Laws, the Patriot Act and any anti-money
laundering, counter-terrorism financing, trade or economic sanctions laws and regulations,
except to the extent such failure to comply could reasonably be expected to have a Material
Adverse Effect.
(b) Payment of Taxes. Pay and discharge, and cause each of its Subsidiaries to
pay and discharge, before the same shall become delinquent, (i) all taxes, assessments and
governmental charges or levies imposed upon it or upon its property, income or profits and
(ii) all lawful claims that, if unpaid, might by law become a Lien (other than Liens
permitted hereunder pursuant to Section 5.02(a) upon its property; provided,
however, that neither the Borrower nor any of its Subsidiaries shall be required to
pay or discharge any such tax, assessment, charge or claim (x) that is being contested in
good faith and by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to its property and
becomes enforceable against its other creditors or (y) the failure to make any such payment
would not (either individually or in the aggregate) reasonably be expected to have a
Material Adverse Effect.
(c) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries
(other than Immaterial Subsidiaries) to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties in the same
general areas in which the Borrower or such Subsidiary operates.
(d) Preservation of Corporate Existence. Preserve and maintain, and cause each
of its Subsidiaries (other than Immaterial Subsidiaries) to preserve and maintain, its
corporate existence, rights (charter and statutory) and franchises; provided,
however, that the Borrower and its Subsidiaries may (i) consummate any merger or
consolidation or other transaction permitted under Section 5.02(b), (ii) sell, transfer, or
otherwise dispose of, any Subsidiary of the Borrower if permitted under Section 5.02(e),
(iii) dissolve or terminate the existence of any Subsidiary of the Borrower possessing
immaterial assets or liabilities or no continuing business purpose, or (iv) dissolve or
terminate the existence of any Subsidiary if in the Borrower’s determination (w) the
preservation thereof is no longer desirable in the conduct of the business of the Borrower
and its Subsidiaries, taken as a whole and (x) the loss thereof is not materially
disadvantageous to the
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Avago Credit Agreement
Borrower and its Subsidiaries, taken as a whole, and provided
further that neither the Borrower nor any of its Subsidiaries shall be required to
preserve any right or franchise if in the Borrower’s determination (y) the preservation
thereof is no longer desirable in the conduct of the business of the Borrower or such
Subsidiary, as the case may be and (z) the loss thereof is not materially disadvantageous to
the Borrower or such Subsidiary.
(e) Visitation Rights. At any reasonable time during normal business hours and
from time to time upon reasonable notice, permit the Agent or any of the Lenders or any
agents or
representatives thereof, to examine and make copies of and abstracts from the records
and books of account of, and visit the properties of, the Borrower and any of its
Subsidiaries, and to discuss the affairs, finances and accounts of the Borrower and any of
its Subsidiaries with any of their officers or directors and with their independent
certified public accountants, subject to applicable regulations of the Federal government
relating to classified information and reasonable security and safety regulations of the
Borrower; provided that the Borrower shall bear the cost and expense of one such
visit per calendar year as well as any such visits after and during the continuance of an
Event of Default.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to keep, proper
books of record and account, in which full and correct entries shall be made of all
financial transactions and the assets and business of the Borrower and each such Subsidiary
materially in accordance with, and to the extent required by, GAAP.
(g) Maintenance of Properties. Maintain and preserve, and cause each of its
Subsidiaries to maintain and preserve, all of its properties that are material to the
conduct of its business in good working order and condition, ordinary wear and tear
excepted, in accordance with customary and prudent business practices for similar
businesses, except to the extent that failure to do so would not (either individually or in
the aggregate) reasonably be expected to have a Material Adverse Effect.
(h) Transactions with Affiliates. Conduct, and cause each of the Subsidiaries
to conduct, all transactions with any of their Affiliates (other than the Borrower and its
Subsidiaries) on terms that are fair and reasonable and no less favorable to the Borrower or
such Subsidiary in any material respect than it would obtain in a comparable arm’s-length
transaction with a Person that is not an Affiliate; provided that the foregoing
restrictions shall not apply to (i) the payment of customary fees to the Sponsors for
management, consulting and financial services rendered to Holdings, the Borrower and the
Subsidiaries and customary investment banking fees paid to the Sponsors for services
rendered to Holdings, the Borrower and the Subsidiaries in connection with divestitures,
acquisitions, financings and other transactions, (ii) customary fees paid to members of the
board of directors of the Borrower and the Subsidiaries and (iii) transactions permitted by
Section 5.02(i).
(i) Use of Proceeds. Use the proceeds of any Advance (i) on the Effective Date
to repay any amounts outstanding under the Existing Credit Agreement, if any and (ii)
following the Effective Date, for general corporate purposes of the Borrower and its
Subsidiaries, including permitted acquisitions, investments and commercial paper backstop.
(j) Reporting Requirements. Furnish to the Agent, who shall furnish to the
Lenders:
(i) as soon as available and in any event on or before the date on which such
financial statements are required to be filed with the SEC with respect to each of
the first three quarterly accounting periods in each fiscal year of the Borrower
(or, if such
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Avago Credit Agreement
financial statements are not required to be filed with the SEC, on or
before the date that is 60 days after the end of each such quarterly accounting
period), the unaudited Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such quarter and unaudited Consolidated statements of
income and cash flows of the Borrower and its Subsidiaries for the period commencing
at the end of the previous fiscal year and ending with the end of such quarter, duly
certified (subject to year-end audit adjustments and absence of footnote
disclosures) by the chief financial officer, treasurer or other authorized financial
officer of the Borrower as having been prepared in accordance with
GAAP and certificates of the chief financial officer or other authorized
financial officer of the Borrower as to compliance with the terms of this Agreement
and setting forth in reasonable detail the calculations necessary to demonstrate
compliance with Section 5.03 (such financial statements and certificates, the
“Section 5.01(j)(i) Financial Statements and Certificates”);
provided that in the event of any change in GAAP used in the preparation of
such financial statements, the Borrower shall also provide, if necessary for the
determination of compliance with Section 5.03, a statement of reconciliation
conforming such financial statements to Initial GAAP; and provided further,
that so long as (A) Parent only conducts, transacts or otherwise engages in, or
commits to conduct, transact or otherwise engage in, any business or operations
incidental to its ownership of the Stock and Stock Equivalents of Holdings, any
public offering of its Stock and, subject to Section 5.02(j), intercompany debt
between Parent and its Subsidiaries, (B) Parent does not incur, create, assume or
suffer to exist any Lien or Debt or other liabilities or financial obligations
(other than those described in clause (A) above), except (x) nonconsensual
obligations imposed by operation of law or (y) obligations with respect to its Stock
and Stock Equivalents, (C) Parent does not own, lease manage or otherwise operate
any properties or assets (including cash and cash equivalents) other than the
ownership of Stock or Stock Equivalents of Holdings and its Subsidiaries and (D)
Borrower has not previously complied with this Section 5.01(j)(i) by delivering
Section 5.01(j)(i) Financial Statements and Certificates, the Borrower shall be
permitted to furnish, in lieu of the Section 5.01(j)(i) Financial Statements and
Certificates, the Consolidated balance sheet of Parent and its Subsidiaries as of
the end of such quarter and Consolidated statements of income and cash flows of
Parent and its Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter duly certified (subject to
year-end audit adjustments and absence of footnote disclosures) by the chief
financial officer, treasurer or other authorized financial officer of Parent as
having been prepared in accordance with GAAP, together with (I) a Compliance
Certificate of the chief financial officer or other authorized financial officer of
the Borrower as to compliance with the terms of this Agreement and setting forth
calculations reasonably necessary to demonstrate compliance with Section 5.03 and
(II) a certificate of the chief financial officer or other authorized financial
officer of Parent as to compliance with clauses (A), (B) and (C) of this proviso (it
being understood that the filing of Parent’s Report on Form 10-Q with the SEC shall
satisfy the requirements of this proviso for the delivery of Consolidated balance
sheets and Consolidated statements of income and cash flows);
(ii) as soon as available and in any event on or before the date on which such
financial statements are required to be filed with the SEC with respect to each
fiscal year (or, if such financial statements are not required to be filed with the
SEC, on or before the date that is 120 days after the end of each such fiscal year),
a copy of the annual audit report for such year for the Borrower and its
Subsidiaries,
containing the Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such fiscal year and Consolidated statements of income
and cash flows of the Borrower and its Subsidiaries
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Avago Credit Agreement
for such fiscal year, in each
case accompanied by an opinion unqualified as to scope and going concern by
PricewaterhouseCoopers LLP or other independent certified public accountants
reasonably acceptable to the Required Lenders and a Compliance Certificate of the
chief financial officer or other authorized financial officer of the Borrower as to
compliance with the terms of this Agreement and setting forth in reasonable detail
the calculations necessary to demonstrate compliance with Section 5.03, provided
that in the event of any change in GAAP used in the preparation of such financial
statements, the Borrower shall also provide, if necessary for the determination of
compliance with
Section 5.03, a statement of reconciliation conforming such financial
statements to Initial GAAP (it being understood that the filing of the Borrower’s
Report on Form 10-K with the SEC shall satisfy the requirements of this Section
5.01(j)(ii) so long as the information required to be contained in such Report is
substantially the same as that required under this clause (ii));
(iii) as soon as available and in any event on or before the date on which such
financial statements are required to be filed with the SEC with respect to each
fiscal year (or, if such financial statements are not required to be filed with the
SEC, on or before the date that is 120 days after the end of each such fiscal year),
a copy of the annual audit report for such year for Parent and its Subsidiaries,
containing the Consolidated balance sheet of Parent and its Subsidiaries as of the
end of such fiscal year and Consolidated statements of income and cash flows of
Parent and its Subsidiaries for such fiscal year, in each case accompanied by an
opinion unqualified as to scope and going concern by PricewaterhouseCoopers LLP or
other independent certified public accountants reasonably acceptable to the Required
Lenders (it being understood that the filing of Parent’s Report on Form 10-K with
the SEC shall satisfy the requirements of this Section 5.01(j)(iii) so long as the
information required to be contained in such Report is substantially the same as
that required under this clause (iii));
(iv) as soon as possible and in any event within seven days after the
occurrence of any Default of which the Borrower has knowledge, a statement of the
chief financial officer or other authorized financial officer of the Borrower
setting forth details of such Default and the action that the Borrower has taken and
proposes to take with respect thereto;
(v) promptly after the sending or filing thereof, copies of all reports that
the Borrower sends to any of its securityholders, and copies of all reports and
registration statements that the Borrower or any Subsidiary files with the SEC or
any national securities exchange;
(vi) promptly after the commencement thereof, notice of all actions and
proceedings before any court, governmental agency or arbitrator affecting the
Borrower or any of its Subsidiaries of the type described in Section 4.01(e);
(vii) promptly after the commencement thereof, notice of any Environmental
Action that would be reasonably likely to have a Material Adverse Effect; and
(viii) such other information respecting the Borrower or any of its
Subsidiaries as any Lender through the Agent may from time to time reasonably
request.
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Avago Credit Agreement
SECTION 5.02. Negative Covenants. So long as any Advance shall remain unpaid, and
any Letter of Credit is outstanding or any Lender shall have any Commitment hereunder, no Loan
Party will:
(a) Liens. Create or suffer to exist, or permit any of its Subsidiaries to
create or suffer to exist, any Lien on or with respect to any of its properties, whether now
owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any
right to receive income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real property or equipment acquired or
held by the Borrower or any Subsidiary in the ordinary course of business to secure
the purchase price of such property or equipment or to secure Debt incurred solely
for the purpose of financing the acquisition (including Liens, if any, in respect of
leases that have been, or should be, in accordance with GAAP in effect on the date
hereof, recorded as capital leases and any Liens placed on such property or
equipment within 180 days after the acquisition of such property or equipment) of
such property or equipment, or Liens existing on such property or equipment at the
time of its acquisition (other than any such Liens created in contemplation of such
acquisition that were not incurred to finance the acquisition of such property) or
extensions, renewals or replacements of any of the foregoing for the same or a
lesser amount, provided, however, that no such Lien shall extend to
or cover any properties of any character other than the real property or equipment
being acquired (and any accessions or additions thereto, and proceeds thereof), and
no such extension, renewal or replacement shall extend to or cover any properties
not theretofore subject to the Lien being extended, renewed or replaced, provided
further that the aggregate principal amount of indebtedness secured by the Liens
referred to in this clause (ii) shall not exceed $50,000,000
(iii) the Liens existing on the Effective Date and described on Schedule
5.02(a) hereto,
(iv) Liens on property of a Person existing at the time such Person is merged
into or consolidated with the Borrower or any Subsidiary of the Borrower or becomes
a Subsidiary of the Borrower; provided that such Liens were not created in
contemplation of such merger, consolidation or acquisition and do not extend to any
assets other than those of the Person so merged into or consolidated with the
Borrower or such Subsidiary or acquired by the Borrower or such Subsidiary,
(v) Liens securing contingent obligations in respect of acceptances, letters of
credit, bank guarantees, surety bonds or similar extensions of credit,
(vi) Liens that are within the general parameters customary in the industry and
incurred in the ordinary course of business securing obligations under Hedge
Agreements designed solely to protect the Borrower or any of its Subsidiaries from
fluctuations in interest rates, currencies or the price of commodities,
(vii) Liens on cash as contemplated by Section 2.19 or 6.02,
(viii) the replacement, extension or renewal of any Lien permitted by clause
(iii) or (iv) above upon or in the property theretofore subject thereto or the
replacement,
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Avago Credit Agreement
extension or renewal (without increase in the principal amount or
change in any direct or contingent obligor) of the Debt secured thereby; and
(ix) other Liens so long as the aggregate principal amount of the obligations
so secured does not exceed $50,000,000 at any time outstanding.
(b) Mergers. Merge or consolidate with or into any Person, or permit any of
its Subsidiaries (other than Immaterial Subsidiaries) to do so, except (i) that any
Subsidiary of the Borrower may merge, consolidate, amalgamate, or combine with or into any
other Subsidiary of the Borrower that is a Guarantor, (ii) any Subsidiary of the Borrower
may merge, consolidate, amalgamate, or combine with or into the Borrower and (iii) any
Subsidiary of the Borrower and
the Borrower may merge, consolidate, amalgamate, or combine with or into any other
Person if, as a result of one or a series of transactions, the surviving or resulting entity
is or becomes a Subsidiary or, if the Borrower is a party to such transaction, the surviving
entity is the Borrower, provided, in each case, that no Default shall have occurred
and be continuing at the time of such proposed transaction or would result therefrom.
(c) Accounting Changes. Make or permit, or permit any of its Subsidiaries to
make or permit, any change in accounting policies or reporting practices, except as required
or permitted by GAAP.
(d) Subsidiary Debt. Permit any of its non-Guarantor Subsidiaries to create or
suffer to exist, any Debt other than:
(i) Debt owed under this Agreement or the Notes,
(ii) Debt existing on the Effective Date and described on Schedule 5.02(d)
hereto (the “Existing Debt”), and any Debt extending the maturity of, or
refunding or refinancing, in whole or in part, the Existing Debt, provided
that the principal amount of such Existing Debt shall not be increased above the
principal amount thereof outstanding immediately prior to such extension, refunding
or refinancing, and the direct and contingent obligors therefor shall not be
changed, as a result of or in connection with such extension, refunding or
refinancing,
(iii) Debt in amounts permitted by Sections 5.02(a)(ii) and (ix),
(iv) Debt owed to the Borrower or a wholly owned direct or indirect Subsidiary
of the Borrower,
(v) obligations of any Subsidiary of the Borrower under any Hedge Agreements
entered into in the ordinary course of business to protect the Borrower and its
Subsidiaries against fluctuations in interest or exchange rates,
(vi) contingent obligations in respect of acceptances, letters of credit, bank
guarantees, surety bonds or similar extensions of credit,
(vii) Debt of a Person at the time such Person is merged into or consolidated
with any Subsidiary of the Borrower or becomes a Subsidiary of the Borrower;
provided that such Debt was not created in contemplation of such merger,
consolidation or acquisition, and any Debt extending the maturity of, or refunding
or refinancing, in whole or in part, such Debt, provided further
that the principal amount of such Debt shall not be
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Avago Credit Agreement
increased above the principal
amount thereof outstanding immediately prior to such extension, refunding or
refinancing, and the direct and contingent obligors therefor shall not be changed
(other than as a result of merger or consolidation), as a result of or in connection
with such extension, refunding or refinancing,
(viii) endorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business; and
(ix) other unsecured Debt of such non-Guarantor Subsidiaries in an aggregate
amount not to exceed $75,000,000.
(e) Sales of Assets. Sell, lease, transfer or otherwise dispose of, or permit
any of its Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets, or
grant any option or other right to any other Person to purchase, lease or otherwise acquire
any assets of the Borrower or any of its Subsidiaries, except (i) sales of inventory in the
ordinary course of its business or sales or other dispositions of scrap, surplus, outdated,
superseded, replaced or obsolete material or equipment or sales of other assets in the
ordinary course of its business that are no longer used, (ii) in or in connection with a
transaction authorized by Section 5.02(b), (iii) sales or dispositions between or among the
Borrower and its wholly-owned Subsidiaries that are Guarantors, (iv) sales of property in
connection with a Permitted Sale Leaseback provided that the net present value of the
aggregate rental obligations under such leases or contracts (discounted at the implied
interest rate of such lease or contract) does not exceed 15% of the Consolidated total
assets of the Borrower and its Subsidiaries measured as of October 31, 2010 or, if greater,
15% of Consolidated total assets of the Borrower and its Subsidiaries as of the most recent
fiscal quarter end for which financial statements of the Borrower are delivered pursuant to
Section 5.01(j) hereof and (v) sales or other dispositions of assets in an amount not to
exceed, after the date hereof, an amount equal to 15% of the Consolidated total assets of
the Borrower and its Subsidiaries measured as of October 31, 2010 or, if greater, 15% of
Consolidated total assets of the Borrower and its Subsidiaries as of the most recent fiscal
quarter end for which financial statements of the Borrower are delivered pursuant to Section
5.01(j).
(f) Change in Nature of Business. Make, or permit any of its Subsidiaries to
make, any material change in the nature of its business from the business as carried on by
the Borrower and its Subsidiaries at the date hereof.
(g) Payment Restrictions Affecting Subsidiaries. Directly or indirectly, enter
into or suffer to exist, or permit any of its Subsidiaries to enter into or suffer to exist,
any agreement or arrangement limiting the ability of any of its Subsidiaries to declare or
pay dividends or other distributions in respect of its capital stock (whether through a
covenant restricting dividends, a financial covenant or otherwise), except (i) this
Agreement, (ii) any agreement or instrument evidencing Existing Debt or, to the extent such
agreement or arrangement could not reasonably be expected to impair the Borrower’s ability
to repay the Obligations as and when due, any agreement or instrument evidencing Debt
permitted under Section 5.02(d) and (iii) any agreement in effect at the time such
Subsidiary becomes a Subsidiary of the Borrower, so long as such agreement was not entered
into solely in contemplation of such Person becoming a Subsidiary of the Borrower.
(h) Activities of Holdings. Notwithstanding anything to the contrary in this
Agreement or any other Loan Document, Holdings shall not (i) conduct, transact or otherwise
engage in, or commit to conduct, transact or otherwise engage in, any business or operations
other than those incidental to its ownership of the Stock and Stock Equivalents of the
Borrower, any
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Avago Credit Agreement
public offering of its Stock and any transaction that Holdings is permitted to
enter into or consummate under this Section 5.02, (ii) incur, create, assume or suffer to
exist any Lien or Debt or other liabilities or financial obligations (other than those
described in clause (i) above), except (A) nonconsensual obligations imposed by operation of
law, (B) pursuant to the Loan Documents to which it is a party or (C) obligations with
respect to its Stock and Stock Equivalents, or (iii) own, lease manage or otherwise operate
any properties or assets (including cash (other than cash received in connection with
dividends made by the Borrower in accordance with Section 5.02(i)(iii), (iv) or (v) pending
application in the manner contemplated by said Section) and cash equivalents) other than the
ownership of Stock or Stock Equivalents of the Borrower.
(i) Dividends. No Loan Party will declare or pay any dividends (other than
dividends payable solely in its Stock) or return any capital, or permit any of its
Subsidiaries to pay any dividends (other than dividends payable solely in its Stock) or
return any capital, to its stockholders or make any other distribution, payment or delivery
of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise
acquire, directly or indirectly, for consideration, any shares of any class of its Stock or
Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or
hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit
any of the Subsidiaries to purchase or otherwise acquire for consideration any Stock or
Stock Equivalents of the Borrower, now or hereafter outstanding (all of the foregoing
“dividends”), other than (i) dividends paid to the Borrower or a Guarantor, (ii) dividends
paid from a non-Guarantor Subsidiary to another non-Guarantor Subsidiary, (iii) dividends
paid by U.S. Inc. to its direct parent, which dividends are immediately paid by such parent
to a Loan Party, (iv) dividends paid to Holdings or its Subsidiaries in connection with tax
planning in the ordinary course of business and (v) other dividends so long as, at the time
of and immediately after giving effect to such dividend, (A) the Consolidated Debt to EBITDA
Ratio (on a pro forma basis after having given effect to such dividend), is less than 2.00
to 1.00, (B) no Default or Event of Default exists or would result from such dividend and
(C) Parent shall not be in default in the payment of any amount in respect of any Debt or
any other monetary liability in an amount of $35,000,000 or more.
(j) Subordinated Indebtedness. All Debt owing from any Loan Party to Parent
shall be subordinated to the obligations of such Loan Party hereunder on terms reasonably
satisfactory to the Agent, which terms, in any event, shall prohibit any payments with
respect to such Debt after and during the continuance of an Event of Default hereunder.
SECTION 5.03. Financial Covenants. So long as any Advance shall remain unpaid, and
Letter of Credit is outstanding or any Lender shall have any Commitment hereunder, the Borrower
will:
(a) Debt to EBITDA Ratio. Maintain, as of the end of each fiscal quarter, a
Consolidated Debt to EBITDA Ratio of not greater than 2.50 to 1.00.
(b) Interest Coverage Ratio. Maintain, as of the end of each fiscal quarter, a
ratio of (i) Consolidated EBITDA of the Borrower and its Consolidated Subsidiaries for the
period of four fiscal quarters then ended to (ii) Consolidated Interest Expense during such
period by the Borrower and its Consolidated Subsidiaries, of not less than 3.50 to 1.00;
provided, that for purposes of calculating Interest Expense for the Borrower and its
Subsidiaries for any period, the Interest Expense of any Person (or assets or division of
such Person) acquired by the Borrower or any of its Subsidiaries during such period shall be
included on a pro forma basis for such period (assuming the consummation of such acquisition
occurred on the first day of such period).
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Avago Credit Agreement
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events (“Events of
Default”) shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance when the same becomes
due and payable; or the Borrower shall fail to pay any interest on any Advance or make any
other payment of fees or other amounts payable under this Agreement or any Note within three
Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by any Loan Party herein or by any Loan Party
(or any of their respective officers) in connection with this Agreement shall prove to have
been incorrect in any material respect when made; or
(c) (i) Any Loan Party shall fail to perform or observe any term, covenant or agreement
contained in Section 2.19(b)(ii)(A), 5.01(d), (h) or (i), 5.01(j)(iv) or (vi), 5.02 or 5.03,
(ii) any Loan Party shall fail to perform or observe any term, covenant or agreement
contained in Section 5.01(j)(i), (ii) or (iii) and such failure shall remain unremedied for
15 days after written notice thereof shall have been given to the Borrower by the Agent or
any Lender or (iii) any Loan Party shall fail to perform or observe any other term, covenant
or agreement contained in this Agreement on its part to be performed or observed if such
failure shall remain unremedied for 30 days after written notice thereof shall have been
given to the Borrower by the Agent or any Lender; or
(d) Holdings or any of its Subsidiaries shall fail to pay any principal of or premium
or interest on any Debt that is outstanding in a principal or, in the case of Hedge
Agreements net amount, of at least $35,000,000 in the aggregate (but excluding Debt
outstanding hereunder) of Holdings or such Subsidiary (as the case may be), when the same
becomes due and payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable grace period, if
any, specified in the agreement or instrument relating to such Debt; or any other event
shall occur or condition shall exist under any agreement or instrument relating to any such
Debt and shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to
be due and payable, or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), required to be purchased or defeased (other
than cash collateralization of letter of credit obligations), or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each case prior to the stated
maturity thereof; or
(e) Holdings or any of its Subsidiaries shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts generally, or shall
make a general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against Parent or any of its Subsidiaries (other than Immaterial
Subsidiaries) seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief
of debtors, or seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it (but not
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Avago Credit Agreement
instituted
by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days,
or any of the actions sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or for any substantial part of its property) shall occur; or Parent
or any of its Subsidiaries (other than Immaterial Subsidiaries) shall take any corporate
action to authorize any of the actions set forth above in this subsection (e); or
(f) Judgments or orders for the payment of money in excess of $35,000,000 in the
aggregate, to the extent not covered by a valid and binding policy of insurance between the
defendant and the insurer covering payment thereof, shall be rendered against Holdings or
any of its Subsidiaries and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be any period of 30 consecutive
days
during which a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(g) a Change of Control shall have occurred;
(h) Holdings or any of its ERISA Affiliates shall incur, or shall be reasonably likely
to incur liability which could reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect as a result of one or more of the following: (i) the
occurrence of any ERISA Event; or (ii) the partial or complete withdrawal of Holdings or any
of its ERISA Affiliates from, or the termination, insolvency, reorganization or windup of, a
Foreign Plan which is a defined benefit pension plan; or
(i) Any Guaranty provided by any Guarantor or any material provision thereof shall
cease to be in full force or effect or any such Guarantor thereunder or any Loan Party shall
deny or disaffirm in writing any such Guarantor’s obligations under any such Guaranty or
(ii) this Agreement or any other Loan Document ceases to be in full force or effect or any
Loan Party shall deny or disaffirm in writing any such Loan Party’s obligations under any
such Loan Document;
then, and in any such event, the Agent (i) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrower, declare the obligation of each Lender to make Advances
(other than Advances by an Issuing Bank or a Lender pursuant to Section 2.03(c)) and of the Issuing
Banks to issue Letters of Credit to be terminated, whereupon the same shall forthwith terminate,
and (ii) shall at the request, or may with the consent, of the Required Lenders, by notice to the
Borrower, declare the Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the Borrower;
provided, however, that in the event of an actual or deemed entry of an order for
relief with respect to the Borrower under any Bankruptcy Law, (A) the obligation of each Lender to
make Advances (other than Advances by an Issuing Bank or a Lender pursuant to Section 2.03(c)) and
of the Issuing Banks to issue Letters of Credit shall automatically be terminated and (B) the
Advances, all such interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default. If any Event
of Default shall have occurred and be continuing, the Agent may with the consent, or shall at the
request, of the Required Lenders, irrespective of whether it is taking any of the actions described
in Section 6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such demand the
Borrower will, (a)
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pay to the Agent on behalf of the Lenders in same day funds at the Agent’s
office designated in such demand, for deposit in the L/C Cash Deposit Account, an amount equal to
105% of the aggregate Available Amount of all Letters of Credit then outstanding or (b) make such
other arrangements in respect of the outstanding Letters of Credit as shall be acceptable to the
Required Lenders and not more disadvantageous to the Borrower than clause (a); provided,
however, that in the event of an actual or deemed entry of an order for relief with respect
to the Borrower under any Bankruptcy Law, an amount equal to the aggregate Available Amount of all
outstanding Letters of Credit shall be immediately due and payable to the Agent for the account of
the Lenders without notice to or demand upon the Borrower, which are expressly waived by the
Borrower, to be held in the L/C Cash Deposit Account. If at any time an Event of Default is
continuing the Agent determines that any funds held in the L/C Cash Deposit Account are subject to
any right or claim of any Person other than the Agent and the Lenders or that the total amount of
such funds is less than the aggregate Available Amount of all Letters of Credit, the
Borrower will, forthwith upon demand by the Agent, pay to the Agent, as additional funds to be
deposited and held in the L/C Cash Deposit Account, an amount equal to the excess of (a) such
aggregate Available Amount over (b) the total amount of funds, if any, then held in the L/C Cash
Deposit Account that the Agent determines to be free and clear of any such right and claim. Upon
the drawing of any Letter of Credit, to the extent funds are on deposit in the L/C Cash Deposit
Account, such funds shall be applied to reimburse the Issuing Banks to the extent permitted by
applicable law. After all such Letters of Credit shall have expired or been fully drawn upon and
all other obligations of the Borrower hereunder and under the Notes shall have been paid in full,
the balance, if any, in such L/C Cash Deposit Account shall be returned to the Borrower.
ARTICLE VII
GUARANTY
SECTION 7.01. Unconditional Guaranty. The Guarantors hereby absolutely,
unconditionally and irrevocably guarantee the punctual payment when due, whether at scheduled
maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all
obligations of the Borrower now or hereafter existing under or in respect of this Agreement and the
Notes (including, without limitation, any extensions, modifications, substitutions, amendments or
renewals of any or all of the foregoing obligations), whether direct or indirect, absolute or
contingent, and whether for principal, interest, premiums, fees, indemnities, contract causes of
action, costs, expenses or otherwise (such obligations being the “Obligations”), and agree
to pay any and all expenses (including, without limitation, reasonable fees and expenses of
counsel) incurred by the Agent or any Lender in enforcing any rights under this Agreement. Without
limiting the generality of the foregoing, each Guarantor’s liability shall extend to all amounts
that constitute part of the Obligations and would be owed by the Borrower to the Agent or any
Lender under or in respect of this Agreement and the Notes but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Borrower. This Guaranty constitutes a guaranty of payment and not of
collection.
SECTION 7.02. Guaranty Absolute. (a) The Guarantors guarantee that the Obligations
will be paid strictly in accordance with the terms of this Agreement and the Notes, regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of the Agent or any Lender with respect thereto. The obligations of each
Guarantor under or in respect of this Guaranty are independent of the Obligations or any other
obligations of the Borrower under or in respect of this Agreement and the Notes, and a separate
action or actions may be brought and prosecuted against each Guarantor to enforce this Guaranty,
irrespective of whether any action is brought against the Borrower or whether the Borrower is
joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and each Guarantor
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hereby irrevocably
waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the
following:
(a) any lack of validity or enforceability of this Agreement, any Note or any agreement
or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other term of, all
or any of the Obligations or any other obligations of the Borrower under or in respect of
this Agreement and the Notes, or any other amendment or waiver of or any consent to
departure from this Agreement or any Note, including, without limitation, any increase in
the Obligations resulting from the extension of additional credit to the Borrower or any of
its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any collateral, or any taking,
release or amendment or waiver of, or consent to departure from, any other guaranty, for all
or any of the Obligations;
(d) any manner of application of any collateral, or proceeds thereof, to all or any of
the Obligations, or any manner of sale or other disposition of any collateral for all or any
of the Obligations or any other obligations of the Borrower under this Agreement and the
Notes or any other assets of the Borrower or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate structure or existence of
the Borrower or any of its Subsidiaries;
(f) any failure of the Agent or any Lender to disclose to the Guarantors any
information relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower now or hereafter known to the Agent or
such Lender (the Borrower waiving any duty on the part of the Agent and the Lenders to
disclose such information);
(g) the failure of any other Person to execute or deliver this Guaranty or any other
guaranty or agreement or the release or reduction of liability of the Guarantors or other
guarantor or surety with respect to the Obligations; or
(h) any other circumstance (including, without limitation, any statute of limitations)
or any existence of or reliance on any representation by the Agent or any Lender that might
otherwise constitute a defense available to, or a discharge of, the Borrower or any other
guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Obligations is rescinded or must otherwise be returned by the Agent or
any Lender or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower or
otherwise, all as though such payment had not been made.
SECTION 7.03. Waivers and Acknowledgments. (a) Each Guarantor hereby
unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment,
demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and
any other notice with respect to any of the Obligations and this Guaranty and any requirement that
the Agent or any Lender protect, secure, perfect or insure any Lien or any property subject thereto
or exhaust any right or take any action against the Borrower or any other Person or any collateral.
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(b) Each Guarantor hereby unconditionally and irrevocably waives any right to revoke
this Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all
Obligations, whether existing now or in the future.
(c) Each Guarantor hereby unconditionally and irrevocably waives (i) any defense
arising by reason of any claim or defense based upon an election of remedies by the Agent or
any Lender that in any manner impairs, reduces, releases or otherwise adversely affects the
subrogation, reimbursement, exoneration, contribution or indemnification rights of any
Guarantor to proceed against the Borrower, any other guarantor or any other Person or any
collateral and (ii) any defense based on any right of set-off or counterclaim against or in
respect of the obligations of any Guarantor hereunder.
(d) Each Guarantor hereby unconditionally and irrevocably waives any duty on the part
of the Agent or any Lender to disclose to such Guarantor any matter, fact or thing relating
to the business, condition (financial or otherwise), operations, performance, properties or
prospects of the Borrower or any of its Subsidiaries now or hereafter known by the Agent or
such Lender.
(e) Each Guarantor acknowledges that it will receive substantial direct and indirect
benefits from the financing arrangements contemplated by this Agreement and the Notes and
that the waivers set forth in Section 7.02 and this Section 7.03 are knowingly made in
contemplation of such benefits.
SECTION 7.04. Subrogation. Each Guarantor hereby unconditionally and irrevocably
agrees not to exercise any rights that it may now have or hereafter acquire against the Borrower or
any other Guarantor that arise from the existence, payment, performance or enforcement of such
Guarantors’ obligations under or in respect of this Guaranty, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Agent or any Lender against the Borrower or any other
Guarantor or any collateral, whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, including, without limitation, the right to take or receive from
the Borrower or any other Guarantor, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such claim, remedy or right,
unless and until all of the Obligations and all other amounts payable under this Guaranty shall
have been paid in full in cash, all Letters of Credit shall have expired or been terminated and the
Commitments shall have expired or been terminated. If any amount shall be paid to any Guarantor in
violation of the immediately preceding sentence at any time prior to the latest of (a) the payment
in full in cash of the Obligations and all other amounts payable under this Guaranty, (b) the
Termination Date and (c) the latest date of expiration or termination of all Letters of Credit,
such amount shall be received and held in trust for the benefit of the Agent and the Lenders, shall
be segregated from other property and funds of such Guarantor and shall forthwith be paid or
delivered to the Agent in the same form as so received (with any necessary endorsement or
assignment) to be credited and applied to the Obligations and all other amounts payable under this
Guaranty, whether matured or unmatured, in accordance with the terms of this Agreement and the
Notes, or to be held as collateral for any Obligations or other amounts payable under this Guaranty
thereafter arising. If (i) any Guarantor shall make payment to the Agent or any Lender of all or
any part of the Obligations, (ii) all of the Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash, (iii) the Termination Date shall have occurred and
(iv) all Letters of Credit shall have expired or been terminated, the Agent and the Lenders will,
at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate
documents, without recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to such Guarantor of an interest in the Obligations resulting from such
payment made by such Guarantor pursuant to this Guaranty.
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SECTION 7.05. Continuing Guaranty; Assignments. This Guaranty is a continuing
guaranty and shall (a) remain in full force and effect until the latest of (i) the payment in full
in cash of the Obligations and all other amounts payable under this Guaranty, (ii) the Termination
Date and (iii) the latest date of expiration or termination of all Letters of Credit, (b) be
binding upon each Guarantor, its successors and assigns and (c) inure to the benefit of and be
enforceable by the Agent and the Lenders and their successors, transferees and assigns. Without
limiting the generality of clause (c) of the immediately preceding sentence, the Agent or any
Lender may assign or otherwise transfer all or any portion of its rights and obligations under this
Agreement (including, without limitation, all or any portion of its Commitments, the Advances owing
to it and the Note or Notes held by it) to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to the Agent or such Lender herein
or otherwise, in each case as and to the extent provided in Section 9.07.
SECTION 7.06. Limitation of Guaranty. Any term or provision of this Guaranty or any
other Loan Document to the contrary notwithstanding, the maximum aggregate amount of the
Obligations for which any Subsidiary Guarantor shall be liable shall not exceed the maximum amount
for which such Subsidiary Guarantor can be liable without rendering this Guaranty, this Agreement
or any other Loan Document, as it relates to such Subsidiary Guarantor, subject to avoidance under
applicable law relating to fraudulent conveyance or fraudulent transfer (including Section 548 of
the Bankruptcy Code or any applicable provisions of comparable state law) (collectively,
“Fraudulent Transfer Laws”), in each case after giving effect (a) to all other liabilities
of such Subsidiary Guarantor, contingent or otherwise, that are relevant under such Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such Subsidiary Guarantor in
respect of intercompany Debt to the Borrower to the extent that such Debt would be discharged in an
amount equal to the amount paid by such Subsidiary Guarantor hereunder) and (b) to the value as
assets of such Subsidiary Guarantor (as determined under the applicable provisions of such
Fraudulent Transfer Laws) of any rights to subrogation, contribution, reimbursement, indemnity or
similar rights held by such Subsidiary Guarantor pursuant to (i) applicable federal, state, local
and foreign laws, rules and regulations, orders, judgments, decrees and other determinations of any
Governmental Authority or arbitrator and common law, or (ii) any other obligation, agreement,
undertaking or similar provisions of any security or any agreement, undertaking, contract, lease,
indenture, mortgage, deed of trust or other instrument (excluding a Loan Document) providing for an
equitable allocation among such Subsidiary Guarantor and other Subsidiaries or Affiliates of the
Borrower of obligations arising under this Guaranty or other guaranties of the Obligations by such
parties.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Authority. Each Lender hereby irrevocably appoints
Citi International to act on its behalf as the Agent hereunder and under the other Loan Documents
and authorizes the Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Agent by the terms hereof or thereof, together with such actions and powers as are
reasonably incidental thereto. The provisions of this Article are solely for the benefit of the
Agent and the Lenders, and neither the Borrower nor other Loan Party shall have rights as a third
party beneficiary of any of such provisions.
SECTION 8.02. Agent Individually. (a) The Person serving as the Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Agent and the term “Lender” or “Lenders” shall, unless
otherwise expressly indicated or unless the context otherwise requires, include the Person serving
as the Agent hereunder in its individual capacity. Such Person and its Affiliates may accept
deposits from, lend money to, act as the financial advisor or in any other advisory capacity for
and generally engage in any kind of
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business with the Borrower or any Subsidiary or other Affiliate
thereof as if such Person were not the Agent hereunder and without any duty to account therefor to
the Lenders.
(b) Each Lender understands that the Person serving as Agent, acting in its individual
capacity, and its Affiliates (collectively, the “Agent’s Group”) are engaged in a wide
range of financial services and businesses (including investment management, financing, securities
trading, corporate and investment banking and research) (such services and businesses are
collectively referred to in this Section 8.02 as “Activities”) and may engage in the
Activities with or on behalf of one or more of the Loan Parties or their respective Affiliates.
Furthermore, the Agent’s Group may, in undertaking the Activities, engage in trading in financial
products or undertake other investment businesses for its own account or on behalf of others
(including the Loan Parties and their Affiliates and including holding, for its own account or on
behalf of others, equity, debt and similar positions in the Borrower, another Loan Party or their
respective Affiliates), including trading in or holding long, short or derivative positions in
securities, loans or other financial products of one or more of the Loan Parties and their
Affiliates . Each Lender understands and agrees that in engaging in the Activities, the Agent’s
Group may receive or otherwise obtain information concerning the Loan Parties and their Affiliates
(including information concerning the ability of the Loan Parties to perform their respective
obligations hereunder and under the other Loan Documents) which information may not be available to
any of the Lenders that are not members of the Agent’s Group. None of the Agent nor any member of
the Agent’s Group shall have any duty to disclose to any Lender or use on behalf of the Lenders,
and shall not be liable for the failure to so disclose or use, any information whatsoever about or
derived from the Activities or otherwise (including any information concerning the business,
prospects, operations, property, financial and other condition or creditworthiness of any Loan
Party or any Affiliate thereof) or to account for any revenue or profits obtained in connection
with the Activities, except that the Agent shall deliver or otherwise make available to each Lender
such documents as are expressly required by any Loan Document to be transmitted by the Agent to the
Lenders. In acting as agent hereunder, the Agent shall be regarded as acting through its agency
division which shall be treated as a separate division from any other of its divisions or
departments and, notwithstanding the foregoing provisions of this Article XIII, any information
received by some other division or department of the Agent may be treated as confidential and shall
not be regarded as having been given to the Agent’s agency division.
(c) Each Lender further understands that there may be situations where members of the Agent’s
Group or their respective customers (including the Loan Parties and their Affiliates) either now
have or may in the future have interests or take actions that may conflict with the interests of
any one or more of the Lenders (including the interests of the Lenders hereunder or under the other
Loan Documents). Each Lender agrees that no member of the Agent’s Group is or shall be required to
restrict its activities as a result of the Person serving as Agent being a member of the Agent’s
Group, and that each member of the Agent’s Group may undertake any Activities without further
consultation with or notification to any Lender. None of (i) this Agreement nor any other Loan
Document, (ii) the receipt by the Agent’s Group of information (including Company Information)
concerning the Loan Parties and their Affiliates (including information concerning the ability of
the Loan Parties to perform their respective obligations hereunder and under the other Loan
Documents) nor (iii) any other matter shall give rise to any fiduciary, equitable or contractual
duties (including without limitation any duty of trust or confidence) owing by the Agent or any
member of the Agent’s Group to any Lender including any such duty that would prevent or restrict
the Agent’s Group from acting on behalf of customers (including the Loan Parties and their
Affiliates) or for its own account.
SECTION 8.03. Duties of Agent; Exculpatory Provisions. (a) The Agent’s duties
hereunder and under the other Loan Documents are solely ministerial and administrative in nature
and the Agent shall not have any duties or obligations except those expressly set forth herein and
in the other Loan Documents. Without limiting the generality of the foregoing, the Agent shall not
have any duty to
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take any discretionary action or exercise any discretionary powers, but shall be
required to act or refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the written direction of the Required Lenders (or such other number or percentage
of the Lenders as shall be expressly provided for herein or in the other Loan Documents),
provided that the Agent will not be required to take any action that, in its opinion or the
opinion of its counsel, may expose the Agent to liability or that is contrary to any Loan Document
or applicable law, including for the avoidance of doubt, any action that may be in violation of the
automatic stay under any debtor relief law or that may effect a forfeiture, modification or
termination of property of a Defaulting Lender in violation of any debtor relief law.
(b) The Agent shall not be liable for any action taken or not taken by it (i) with the consent
or at the request of the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary, or as the Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 9.01 or 6.01) or (ii) in the absence of its own gross
negligence or willful
misconduct. The Agent shall be deemed not to have knowledge of any Default or the event or
events that give or may give rise to any Default unless and until the Borrower or any Lender shall
have given notice to the Agent describing such Default and such event or events.
(c) Neither the Agent nor any member of the Agent’s Group shall be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty, representation or other information
made or supplied in or in connection with this Agreement or the Information Memorandum, (ii) the
contents of any certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith or the adequacy, accuracy and/or completeness of the information
contained therein, (iii) the performance or observance of any of the covenants, agreements or other
terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement,
instrument or document or the perfection or priority of any Lien created or purported to be created
hereby or (v) the satisfaction of any condition set forth in Article III or elsewhere herein, other
than (but subject to the foregoing clause (ii)) to confirm receipt of items expressly required to
be delivered to the Agent.
(d) Nothing in this Agreement shall require the Agent or any of its Related Parties to carry
out any “know your customer” or other checks in relation to any person on behalf of any Lender and
each Lender confirms to the Agent that it is solely responsible for any such checks it is required
to carry out and that it may not rely on any statement in relation to such checks made by the Agent
or any of its Related Parties.
(e) Nothing in this Agreement constitutes the Agent or any Arranger as a trustee or fiduciary
of any other person. Neither the Agent nor any Arranger shall be bound to account to the Lender
for any sum or the profit element of any sum received by it for its own account.
(f) The Arrangers shall have no obligations or duties whatsoever in such capacity under this
Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such
capacity.
SECTION 8.04. Reliance by Agent. The Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing (including any electronic message, Internet or intranet
website posting or other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper Person. The Agent also may rely upon any statement made
to it orally or by telephone and believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. In determining compliance with any condition
hereunder to the making of an Advance, or the issuance of a Letter of Credit, that by its terms
must be fulfilled to the satisfaction of a Lender, the Agent
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Avago Credit Agreement
may presume that such condition is
satisfactory to such Lender unless an officer of the Agent responsible for the transactions
contemplated hereby shall have received notice to the contrary from such Lender prior to the making
of such Advance or the issuance of such Letter of Credit, and in the case of a Borrowing, such
Lender shall not have made available to the Agent such Lender’s ratable portion of such Borrowing.
The Agent may consult with legal counsel (who may be counsel for the Borrower or any other Loan
Party), independent accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such counsel, accountants or
experts.
SECTION 8.05. Delegation of Duties. The Agent may perform any and all of its duties
and exercise its rights and powers hereunder or under any other Loan Document by or through any one
or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and
all of its duties and exercise its rights and powers by or through their respective Related
Parties. Each such sub-agent and the Related Parties of the Agent and each such sub-agent shall be
entitled to the benefits of all
provisions of this Article VIII and Section 9.04 (as though such sub-agents were the
“Agent” hereunder) as if set forth in full herein with respect thereto.
SECTION 8.06. Resignation of Agent. (a) The Agent may at any time give notice of
its resignation to the Lenders and the Borrower. Upon receipt of any such notice of resignation,
the Required Lenders shall have the right, in consultation with the Borrower, to appoint a
successor, which shall be a bank having a combined capital and surplus of at least $500,000,000 and
with an office in New York, New York, or an Affiliate of any such bank with an office in New York,
New York (or such other jurisdiction as is acceptable to the Required Lenders). If no such
successor shall have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Agent gives notice of its resignation (such 30-day
period, the “Lender Appointment Period”), then the retiring Agent may on behalf of the
Lenders, appoint a successor Agent meeting the qualifications set forth above. In addition and
without any obligation on the part of the retiring Agent to appoint, on behalf of the Lenders, a
successor Agent, the retiring Agent may at any time upon or after the end of the Lender Appointment
Period notify the Borrower and the Lenders that no qualifying Person has accepted appointment as
successor Agent and the effective date of such retiring Agent’s resignation. Upon the resignation
effective date established in such notice (which resignation effective date shall in any event
occur after the date that is 30 days after the date of such notice) and regardless of whether a
successor Agent has been appointed and accepted such appointment, the retiring Agent’s resignation
shall nonetheless become effective and (i) the retiring Agent shall be discharged from its duties
and obligations as Agent hereunder and (ii) all payments, communications and determinations
provided to be made by, to or through the Agent shall instead be made by or to each Lender
directly, until such time as the Required Lenders appoint a successor Agent as provided for above
in this paragraph. Upon the acceptance of a successor’s appointment as Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
as Agent of the retiring (or retired) Agent, and the retiring Agent shall be discharged from all of
its duties and obligations as Agent hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this paragraph). The fees payable by the Borrower to a
successor Agent shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the retiring Agent’s resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 9.04 shall continue in
effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties
in respect of any actions taken or omitted to be taken by any of them while the retiring Agent was
acting as Agent.
(b) Any resignation pursuant to this Section by a Person acting as Agent shall, unless such
Person shall notify the Borrower and the Lenders otherwise, also act to relieve such Person and its
Affiliates of any obligation to advance or issue new, or extend existing, Letters of Credit where
such advance, issuance or extension is to occur on or after the effective date of such resignation.
Upon the
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acceptance of a successor’s appointment as Agent hereunder, (i) such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
Issuing Bank, (ii) the retiring Issuing Bank shall be discharged from all of its duties and
obligations hereunder and (iii) the successor Issuing Bank shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such succession or make
other arrangement satisfactory to the retiring Issuing Bank to effectively assume the obligations
of the retiring Issuing Bank with respect to such Letters of Credit.
SECTION 8.07. Non-Reliance on Agent and Other Lenders. (a) Each Lender confirms to
the Agent, each other Lender and each of their respective Related Parties that it (i) possesses
(individually or through its Related Parties) such knowledge and experience in financial and
business matters that it is capable, without reliance on the Agent, any other Lender or any of
their respective Related Parties, of evaluating the merits and risks (including tax, legal,
regulatory, credit, accounting and
other financial matters) of (x) entering into this Agreement, (y) making Advances and other
extensions of credit hereunder and under the other Loan Documents and (z) in taking or not taking
actions hereunder and thereunder, (ii) is financially able to bear such risks and (iii) has
determined that entering into this Agreement and making Advances and other extensions of credit
hereunder and under the other Loan Documents is suitable and appropriate for it.
(b) Each Lender acknowledges that (i) it is solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection with this Agreement and the
other Loan Documents, (ii) that it has, independently and without reliance upon the Agent, any
other Lender or any of their respective Related Parties, made its own appraisal and investigation
of all risks associated with, and its own credit analysis and decision to enter into, this
Agreement based on such documents and information, as it has deemed appropriate and (iii) it will,
independently and without reliance upon the Agent, any other Lender or any of their respective
Related Parties, continue to be solely responsible for making its own appraisal and investigation
of all risks arising under or in connection with, and its own credit analysis and decision to take
or not take action under, this Agreement and the other Loan Documents based on such documents and
information as it shall from time to time deem appropriate, which may include, in each case:
(i) the financial condition, status and capitalization of the Loan Parties and their
Affiliates;
(ii) the legality, validity, effectiveness, adequacy or enforceability of this
Agreement and each other Loan Document and any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in connection with any Loan
Document;
(iii) determining compliance or non-compliance with any condition hereunder to the
making of an Advance, or the issuance of a Letter of Credit and the form and substance of
all evidence delivered in connection with establishing the satisfaction of each such
condition;
(iv) the adequacy, accuracy and/or completeness of the Information Memorandum and any
other information delivered by the Agent, any other Lender or by any of their respective
Related Parties under or in connection with this Agreement or any other Loan Document, the
transactions contemplated hereby or any other agreement, arrangement or document entered
into, made or executed in anticipation of, under or in connection with any Loan Document.
SECTION 8.08. Indemnification. (a) Each Lender severally agrees to indemnify the
Agent (to the extent not reimbursed by the Borrower) from and against such Lender’s pro rata share
(determined as provided below) of any and all liabilities, obligations, losses, damages, actions,
judgments,
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Avago Credit Agreement
suits, costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Agent (in its capacity as such) in any way
relating to or arising out of this Agreement or any action taken or omitted by the Agent (in its
capacity as such) under this Agreement (collectively, the “Indemnified Costs”),
provided that no Lender shall be liable for any portion of the Indemnified Costs resulting
from the Agent’s gross negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its pro rata Share of any reasonable
and documented out-of-pocket expenses (including reasonable counsel fees) incurred by the Agent (in
its capacity as such) in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to
the extent that the Agent is not reimbursed for such expenses by the Borrower. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05(a)
applies whether any such investigation, litigation or proceeding is brought by the Agent, any
Lender or a third
party. For purposes of this Section 8.08(a), the Lenders’ respective pro rata shares of any
amount shall be determined, at any time, according to the sum of (i) the aggregate principal amount
of the Advances outstanding at such time and owing to the respective Lenders, (ii) their respective
pro rata shares of the aggregate Available Amount of all Letters of Credit outstanding at such time
and (iii) their respective Unused Revolving Credit Commitments at such time. Each Lender also
agrees not to assert any claim for special, indirect, consequential or punitive damages against the
Agent or any of its Affiliates, or any of their respective directors, officers, employees,
attorneys and agents, on any theory of liability, arising out of or otherwise relating to the
Notes, this Agreement, any of the transactions contemplated herein.
(b) Each Lender severally agrees to indemnify the Issuing Banks (to the extent not promptly
reimbursed by the Borrower) from and against such Lender’s Ratable Share of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted
against any such Issuing Bank (in its capacity as such) in any way relating to or arising out of
the Loan Documents or any action taken or omitted by such Issuing Bank (in its capacity as such)
hereunder or in connection herewith including, without limitation, any of the foregoing relating to
the violation of, non-compliance with or liability under any Environmental Law or to any actual or
alleged presence, release or threatened release of Hazardous Materials involving or attributable to
the Borrower or any of its Subsidiaries; provided, however, that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from such Issuing Bank’s gross
negligence or willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse any such Issuing Bank promptly upon demand for its Ratable Share of any reasonable and
documented costs and expenses (including, without limitation, reasonable fees and expenses of
counsel) payable by the Borrower under Section 9.04, to the extent that such Issuing Bank is not
promptly reimbursed for such costs and expenses by the Borrower.
(c) The failure of any Lender to reimburse the Agent or any Issuing Bank promptly upon demand
for its Ratable Share of any amount required to be paid by the Lenders to the Agent as provided
herein shall not relieve any other Lender of its obligation hereunder to reimburse the Agent or any
Issuing Bank for its Ratable Share of such amount, but no Lender shall be responsible for the
failure of any other Lender to reimburse the Agent or any Issuing Bank for such other Lender’s
applicable share of such amount. Without prejudice to the survival of any other agreement of any
Lender hereunder, the agreement and obligations of each Lender contained in this Section 8.08 shall
survive the payment in full of principal, interest and all other amounts payable hereunder and
under the Notes. Each of the Agent and each Issuing Bank agrees to return to the Lenders their
respective applicable shares of any amounts paid under this Section 8.08 that are subsequently
reimbursed by the Borrower.
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SECTION 8.09. Other Agents. Anything herein to the contrary notwithstanding, none of
the Persons acting as bookrunners, arrangers, the documentation agent nor any other Lender
designated as any “Agent” listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except in its capacity,
as applicable, as the Agent or as a Lender hereunder.
SECTION 8.10. Removal of Agent. Anything herein to the contrary notwithstanding, if
at any time the Required Lenders determine that the Person serving as Agent is (without taking into
account any provision in the definition of “Defaulting Lender” requiring notice from the Agent or
any other party) a Defaulting Lender pursuant to clause (v) of the definition thereof, the Required
Lenders (determined after giving effect to Section 9.01) may by notice to the Borrower and such
Person remove such Person as Agent and appoint a replacement Agent hereunder. Such removal will,
to the fullest extent permitted by applicable law, be effective on the earlier of (i) the date a
replacement Agent is
appointed and (ii) the date 30 days after the giving of such notice by the Required Lenders
(regardless of whether a replacement Agent has been appointed).
SECTION 8.11. Force Majeure. Notwithstanding anything to the contrary in this
Agreement or in any other transaction document, the Agent shall not in any event be liable for any
loss or damage, or any failure or delay in the performance of its obligations hereunder if it is
prevented from so performing its obligations by any reason which is beyond the control of the
Agent, including, but not limited to, any existing or future law or regulation, any existing or
future act of governmental authority, act of god, flood, war whether declared or undeclared,
terrorism, riot, rebellion, civil commotion, strike, lockout, other industrial action, general
failure of electricity or other supply, aircraft collision, technical failure, accidental or
mechanical or electrical breakdown, computer failure or failure of any money transmission system or
any event where, in the reasonable opinion of the Agent, performance of any duty or obligation
under or pursuant to this Agreement would or may be illegal or would result in the Agent being in
breach of any law, rule, regulation, or any decree, order or judgment of any court, or practice,
request, direction, notice, announcement or similar action (whether or not having the force of law)
of any relevant government, government agency, regulatory authority, stock exchange or
self-regulatory organization to which the Agent is subject.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments. No amendment or waiver of any provision of this Agreement
or the Notes, nor consent to any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the specific purpose for
which given; provided, however, that (a) no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (i) waive any of the
conditions specified in Section 3.01, (ii) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Advances, or the number of Lenders, that shall be required
for the Lenders or any of them to take any action hereunder, (iii) amend this Section 9.01 or (iv)
release all or substantially all of the Guarantors from their obligations under Article VII, (b) no
amendment, waiver or consent shall, unless in writing and signed by each Lender affected hereby, do
any of the following: (i) increase the Commitments of the Lenders other than in accordance with
Section 2.18, (ii) reduce the principal of, or rate of interest on, the Advances or any fees or
other amounts payable hereunder, (iii) postpone any date fixed for any payment of principal of, or
interest on, the Advances or any fees or other amounts payable hereunder, or (iv) extend the
expiration date of any Letter of Credit to a date later than the final Termination Date and (c) no
amendment, waiver or consent shall, unless in writing and signed by each extending Lender, extend
the expiration of any
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Commitment of such Lenders; and provided further that (x) no
amendment, waiver or consent shall, unless in writing and signed by the Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the Agent under this
Agreement or any Note; and (y) no amendment, waiver or consent shall, unless in writing and signed
by the Issuing Banks in addition to the Lenders required above to take such action, adversely
affect the rights or obligations of the Issuing Banks in their capacities as such under this
Agreement. Anything herein to the contrary notwithstanding, during such period as a Lender is a
Defaulting Lender, to the fullest extent permitted by applicable law, such Lender will not be
entitled to vote in respect of amendments and waivers hereunder and the Commitment and the
outstanding Advances or other extensions of credit of such Lender hereunder will not be taken into
account in determining whether the Required Lenders or all of the Lenders, as required, have
approved any such amendment or waiver (and the definition of “Required Lenders” will automatically
be deemed modified accordingly for the duration of such period); provided, that any such
amendment or waiver that would increase or extend the term of the Commitment of such Defaulting
Lender, extend the date fixed
for the payment of principal or interest owing to such Defaulting Lender hereunder, reduce the
principal amount of any obligation owing to such Defaulting Lender, reduce the amount of or the
rate or amount of interest on any amount owing to such Defaulting Lender or of any fee payable to
such Defaulting Lender hereunder, or alter the terms of this proviso, will require the consent of
such Defaulting Lender.
SECTION 9.02. Notices. (a) All notices, demands, requests, consents and other
communications provided for in this Agreement shall be given in writing, or by any
telecommunication device capable of creating a written record (including electronic mail), and
addressed to the party to be notified as follows:
(i) | if to the Borrower or any other Loan Party, | ||
Avago Technologies Finance Pte. Ltd. 0 Xxxxxx Xxxxxx 0 Xxxxxxxxx 000000 Attention of: Xxxxxxx Xxx Telecopier No.: (00) 0000 0000 E-Mail Address: xxxxxxxxxx@xxxxxxxxx.xxx, xxx-xxxxxxxx@xxxxxxxxx.xxx |
|||
(ii) | if to the Agent, Citicorp International Limited 9th Floor, Two Harbourfront 00 Xxx Xxxx Xxxxxx Xxxx Xxx, Xxxxxxx, Xxxx Xxxx Attn: Regional Loans Agency |
||
(iii) | if to the Initial Issuing Bank, Citibank, N.A. Building #3, 0000 Xxxxx Xxxx Xxx Xxxxxx, XX 00000 Attn: Bank Loan Syndications Tel: 000 000-0000 Fax: 000 000-0000 |
(iv) if to any Initial Lender, at its Base Rate Lending Office specified opposite its
name on Schedule I hereto; if to any other Lender, at its Base Rate Lending Office specified
in
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the Assumption Agreement or the Assignment and Acceptance pursuant to which it became a
Lender;
or at such other address as shall be notified in writing (x) in the case of the Borrower, the
Agent, to the other parties and (y) in the case of all other parties, to the Borrower and the
Agent.
(b) All notices, demands, requests, consents and other communications described in clause (a)
shall be effective (i) if delivered by hand, including any overnight courier service, upon personal
delivery, (ii) if delivered by mail, when deposited in the mails, (iii) if delivered by posting to
an Approved Electronic Platform, an Internet website or a similar telecommunication device
requiring that a user have prior access to such Approved Electronic Platform, website or other
device (to the extent permitted by Section 9.02(d) to be delivered thereunder), when such notice,
demand, request, consent and other communication shall have been made generally available on such
Approved Electronic Platform,
Internet website or similar device to the class of Person being notified (regardless of
whether any such Person must accomplish, and whether or not any such Person shall have
accomplished, any action prior to obtaining access to such items, including registration,
disclosure of contact information, compliance with a standard user agreement or undertaking a duty
of confidentiality) and such Person has been notified in respect of such posting that a
communication has been posted to the Approved Electronic Platform and (iv) if delivered by
electronic mail or any other telecommunications device, when transmitted to an electronic mail
address (or by another means of electronic delivery) as provided in clause (a); provided,
however, that notices and communications to the Agent pursuant to Article II or Article VIII shall
not be effective until received by the Agent.
(c) Notwithstanding clauses (a) and (b) (unless the Agent requests that the provisions of
clause (a) and (b) be followed) and any other provision in this Agreement or any other Loan
Document providing for the delivery of any Approved Electronic Communication by any other means,
the Loan Parties shall deliver all Approved Electronic Communications to the Agent by properly
transmitting such Approved Electronic Communications in an electronic/soft medium in a format
acceptable to the Agent to xxxxxxxxxxxxxxx@xxxxxxxxx.xxx or such other electronic mail address (or
similar means of electronic delivery) as the Agent may notify to the Borrower. Nothing in this
clause (c) shall prejudice the right of the Agent or any Lender to deliver any Approved Electronic
Communication to any Loan Party in any manner authorized in this Agreement or to request that the
Borrower effect delivery in such manner
(d) Posting of Approved Electronic Communications. (i) Each Lender and each Loan
Party agrees that the Agent may, but shall not be obligated to, make the Approved Electronic
Communications available to the Lenders by posting such Approved Electronic Communications on Debt
Domain or a substantially similar electronic platform chosen by the Agent to be its electronic
transmission system (the “Approved Electronic Platform”).
(ii) Although the Approved Electronic Platform and its primary web portal are secured with
generally-applicable security procedures and policies implemented or modified by the Agent from
time to time (including, as of the Effective Date, a dual firewall and a User ID/Password
Authorization System) and the Approved Electronic Platform is secured through a
single-user-per-deal authorization method whereby each user may access the Approved Electronic
Platform only on a deal-by-deal basis, each Lender and each Loan Party acknowledges and agrees that
the distribution of material through an electronic medium is not necessarily secure and that there
are confidentiality and other risks associated with such distribution. In consideration for the
convenience and other benefits afforded by such distribution and for the other consideration
provided hereunder, the receipt and sufficiency of which is hereby acknowledged, each Lender and
each Loan Party hereby approves distribution of the Approved Electronic Communications through the
Approved Electronic Platform and understands and assumes the risks of such distribution.
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Avago Credit Agreement
(iii) THE APPROVED ELECTRONIC PLATFORM AND THE APPROVED ELECTRONIC COMMUNICATIONS ARE PROVIDED
“AS IS” AND “AS AVAILABLE”. NONE OF THE AGENT NOR ANY OTHER MEMBER OF THE AGENT’S
GROUP WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE APPROVED ELECTRONIC COMMUNICATIONS OR
THE APPROVED ELECTRONIC PLATFORM AND EACH EXPRESSLY DISCLAIMS ANY LIABILITY FOR ERRORS OR OMISSIONS
IN THE APPROVED ELECTRONIC COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM. NO WARRANTY OF ANY
KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN CONNECTION WITH THE
APPROVED ELECTRONIC COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM.
(iv) Each Lender and each Loan Party agrees that the Agent may, but (except as may be
required by applicable law) shall not be obligated to, store the Approved Electronic Communications
on the Approved Electronic Platform in accordance with the Agent’s generally-applicable document
retention procedures and policies.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any Lender or the Agent
to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Borrower agrees to pay on demand all
reasonable costs and expenses of the Agent in connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement, the Notes and the other documents to
be delivered hereunder, including, without limitation, (A) all computer, duplication, appraisal,
consultant, and audit expenses and (B) the reasonable fees and expenses of one counsel for the
Agent in each relevant jurisdiction with respect thereto and with respect to advising the Agent as
to its rights and responsibilities under this Agreement. The Borrower further agrees to pay on
demand all costs and expenses of the Agent and the Lenders, if any (including, without limitation,
reasonable counsel fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, reasonable fees and expenses of counsel
for the Agent and each Lender in connection with the enforcement of rights under this Section
9.04(a).
(b) The Borrower agrees to indemnify and hold harmless the Agent and each Lender and each of
their Affiliates and their officers, directors, employees, agents and advisors (each, an
“Indemnified Party”) from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of or in connection
with or by reason of (including, without limitation, in connection with any investigation,
litigation or proceeding or preparation of a defense in connection therewith) (i) the Notes, this
Agreement, any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances or Letters of Credit or (ii) the actual or alleged presence of Hazardous
Materials on any property of the Borrower or any of its Subsidiaries or any Environmental Action
relating in any way to the Borrower or any of its Subsidiaries, except, with respect to any
Indemnified Party, to the extent such claim, damage, loss, liability or expense is determined in a
final and non-appealable judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party’s gross negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 9.04(b) applies, such
indemnity shall
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Avago Credit Agreement
be effective whether or not such investigation, litigation or proceeding is brought
by the Borrower, its directors, equityholders or creditors or an Indemnified Party or any other
Person, whether or not any Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. The Borrower also agrees not to assert any claim
for special, indirect, consequential or punitive damages against the Agent, any Lender, any of
their Affiliates, or any of their respective directors, officers, employees, attorneys and agents,
on any theory of liability, arising out of or otherwise relating to the Notes, this Agreement, any
of the transactions contemplated herein or the actual or proposed use of the proceeds of the
Advances.
(c) If any payment of principal of, or Conversion of, any Eurocurrency Rate Advance is made by
the Borrower to or for the account of a Lender (i) other than on the last day of the Interest
Period for such Advance, as a result of a payment or Conversion pursuant to Section 2.08, 2.10 or
2.12, acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other reason,
or by an
Eligible Assignee to a Lender other than on the last day of the Interest Period for such
Advance upon an assignment of rights and obligations under this Agreement pursuant to Section 9.07
as a result of a demand by the Borrower pursuant to Section 9.07(a), or by an Assuming Lender to or
for the account of a Lender other than on the last day of the Interest Period for such Advance upon
a redistribution of Borrowings as a result of a Commitment Increase requested by the Borrower
pursuant to Section 2.18 or (ii) as a result of a payment or Conversion pursuant to Section 2.08,
2.10 or 2.12, Borrower shall, upon demand by such Lender (with a copy of such demand to the Agent),
pay to the Agent for the account of such Lender any amounts required to compensate such Lender for
any additional losses, costs or expenses that it may reasonably incur as a result of such payment
or Conversion, including, without limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the Borrower hereunder, the
agreements and obligations of the Borrower contained in Sections 2.11, 2.14 and 9.04 shall survive
the payment in full of principal, interest and all other amounts payable hereunder and under the
Notes.
SECTION 9.05. Right of Set-off. Upon (i) the occurrence and during the continuance
of any Event of Default and (ii) the making of the request or the granting of the consent specified
by Section 6.01 to authorize the Agent to declare the Advances due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender or such Affiliate to or for the credit or the account
of the Borrower against any and all of the obligations of the Borrower now or hereafter existing
under this Agreement and the Note held by such Lender, whether or not such Lender shall have made
any demand under this Agreement or such Note and although such obligations may be unmatured;
provided that in the event that any Defaulting Lender exercises any such right of setoff, (x) all
amounts so set off will be paid over immediately to the Agent for further application in accordance
with the provisions of Section 2.19(b) and, pending such payment, will be segregated by such
Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent, the
Issuing Banks and the Lenders and (y) the Defaulting Lender will provide promptly to the Agent a
statement describing in reasonable detail the obligations owing to such Defaulting Lender as to
which it exercised such right of setoff. Each Lender agrees promptly to notify the Borrower after
any such set-off and application, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender and its Affiliates
under this Section are in addition to other rights and remedies (including, without limitation,
other rights of set-off) that such Lender and its Affiliates may have.
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SECTION 9.06. Binding Effect. This Agreement shall become effective (other than
Section 2.01, which shall only become effective upon satisfaction of the conditions precedent set
forth in Section 3.01) when it shall have been executed by the Borrower and the Agent and when the
Agent shall have been notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, the Agent and each
Lender and their respective successors and assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior written consent of
all of the Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender may assign to one or
more Eligible Assignees all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Revolving Credit Commitment, its Unissued
Letter of Credit Commitment, the Advances owing to it, its participations in Letters of Credit and
the Note or Notes held by it); provided, however, that (i) each such assignment
shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement, (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of
all of a Lender’s rights and obligations under this Agreement, the amount of (x) the Revolving
Credit Commitment of the assigning Lender being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to such assignment) shall
be $10,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) the Letter of Credit
Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to such assignment) shall
be $5,000,000 or an integral multiple of $1,000,000 in excess thereof, in each case, unless the
Borrower and the Agent otherwise agree and (iii) the parties to each such assignment shall execute
and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together with any Note subject to such assignment and a processing and recordation fee
of $3,500 payable by the parties to each such assignment, provided, however, that
in the case of each assignment made as a result of a demand by the Borrower, such recordation fee
shall be payable by the Borrower except that no such recordation fee shall be payable in the case
of an assignment made at the request of the Borrower to an Eligible Assignee that is an existing
Lender and provided further that no such assignment shall be made to any Defaulting
Lender or Potential Defaulting Lender or any of their respective subsidiaries, or any Person who,
upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this
clause. Upon such execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto
with respect to the interest assigned and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of
a Lender hereunder, in addition to any rights and obligations theretofore held by it as a Lender,
and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other
than its rights under Sections 2.11, 2.14 and 9.04 to the extent any claim thereunder relates to an
event arising prior to such assignment) and be released from its obligations (other than its
obligations under Section 8.08 to the extent any claim thereunder relates to an event arising prior
to such assignment) under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement,
such Lender shall cease to be a party hereto). The assignee, if it is not a Lender, shall deliver
to the Agent an Administrative Questionnaire.
In connection with any assignment of rights and obligations of any Defaulting Lender
hereunder, no such assignment will be effective unless and until, in addition to the other
conditions thereto set forth herein, the parties to the assignment make such additional payments to
the Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be
outright payment, purchases by the assignee of participations or subparticipations, or other
compensating actions, including funding, with the consent of the Borrower and the Agent, the
applicable pro rata share of Advances
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previously requested but not funded by the Defaulting Lender,
to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and
satisfy in full all payment liabilities then owed by such Defaulting Lender to the Agent, the
Issuing Banks and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and
fund as appropriate) its full pro rata share of all Advances and participations in Letters of
Credit in accordance with its Revolving Credit Commitment. Notwithstanding the foregoing, in the
event that any assignment of rights and obligations of any Defaulting Lender hereunder becomes
effective under applicable law without compliance with the provisions of this paragraph, then the
assignee of such interest will be deemed to be a Defaulting Lender for all purposes of this
Agreement until such compliance occurs.
(b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder
and the assignee thereunder confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created under or in connection
with, this Agreement or any other instrument or document furnished pursuant hereto; (ii) such
assigning Lender makes no representation or warranty and assumes no responsibility with respect to
the financial condition of the Borrower or the performance or observance by the Borrower of any of
its obligations under this Agreement or any other instrument or document furnished pursuant hereto;
(iii) such assignee confirms that, to the extent it has so requested, it has received a copy of
this Agreement, together with copies of the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate to make its own credit analysis
and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently
and without reliance upon the Agent, such assigning Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it
is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action
as agent on its behalf and to exercise such powers and discretion under this Agreement as are
delegated to the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this Agreement are required to be
performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an
assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to
such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt notice thereof to the
Borrower.
(d) The Agent shall maintain at its address referred to in Section 9.02 a copy of each
Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Advances owing to, each Lender from time to time (the “Register”).
The entries in the Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in
the Register as a Lender hereunder for all purposes of this Agreement. In addition, the Agent
shall maintain on the Register information regarding the designation and revocation of designation
of any Lender as a Defaulting Lender. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
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(e) Each Lender may sell participations to one or more banks or other entities (other than the
Borrower or any of its Affiliates) in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Commitment, the Advances
owing to it and any Note or Notes held by it); provided, however, that (i) such
Lender’s obligations under this Agreement (including, without limitation, its Commitment to the
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such Lender shall remain the
holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Agent and the
other Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any provision of this
Agreement or any Note, or any consent to any departure by the Borrower therefrom, except to the
extent that such amendment, waiver or consent would reduce the principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such
participation.
Each Lender that sells a participation shall, acting solely for this purpose as a
non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of
each participant and the principal amounts (and stated interest) of each participant’s interest in
the Notes or other obligations under the Loan Documents (the “Participant Register”);
provided that no Lender shall have any obligation to disclose all or any portion of the Participant
Register to any Person (including the identity of any participant or any information relating to a
participant’s interest in any commitments, loans, letters of credit or its other obligations under
any Loan Document) except to the extent that such disclosure is necessary to establish that such
commitment, loan, letter of credit or other obligation is in registered form under Section
5f.103-1(c) of the Treasury regulations promulgated under the Internal Revenue Code. The entries
in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat
each Person whose name is recorded in the Participant Register as the owner of such participation
for all purposes of this Agreement notwithstanding any notice to the contrary.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment
or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed
assignee or participant, any information relating to the Borrower furnished to such Lender by or on
behalf of the Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the confidentiality of any
Company Information relating to the Borrower received by it from such Lender in accordance with
Section 9.08 hereof.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any
time create a security interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender (including, without limitation, any pledge or assignment to secure
obligations to a Federal Reserve Bank in accordance with Regulation A of the Board of Governors of
the Federal Reserve System and this Section shall not apply to any such pledge or assignment of a
security interest; provided that, no such pledge or assignment of a security interest shall release
a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such
Lender party hereto interest.
(h) Resignation as Issuing Bank after Assignment. Notwithstanding anything to the
contrary contained herein, (i) if at any time any Issuing Bank assigns all of its Revolving Credit
Commitments and Advances pursuant to Section 9.07(a), such Person may, upon 30 days’ notice to the
Borrower and the Lenders, resign as Issuing Bank and (ii) if a Lender becomes, and during the
period it remains, a Defaulting Lender or a Potential Defaulting Lender, any Issuing Bank may, upon
30 days’ notice to the Borrower and the Lenders, resign as Issuing Bank. In the event of any such
resignation as Issuing Bank, the Borrower shall be entitled to appoint from among the Lenders a
successor Issuing Bank
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hereunder; provided, however, that no failure by the
Borrower to appoint any such successor shall affect the resignation of such Person as Issuing Bank.
If such Person resigns as Issuing Bank, it shall retain all the rights, powers, privileges and
duties of an Issuing Bank hereunder with respect to all Letters of Credit outstanding as of the
effective date of its resignation as Issuing Bank and all unreimbursed Letter of Credit drawings
with respect thereto. Upon the appointment of a successor Issuing Bank, (a) such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
Issuing Bank and (b) the successor Issuing Bank shall issue letters of credit in substitution for
the Letters of Credit, if any, outstanding at the time of such succession or make other
arrangements satisfactory to such Person to effectively assume the obligations of such Person with
respect to such Letters of Credit.
SECTION 9.08. Confidentiality. Each of the Agent and the Lenders agrees to maintain
the confidentiality of the Company Information (as defined below), except that Company Information
may be disclosed (a) to its Related Parties, head office, branches and representative offices,
in any jurisdiction (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Company Information and instructed to keep such Company
Information confidential), (b) to the extent requested by any regulatory authority purporting to
have jurisdiction over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners); provided that, unless specifically prohibited by
applicable law or court order, prior to any such disclosure, the Agent or such Lender, as
applicable, shall notify Borrower of any such request, (c) to the extent required by applicable
laws or regulations or by any subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies hereunder or under any other Loan
Document, any action or proceeding relating to this Agreement or any other Loan Document, the
enforcement of rights hereunder or thereunder or any litigation or proceeding to which the Agent or
any lender or any of their respective Affiliates may be a party, (f) subject to an agreement
containing provisions no less restrictive than those of this Section 9.08, to (i) any assignee of
or participant in, or any prospective assignee of or participant in, any of its rights or
obligations under this Agreement, (ii) any actual or prospective party (or its managers,
administrators, trustees, partners, directors, officers, employees, agents, advisors and other
representatives) surety, reinsurer, guarantor or credit liquidity enhancer (or their advisors) to
or in connection with any swap, derivative or other similar transaction under which payments are to
be made by reference to the Borrower and its obligations, this Agreement or payments hereunder,
(iii) any rating agency when required by it, or (iv) the CUSIP Service Bureau or any similar
organization, (g) to the extent such Company Information (A) is or becomes generally available to
the publicly available other than as a result of a breach of this Section 9.08, or (B) becomes
available to the Agent, any Lender or any of their respective Affiliates on nonconfidential basis
from a source other than the Borrower, (h) to any service provider where required for outsourcing
operational, storage, maintenance and/or administrative functions of the Agent or such Lender
(provided that the Persons to whom such disclosure is made will be informed of the confidential
nature of such Company Information and shall have agreed in writing to keep such Company
Information confidential) and (i) with the consent of the Borrower.
For purposes of this Section, “Company Information” means all information received
from a Loan Party or any of their respective Subsidiaries relating to a Loan Party or any of their
respective Subsidiaries or any of their respective businesses, other than any such information that
is available to the Agent or any Lender on a nonconfidential basis prior to disclosure by any Loan
Party or any of their respective Subsidiaries, provided that, in the case of information
received from a Loan Party or any of their Subsidiaries after the date hereof, such information is
clearly identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Company Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to its own
confidential information.
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SECTION 9.09. Treatment of Information. (a) Certain of the Lenders may enter into
this Agreement and take or not take action hereunder or under the other Loan Documents on the basis
of information that does not contain material non-public information with respect to any of the
Loan Parties or their securities (“Restricting Information”). Other Lenders may enter into
this Agreement and take or not take action hereunder or under the other Loan Documents on the basis
of information that may contain Restricting Information. Each Lender acknowledges that United
States federal and state securities laws prohibit any person from purchasing or selling securities
on the basis of material, non-public information concerning the such issuer of such securities or,
subject to certain limited exceptions, from communicating such information to any other Person.
Neither the Agent nor any of its Related Parties shall, by making any Communications (including
Restricting Information) available to a Lender, by participating in any conversations or other
interactions with a Lender or otherwise, make or be deemed to make any statement with regard to or
otherwise warrant that any such information or Communication
does or does not contain Restricting Information nor shall the Agent or any of its Related
Parties be responsible or liable in any way for any decision a Lender may make to limit or to not
limit its access to Restricting Information. In particular, none of the Agent nor any of its
Related Parties (i) shall have, and the Agent, on behalf of itself and each of its Related Parties,
hereby disclaims, any duty to ascertain or inquire as to whether or not a Lender has or has not
limited its access to Restricting Information, such Lender’s policies or procedures regarding the
safeguarding of material, nonpublic information or such Lender’s compliance with applicable laws
related thereto or (ii) shall have, or incur, any liability to any Loan Party or Lender or any of
their respective Related Parties arising out of or relating to the Agent or any of its Related
Parties providing or not providing Restricting Information to any Lender.
(b) Each Loan Party agrees that (i) all Communications it provides to the Agent intended for
delivery to the Lender Parties whether by posting to the Approved Electronic Platform or otherwise
shall be clearly and conspicuously marked “PUBLIC” if such Communications do not contain
Restricting Information which, at a minimum, shall mean that the word “PUBLIC” shall appear
prominently on the first page thereof, (ii) by marking Communications “PUBLIC,” each Loan Party
shall be deemed to have authorized the Agent and the Lenders to treat such Communications as either
publicly available information or not material information (although, in this latter case, such
Communications may contain sensitive business information and, therefore, remain subject to the
confidentiality undertakings of Section 3) with respect to such Loan Party or its securities for
purposes of United States Federal and state securities laws, (iii) all Communications marked
“PUBLIC” may be delivered to all Lenders and may be made available through a portion of the
Approved Electronic Platform designated “Public Side Information,” and (iv) the Agent shall be
entitled to treat any Communications that are not marked “PUBLIC” as Restricting Information and
may post such Communications to a portion of the Approved Electronic Platform not designated
“Public Side Information.” Neither the Agent nor any of its Affiliates shall be responsible for
any statement or other designation by a Loan Party regarding whether a Communication contains or
does not contain material non-public information with respect to any of the Loan Parties or their
securities nor shall the Agent or any of its Affiliates incur any liability to any Loan Party, any
Lender or any other Person for any action taken by the Agent or any of its Affiliates based upon
such statement or designation, including any action as a result of which Restricting Information is
provided to a Lender that may decide not to take access to Restricting Information. Nothing in
this Section 4 shall modify or limit a Lender’s obligations under Section 3 with regard to
Communications and the maintenance of the confidentiality of or other treatment of Information.
(c) Each Lender acknowledges that circumstances may arise that require it to refer to
Communications that might contain Restricting Information. Accordingly, each Lender agrees that it
will nominate at least one designee to receive Communications (including Restricting Information)
on its behalf and identify such designee (including such designee’s contact information) as
required to the Agent. Each Lender agrees to notify the Agent from time to time of such Lender’s
designee’s e-mail
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Avago Credit Agreement
address to which notice of the availability of Restricting Information may be
sent by electronic transmission.
(d) Each Lender acknowledges that Communications delivered hereunder and under the other Loan
Documents may contain Restricting Information and that such Communications are available to all
Lenders generally. Each Lender that elects not to take access to Restricting Information does so
voluntarily and, by such election, acknowledges and agrees that the Agent and other Lenders may
have access to Restricting Information that is not available to such electing Lender. None of the
Agent nor any Lender with access to Restricting Information shall have any duty to disclose such
Restricting Information to such electing Lender or to use such Restricting Information on behalf of
such electing Lender, and shall not be liable for the failure to so disclose or use, such
Restricting Information.
(e) The provisions of the foregoing clauses of this Section 9.09 are designed to assist the
Agent, the Lenders and the Loan Parties, in complying with their respective contractual obligations
and applicable law in circumstances where certain Lenders express a desire not to receive
Restricting Information notwithstanding that certain Communications hereunder or under the other
Loan Documents or other information provided to the Lenders hereunder or thereunder may contain
Restricting Information. Neither the Agent nor any of its Related Parties warrants or makes any
other statement with respect to the adequacy of such provisions to achieve such purpose nor does
the Agent nor any of its Related Parties warrant or make any other statement to the effect that a
Loan Party’s or Lender’s adherence to such provisions will be sufficient to ensure compliance by
such Loan Party or Lender with its contractual obligations or its duties under applicable law in
respect of Restricting Information and each of the Lenders and each Loan Party assumes the risks
associated therewith.
SECTION 9.10. Governing Law. This Agreement and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 9.11. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement
by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.12. Judgment. (a) If for the purposes of obtaining judgment in any court
it is necessary to convert a sum due hereunder in Dollars into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall
be that at which in accordance with normal banking procedures the Agent could purchase Dollars with
such other currency at Citibank’s principal office in London at 11:00 A.M. (London time) on the
Business Day preceding that on which final judgment is given.
(b) The obligation of the Borrower in respect of any sum due from it in any currency (the
“Primary Currency”) to any Lender or the Agent hereunder shall, notwithstanding any
judgment in any other currency, be discharged only to the extent that on the Business Day following
receipt by such Lender or the Agent (as the case may be), of any sum adjudged to be so due in such
other currency, such Lender or the Agent (as the case may be) may in accordance with normal banking
procedures purchase the applicable Primary Currency with such other currency; if the amount of the
applicable Primary Currency so purchased is less than such sum due to such Lender or the Agent (as
the case may be) in the applicable Primary Currency, the Borrower agrees, as a separate obligation
and notwithstanding any such judgment, to indemnify such Lender or the Agent (as the case may be)
against such loss, and if the amount of the applicable Primary Currency so purchased exceeds such
sum due to any Lender or the
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Avago Credit Agreement
Agent (as the case may be) in the applicable Primary Currency, such
Lender or the Agent (as the case may be) agrees to remit to the Borrower such excess.
SECTION 9.13. Jurisdiction. (a) Each U.S. Loan Party party hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction
of any New York State court or federal court of the United States of America sitting in New York
City, and any appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect
of any such action or proceeding may be heard and determined in any such New York State court or,
to the extent permitted by law, in such federal court. The Borrower and each other Non-U.S. Loan
Party party hereto hereby irrevocably and unconditionally submits, for itself and its property, to
the non-exclusive jurisdiction of any New York State court or federal court of the United States of
America sitting in New York City, and any appellate
court from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action
or proceeding may be heard and determined in any such New York State court or, to the extent
permitted by law, in such federal court. Each Loan Party party hereto hereby agrees that service
of process in any such action or proceeding brought in any such court may be made upon the Borrower
and each Loan Party party hereto hereby irrevocably appoints the Borrower its authorized agent to
accept such service of process, and agrees that the failure of the Borrower to give any notice of
any such service shall not impair or affect the validity of such service or of any judgment
rendered in any action or proceeding based thereon. Each Loan Party party hereto hereby further
irrevocably consent to the service of process in any action or proceeding in such courts by the
mailing thereof by any parties hereto by registered or certified mail, postage prepaid, to the
Borrower at its address specified pursuant to Section 9.02. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any action or
proceeding relating to the enforcement of any judgment relating to this Agreement or the Notes in
the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating to this Agreement or the
Notes in any New York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) Each Non-U.S. Loan Party party hereto hereby irrevocably designates, appoints and empowers
CT Corporation System (telephone number: 000-000-0000) (telecopy number: 212-894-8690) (address:
000 Xxxxxx Xxxxxx, Xxx Xxxx, X.X. 10011) (the “Process Agent”), in the case of any suit,
action or proceeding brought in the United States as its designee, appointee and agent to receive,
accept and acknowledge for and on its behalf, and in respect of its property, service of any and
all legal process, summons, notices and documents that may be served in any action or proceeding
arising out of or in connection with this Agreement or any other Credit Document. Such service may
be made by mailing (by registered or certified mail, postage prepaid) or delivering a copy of such
process to such Person in care of the Process Agent at the Process Agent’s above address, and such
Person hereby irrevocably authorizes and directs the Process Agent to accept such service on its
behalf. As an alternative method of service, each Loan Party party hereto irrevocably consents to
the service of any and all process in any such action or proceeding by the mailing (by registered
or certified mail, postage prepaid) of copies of such process to the Process Agent. Each Loan
Party party hereto agrees that a final
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Avago Credit Agreement
judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
SECTION 9.14. No Liability of the Issuing Banks. The Borrower assumes all risks of
the acts or omissions of any beneficiary or transferee of any Letter of Credit with respect to its
use of such Letter of Credit. Neither an Issuing Bank nor any of its officers or directors shall
be liable or responsible for: (a) the use that may be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in connection therewith; (b) the validity, sufficiency
or genuineness of documents, or of any endorsement thereon, even if such documents should prove to
be in any or all respects invalid, insufficient, fraudulent or forged; or (c) any other
circumstances whatsoever in making or failing to make payment under any Letter of Credit, except
that the Borrower shall have a claim against such Issuing Bank, and such Issuing Bank shall be
liable to the Borrower, to the extent of any direct, but not consequential, damages suffered by the
Borrower that the Borrower proves were caused by such Issuing
Bank’s willful misconduct or gross negligence when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof. In furtherance and not
in limitation of the foregoing, such Issuing Bank 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; provided that nothing herein shall be deemed to excuse such
Issuing Bank if it acts with gross negligence or willful misconduct in accepting such documents.
SECTION 9.15. Patriot Act Notice; Know-Your Customer; Anti-Money Laundering. (a)
Each Lender and the Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower
that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Agent, as applicable, to identify
the Borrower in accordance with the Patriot Act. The Borrower shall provide such information and
take such actions as are reasonably requested by the Agent or any Lenders in order to assist the
Agent and the Lenders in maintaining compliance with the Patriot Act.
(b) Each Loan Party shall promptly upon the request of the Agent or any Lender supply, or
procure the supply of, such documentation and other evidence as is reasonably requested by the
Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any
prospective new Lender) in order for the Agent, such Lender or any prospective new Lender to carry
out and be satisfied with the results of all necessary “know your customer” or other checks in
relation to any person that it is required (under any applicable law or regulation) to carry out in
respect of the transactions contemplated in the Loan Documents.
(c) Each Lender shall promptly upon the request of the Agent supply, or procure the supply of,
such documentation and other evidence as is reasonably requested by the Agent (for itself) in order
for the Agent to carry out and be satisfied with the results of all necessary “know your customer”
or other checks in relation to any person that it is required (under any applicable law or
regulation) to carry out in respect of the transactions contemplated in the Loan Documents.
(d) The Agent shall not be responsible (to any other party) for providing any certification or
documents with respect to information (except that in respect of itself) required for any
anti-money laundering due diligence purpose. Such certificates and related documents shall be
provided directly by the Borrower and other obligors provided that the request for such information
may be made through the Agent.
(e) No Lender shall be obliged to do or omit to do anything under this Agreement or any other
Loan Document if it would, in its reasonable opinion upon the advice of legal counsel,
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Avago Credit Agreement
constitute a
breach of any applicable anti-money laundering, counter-terrorism financing, trade or economic
sanctions law or regulation.
SECTION 9.16. Replacement of Lenders. If (a) any Lender requests compensation under
Section 2.11 or 2.14, (b) the Borrower is required to pay any additional amount to any Lender or
any governmental authority for the account of any Lender pursuant to Section 2.14, (c) any Lender
asserts illegality pursuant to Section 2.12, (d) any Lender is a Defaulting Lender or (e) any
Lender has not agreed to any amendment, waiver or consent for which (x) the consent of all of the
Lenders is required and (y) Lenders owed or holding at least 75% of the sum of all outstanding
Revolving Credit Advances plus the aggregate Unused Revolving Credit Commitments have agreed to
such amendment, waiver or consent, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Agent, require such Lender to assign and delegate, without recourse
(in accordance with and subject to the restrictions contained in, and consents required by, Section
9.07), all of its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment), provided that (i) each such assignment shall
be arranged by the Borrower after consultation with the Agent and shall be either an assignment of
all of the rights and obligations of the assigning Lender under this Agreement or an assignment of
a portion of such rights and obligations made concurrently with another such assignment or other
such assignments that together cover all of the rights and obligations of the assigning Lender
under this Agreement, (ii) no Lender shall be obligated to make any such assignment unless and
until such Lender shall have received one or more payments from either the Borrower or one or more
Eligible Assignees in an aggregate amount equal to the aggregate outstanding principal amount of
the Advances owing to such Lender, together with accrued interest thereon to the date of payment of
such principal amount and all other amounts payable to such Lender under this Agreement and (iii)
no Default shall have occurred and be continuing. A Lender shall not be required to make any such
assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise,
the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 9.17. Waiver of Jury Trial. Each of the Borrower, the Guarantors, the Agent
and the Lenders hereby irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this
Agreement or the Notes or the actions of the Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.
75
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above written.
AVAGO TECHNOLOGIES FINANCE PTE. LTD. |
||||
By: | /s/ Xxxxxxx Xxx | |||
Name: | Xxxxxxx Xxx | |||
Title: | Vice President and Treasurer | |||
Guarantors
AVAGO TECHNOLOGIES HOLDING PTE. LTD. |
||||
By: | /s/ Xxxxxxx Xxx | |||
Name: | Xxxxxxx Xxx | |||
Title: | Vice President and Treasurer | |||
AVAGO TECHNOLOGIES INTERNATIONAL SALES PTE. LIMITED |
||||
By: | /s/ Xxxxxxx Xxx | |||
Name: | Xxxxxxx Xxx | |||
Title: | Director, Vice President and Treasurer | |||
AVAGO TECHNOLOGIES U.S. INC. |
||||
By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxxxx | |||
Title: | Senior Vice President, Chief
Financial Officer and Secretary |
|||
AVAGO TECHNOLOGIES GENERAL IP (SINGAPORE) PTE. LTD. |
||||
By: | /s/ Xxxxxxx Xxx | |||
Name: | Xxxxxxx Xxx | |||
Title: | Director, Vice President and Treasurer | |||
Signature Page to Avago Credit Agreement
CITICORP INTERNATIONAL LIMITED as Agent |
||||
By: | /s/ Xxxxx Xxx | |||
Name: | Xxxxx Xxx | |||
Title: | Senior Vice President | |||
Signature Page to Avago Credit Agreement
CITIBANK, N.A. as Lender |
||||
By: | /s/ Xxxxx X. Xxx | |||
Name: | Xxxxx X. Xxx | |||
Title: | Vice President | |||
Signature Page to Avago Credit Agreement
BARCLAYS BANK PLC as Lender |
||||
By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Vice President | |||
Signature Page to Avago Credit Agreement
OVERSEA-CHINESE BANKING CORPORATION LTD. as Lender |
||||
By: | /s/ Xxxxxx Xxx | |||
Name: | Xxxxxx Xxx | |||
Title: | Head, Wholesale Corporate Marketing | |||
Signature Page to Avago Credit Agreement
DBS BANK LTD as Lender |
||||
By: | /s/ Xxxxxxx Xxxx | |||
Name: | Xxxxxxx Xxxx | |||
Title: | Managing Director | |||
Signature Page to Avago Credit Agreement
DEUTSCHE BANK AG NEW YORK BRANCH as Lender |
||||
By: | /s/ Xxxx Xxxxxxxx | |||
Name: | Xxxx Xxxxxxxx | |||
Title: | Managing Director | |||
By: | /s/ Xxxxxx Xxxxxx | |||
Name: | Xxxxxx Xxxxxx | |||
Title: | Director | |||
Signature Page to Avago Credit Agreement
XXXXXX XXXXXXX BANK, N.A. as Lender |
||||
By: | /s/ Xxxxxxxx Xxxxxx | |||
Name: | Xxxxxxxx Xxxxxx | |||
Title: | Authorized Signatory | |||
Signature Page to Avago Credit Agreement
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED, SINGAPORE BRANCH as Lender |
||||
By: | /s/ Xxxxxx Xxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxx | |||
Title: | Chief Executive Officer & Head of Institutional, Singapore |
|||
Signature Page to Avago Credit Agreement
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. Singapore Branch as Lender |
||||
By: | /s/ Xxxx Xxxxxxx | |||
Name: | Xxxx Xxxxxxx | |||
Title: | Deputy General Manager | |||
Signature Page to Avago Credit Agreement
JPMORGAN CHASE BANK, N.A. as Lender |
||||
By: | /s/ Goh Xxxx Xxx | |||
Name: | Goh Xxxx Xxx | |||
Title: | Vice President | |||
Signature Page to Avago Credit Agreement
Annex A
Agent’s Account
Correspondent Bank: Citibank, N.A., New York Branch
SWIFT: XXXXXX00
Beneficiary Bank A/C NO.: 00000000
Beneficiary Bank: Citibank, N.A., Hong Kong Branch
SWIFT: CITIHKHX
Beneficiary A/C No.: 5-888991001
Beneficiary Name: Citicorp International Limited
Attention: Loans Agency
SWIFT: XXXXXX00
Beneficiary Bank A/C NO.: 00000000
Beneficiary Bank: Citibank, N.A., Hong Kong Branch
SWIFT: CITIHKHX
Beneficiary A/C No.: 5-888991001
Beneficiary Name: Citicorp International Limited
Attention: Loans Agency