TRANSACTION
[Citigroup Logo]
|
Date: |
|
March 20, 2007 |
|
|
|
|
|
To: |
|
|
|
|
|
|
|
Attn: |
|
Xxxxx Xxxx, VP Finance |
|
Phone: |
|
|
|
Fax: |
|
|
|
Email: |
|
|
|
|
|
|
|
From: |
|
Citibank N.A., New York |
|
|
|
|
|
Phone: |
|
0-000-000-0000 |
|
Fax: |
|
0-000-000-0000 |
|
|
|
|
|
Our ref: |
|
M071483 |
|
Your ref: |
|
|
TRANSACTION
The purpose of this letter agreement (this ‘Confirmation’) is to set forth the terms and conditions of the Transaction entered into between OMNIVISION TECHNOLOGIES INC (‘Counterparty’) and Citibank N.A., New York (‘Citibank’) on the Trade Date specified below (the ‘Transaction’).
1. The definitions and provisions contained in the 2000 ISDA Definitions (the ‘Definitions’) (as published by the International Swaps and Derivatives Association, Inc.) are incorporated into this Confirmation. References herein to a ‘Transaction’ shall be deemed to be references to a ‘Swap Transaction’ for the purposes of the Definitions.
This Confirmation evidences a complete and binding agreement between you and us as to the terms of the Transaction to which this Confirmation relates. In addition, you and we agree to use all reasonable efforts promptly to negotiate, execute and deliver an agreement in the form of an ISDA Master Agreement, with such modifications as you and we will in good faith agree. Upon the execution by you and us of such an agreement, this Confirmation will supplement, form part of, and be subject to that agreement. All provisions contained in, or incorporated by reference in, that agreement upon its execution will govern this Confirmation except as expressly modified below. Until we execute and dcliver that agreement, this Confirmation, together with all other documents referring to an ISDA
1
Master Agreement (each a ‘Confirmation’) confirming transactions (each a ‘Transaction’) entered into between us (notwithstanding anything to the contrary in a Confirmation), shall supplement, form a part of, and be subject to, a single agreement (the Agreement) in the pre-printed form of the 1992 ISDA Master Agreement (Multicurrency Cross Border) (the ISDA Form) as if, on the Trade Date of the first such Transaction between us, we had executed a single agreement in such form (but without any Schedule except for the election of the laws of the State of New York as the governing law, USD as the Termination Currency, Credit Event Upon Merger, Second Method and Market Quotation as applying and basic Set-Off provision contained in Section V A. of the User’s Guide to the 1992 ISDA Master Agreements 1993 Edition published by ISDA being incorporated by reference). The Agreement shall contain such other modifications (including additional elections) to the ISDA Form (each, an Agreement Modification) as may be agreed by the parties from time to time. Any Agreement Modification may be set forth in any Confirmation (whether or not it would form part of the Schedule to the ISDA Master Agreement and notwithstanding the termination or expiry of the Transaction(s) detailed in any such Confirmation). To the extent of any inconsistency between the provisions of the ISDA Form and this Confirmation, this Confirmation will prevail for the purposes of this Transaction. To the extent of any inconsistency between any Agreement Modification and a prior Agreement Modification, the terms of the Agreement Modification set forth in the most recent Confirmation shall govern.
THIS CONFIRMATION WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ALL MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN, AND ANY CLAIM OF INCONVENIENT FORUM WITH RESPECT TO THESE COURTS.
U.S. Federal law requires Citibank to obtain, verify and record customer identification information.
2. The terms of the particular Transaction to which this Confirmation relates are as follows:
|
|
Trade Date: |
|
March 19, 2007 |
|
|
|
|
|
|
|
|
|
|
Effective Date: |
|
April 1, 2007 |
|
|
|
|
|
|
|
|
|
Termination Date: |
|
April 1, 2017, subject to adjustment in accordance with the Modified Following Business Day Convention |
Fixed Amounts
|
|
Fixed Rate Payer: |
|
Counterparty |
2
|
|
Notional Amount: |
|
With respect to each Calculation Period, the amount set forth in Exhibit I attached hereto opposite such Calculation Period under the heading ‘Notional Amount’ |
|
|
|
|
|
|
|
|
|
|
Fixed Rate Payer |
|
The 1st calendar day of each month commencing May 1, 2007 through and including the Termination Date |
|
|
|
|
|
|
|
|
|
Fixed Rate: |
|
5.2700000 percent |
|
|
|
|
|
|
|
|
|
Fixed Rate |
|
Actual/360 |
|
|
|
|
|
|
|
|
|
Business Days: |
|
New York, London |
|
|
|
|
|
|
|
|
|
Business Day Convention: |
|
Modified Following |
Floating Amounts
|
|
Floating Rate Payer: |
|
Citibank |
|
|
|
|
|
|
|
|
|
|
Notional Amount: |
|
With respect to each Calculation Period, the amount set forth in Exhibit I attached hereto opposite such Calculation Period under the heading ‘Notional Amount’ |
|
|
|
|
|
|
|
|
|
Floating Rate Payer |
|
The 1st calendar day of each month commencing May 1, 2007, through and including the Termination Date |
|
|
|
|
|
|
|
|
|
Floating Rate Option: |
|
USD-LIBOR-BBA |
|
|
|
|
|
|
|
|
|
Designated Maturity: |
|
One month |
3
|
|
Spread: |
|
None |
|
|
|
|
|
|
|
|
|
|
Floating Rate |
|
Actual/360 |
|
|
|
|
|
|
|
|
|
Reset Dates: |
|
The first day of each Floating Rate Payer Calculation Period |
|
|
|
|
|
|
|
|
|
Compounding: |
|
Inapplicable |
|
|
|
|
|
|
|
|
|
Business Days: |
|
New York, London |
|
|
|
|
|
|
|
|
|
Business Day Convention: |
|
Modified Following |
|
|
|
|
|
|
|
|
|
Calculation Agent: |
|
As per Master Agreement. |
Representations. Section 3 of the Agreement is hereby amended by adding the following subsections after subsection (f) thereof:
A. Non-Reliance. It is acting for its own account, and it has made its own independent decisions to enter into this Transaction and as to whether this Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisors as it has deemed necessary. It is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into this Transaction; it being understood that infonnation and explanations related to the terms and conditions of this Transaction shall not be considered investment advice or a recommendation to enter into this Transaction. It has not received from the other party any assurance or guarantee as to the expected results of this Transaction.
B. Evaluation and Understanding. It is capable of evaluating and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of this Transaction. It is also capable of assuming, and assumes, the financial and other risks of this Transaction.
C. Status of Parties. The other party is not acting as a fiduciary or an advisor for it in rcspect of this Transaction.
D. Risk Management. It has entered into this Transaction for the purpose of (i) managing its borrowings or investments, (ii) hedging its underlying assets or liabilities or (iii) in connection with its line of business.
4
E. No Agency. It is entering into this Agreement, any Credit Support Document to which it is a party, and each Transaction, and any other documentation relating to this Agreement or any Transaction, as principal (and not as agent or in any other capacity, fiduciary or otherwise).
A. Additional Termination Event.
“Additional Termination Events” shall apply. On and after the Closing Date, each of the following shall constitute an Additional Termination Event and Party B shall be the sole Affected Party with respect thereto:-
(1) At any time, Citibank or any of its Affiliates, as the case may be, ceases to be a party to the Credit Agreement.
(2) At any time, Citibank or any of its Affiliates receives a notice or letter or other form of writing (whether from Citibank’s own Affiliates, Counterparty or Counterparty’s Affiliates or any other entity) indicating that a Cancellation Event has occurred or shall occur or take effect after the delivery of such notice, letter or other form of writing.
(3) At any time, the obligations and liabilities of Counterparty under this Transaction fail to rank, be secured or be guaranteed, in each case,
(i) on a pari passu basis with or equal in right or priority of payment with the obligations and liabilities of Counterparty and any of its Affiliates under the Loan Documents.
B. Additional Event of Default
Section 5(a) is hereby amended by inserting the following paragraph at the end thereof:
“(ix) With respect to Counterparty only, at any time a default, event of default or other similar condition or event (however described) occurs with respect to Counterparty under the Credit Agreement.”
C. Additional Definitions.
Section 14 is hereby amended by inserting the following definitions in their appropriate alphabetical order:-
5
“Cancellation Event”
Means (x) any expiration, termination or cancellation of the Credit Agreement, whether by reason of payment of all indebtedness incurred thereunder or otherwise or (y) the Credit Agreement ceases, for any reason, to be in full force and effect.
“Credit Agreement”
Means the Loan and Security Agreement, dated on March 16, 2007 (as amended, supplemented, waived or otherwise modified from time to time) by and among Counterparty, (to the extent applicable) the relevant Affiliates of Counterparty, and the banks or lenders from time to time parties thereto. For clarification, said Credit Agreement shall not incorporate or reference any agreement in respect of (x) any refinancing or extension, in each case, in whatever form, of the initial credit facility evidenced by said Credit Agreement (said initial credit facility, the “Initial Credit Facility”) or (y) any substitute credit facility.
“Collateral Documents”
Means any and all Security Documents and Guarantees that secure or guarantee or purports to secure or to guarantee, as the case may be, the performance or payment of the obligations and liabilities of the Counterparty under this Confirmation or in respect of this Transaction.
“Guarantees”
Means any and all guarantees issued at any time by Counterparty or any of its Affiliates in respect of indebtedness incurred under the Credit Agreement.
“Loan Documents”
Means the collective reference to the Credit Agreement, the Guarantees, the Security Documents, and any other document or instrument executed and delivered by Counterparty and/or any of its Affiliates in respect of the Initial Credit Facility.
“Security Documents”
Means any and all pledge and/or security agreements and any other document executed and delivered at any time in respect of the granting of any lien (however described) on any property or asset of Counterparty and/or any of its Affiliates to secure the performance or payment of the obligations and liabilities of each of Counterparty and its Affiliates under the Credit Agreement and the Guarantees.
4. Account Details
|
|
Payments to
Citibank |
|
Bank: Citibank NA New York |
6
Payments to Counterparty: Please provide to expedite payment
If you have any questions regarding this letter agreement, please contact the Swap Operations Department at the telephone numbers or the facsimile numbers indicated on this Confirmation. Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Confirmation enclosed for that purpose and returning it to us.
|
Very truly yours, |
|||
|
|
|
||
|
|
Citibank N.A., New York |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ XXXXX X. XXXXXXXXXXXX |
|
Accepted and confirmed as
of the Trade Date:
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Xxxxx Xxxx |
|
|
|
Authorized Signatory |
|
|
||
EXHIBIT
I-AMORTIZATION SCHEDULE
Our Reference: M071483
|
Calculation Period** |
|
|
|
USD |
|
|
|
|
|
|
|
From and including |
|
To but excluding |
|
Notional Amount |
|
01 Apr 2007 |
|
01 May 2007 |
|
27,927,045.00 |
|
01 May 2007 |
|
01 Jun 2007 |
|
27,880,906.73 |
|
01 Jun 2007 |
|
01 Jul 2007 |
|
27,834,768.46 |
|
02 Jul 2007 |
|
01 Aug 2007 |
|
27,788,630.19 |
|
01 Aug 2007 |
|
01 Sep 2007 |
|
27,742,491.92 |
|
04 Sep 2007 |
|
01 Oct 2007 |
|
27,696,353.65 |
7
|
01 Oct 2007 |
|
01 Nov 2007 |
|
27,650,215.38 |
|
01 Nov 2007 |
|
01 Dec 2007 |
|
27,604,077.11 |
|
03 Dec 2007 |
|
01 Jan 2008 |
|
27,557,938.84 |
|
02 Jan 2008 |
|
01 Feb 2008 |
|
27,511,800.57 |
|
01 Feb 2008 |
|
01 Mar 2008 |
|
27,465,662.30 |
|
03 Mar 2008 |
|
01 Apr 2008 |
|
27,419,524.03 |
|
01 Apr 2008 |
|
01 May 2008 |
|
27,373,385.76 |
|
01 May 2008 |
|
01 Jun 2008 |
|
27,327,247.49 |
|
02 Jun 2008 |
|
01 Jul 2008 |
|
27,281,109.22 |
|
01 Ju1 2008 |
|
01 Aug 2008 |
|
27,234,970.95 |
|
01 Aug 2008 |
|
01 Sep 2008 |
|
27,188,832.68 |
|
02 Sep 2008 |
|
01 Oct 2008 |
|
27,142,694.41 |
|
01 Oct 2008 |
|
0l Nov 2008 |
|
27,096,556.14 |
|
03 Nov 2008 |
|
01 Dec 2008 |
|
27,050,417.87 |
|
01 Dec 2008 |
|
01 Jan 2009 |
|
27,004,279.60 |
|
02 Jan 2009 |
|
01 Feb 2009 |
|
26,958,141.33 |
|
02 Feb 2009 |
|
01 Mar 2009 |
|
26,912,003.06 |
|
02 Mar 2009 |
|
01 Apr 2009 |
|
26,865,864.79 |
|
01 Apr 2009 |
|
01 May 2009 |
|
26,819,726.52 |
|
01 May 2009 |
|
01 Jun 2009 |
|
26,773,588.25 |
|
01 Jun 2009 |
|
01 Jul 2009 |
|
26,727,449.98 |
|
01 Jul 2009 |
|
01 Aug 2009 |
|
26,681,311.71 |
|
03 Aug 2009 |
|
01 Sep 2009 |
|
26,635,173.44 |
|
01 Sep 2009 |
|
01 Oct 2009 |
|
26,589,035.17 |
|
01 Oct 2009 |
|
01 Nov 2009 |
|
26,542,896.90 |
|
02 Nov 2009 |
|
01 Dec 2009 |
|
26,496,758.63 |
|
01 Dec 2009 |
|
01 Jan 2010 |
|
26,450,620.36 |
|
04 Jan 2010 |
|
01 Feb 2010 |
|
26,404,482.09 |
|
01 Feb 2010 |
|
01 Mar 2010 |
|
26,358,343.82 |
|
01 Mar 2010 |
|
01 Apr 2010 |
|
26,312,205.55 |
|
01 Apr 2010 |
|
01 May 2010 |
|
26,266,067.28 |
|
04 May 2010 |
|
01 Jun 2010 |
|
26,219,929.01 |
|
01 Jun 2010 |
|
01 Jul 2010 |
|
26,173,790.74 |
|
01 Jul 2010 |
|
01 Aug 2010 |
|
26,127,652.47 |
|
02 Aug 2010 |
|
01 Sep 2010 |
|
26,081,514.20 |
|
01 Sep 2010 |
|
01 Oct 2010 |
|
26,035,375.93 |
|
01 Oct 2010 |
|
01 Nov 2010 |
|
25,989,237.66 |
8
|
01 Nov 2010 |
|
01 Dec 2010 |
|
25,943,099.39 |
|
01 Dec 2010 |
|
01 Jan 2011 |
|
25,896,961.12 |
|
04 Jan 2011 |
|
01 Feb 2011 |
|
25,850,822.85 |
|
01 Feb 2011 |
|
01 Mar 2011 |
|
25,804,684.58 |
|
01 Mar 2011 |
|
01 Apr 2011 |
|
25,758,546.31 |
|
01 Apr 2011 |
|
01 May 2011 |
|
25,712,408.04 |
|
03 May 2011 |
|
01 Jun 2011 |
|
25,666,269.77 |
|
01 Jun 2011 |
|
01 Ju1 2011 |
|
25,620,131.50 |
|
01 Jul 2011 |
|
01 Aug 2011 |
|
25,573,993.23 |
|
01 Aug 2011 |
|
01 Sep 2011 |
|
25,527,854.96 |
|
01 Sep 2011 |
|
01 Oct 2011 |
|
25,481,716.69 |
|
03 Oct 2011 |
|
01 Nov 2011 |
|
25,435,578.42 |
|
01 Nov 2011 |
|
01 Dee 2011 |
|
25,389,440.15 |
|
01 Dec 2011 |
|
01 Jan 2012 |
|
25,343,301.88 |
|
03 Jan 2012 |
|
01 Feb 2012 |
|
25,297,163.61 |
|
01 Feb 2012 |
|
01 Mar 2012 |
|
25,251,025.34 |
|
01 Mar 2012 |
|
01 Apr 2012 |
|
25,204,887.07 |
|
02 Apr 2012 |
|
01 May 2012 |
|
25,158,748.80 |
|
01 May 2012 |
|
01 Jun 2012 |
|
25,112,610.53 |
|
01 Jun 2012 |
|
01 Jul 2012 |
|
25,066,427.26 |
|
02 Jul 2012 |
|
01 Aug 2012 |
|
25,020,333.99 |
|
01 Aug 2012 |
|
01 Sep 2012 |
|
24,974,195.72 |
|
04 Sep 2012 |
|
01 Oct 2012 |
|
24,928,057.45 |
|
01 Oct 2012 |
|
01 Nov 2012 |
|
24,881,919.18 |
|
01 Nov 2012 |
|
01 Dec 2012 |
|
24,835,780.91 |
|
03 Dec 2012 |
|
01 Jan 2013 |
|
24,789,642.64 |
|
02 Jan 2013 |
|
01 Feb 2013 |
|
24,743,504.37 |
|
01 Feb 2013 |
|
01 Mar 2013 |
|
24,697,366.10 |
|
01 Mar2013 |
|
01 Apr 2013 |
|
24,651,227.83 |
|
02 Apr 2013 |
|
01 May 2013 |
|
24,605,089.56 |
|
01 May 2013 |
|
01 Jun 2013 |
|
24,558,951.29 |
|
03 Jun 2013 |
|
01 Jul 2013 |
|
24,512,813.02 |
|
01 Jul 2013 |
|
01 Aug 2013 |
|
24,466,674.75 |
|
01 Aug 2013 |
|
01 Sep 2013 |
|
24,420,536.48 |
|
03 Sep 2013 |
|
01 Oct 2013 |
|
24,374,398.21 |
|
01 Oct 2013 |
|
01 Nov 2013 |
|
24,328,259.94 |
|
01 Nov 2013 |
|
01 Dec 2013 |
|
24,282,121.67 |
9
|
02 Dec 2013 |
|
01 Jan 2014 |
|
24,235,983.40 |
|
02 Jan 2014 |
|
01 Feb 2014 |
|
24,189,845.13 |
|
03 Feb 2014 |
|
01 Mar 2014 |
|
24,143,706.86 |
|
03 Mar 2014 |
|
01 Apr 2014 |
|
24,097,568.59 |
|
01 Apr 2014 |
|
01 May 2014 |
|
24,051,430.32 |
|
01 May 2014 |
|
01 Jun 2014 |
|
24,005,292.05 |
|
02 Jun 2014 |
|
01 Ju1 2014 |
|
23,959,153.78 |
|
01 Ju1 2014 |
|
01 Aug 2014 |
|
23,913,015.51 |
|
01 Aug 2014 |
|
01 Sep 2014 |
|
23,866,877.24 |
|
02 Sep 2014 |
|
01 Oct 2014 |
|
23,820,738.97 |
|
01 Oct 2014 |
|
01 Nov 2014 |
|
23,774,600.70 |
|
03 Nov 2014 |
|
01 Dec 2014 |
|
23,728,462.43 |
|
01 Dec 2014 |
|
01 Jan 2015 |
|
23,682,324.16 |
|
02 Jan 2015 |
|
01 Feb 2015 |
|
23,636,185.89 |
|
02 Feb 2015 |
|
01 Mar 2015 |
|
23,590,047.62 |
|
02 Mar 2015 |
|
01 Apr 2015 |
|
23,543,909.35 |
|
01 Apr 2015 |
|
01 May 2015 |
|
23,497,771.08 |
|
01 May 2015 |
|
01 Jun 2015 |
|
23,451,632.81 |
|
01 Jun 2015 |
|
01 Jul 2015 |
|
23,405,494.54 |
|
01 Jul 2015 |
|
01 Aug 2015 |
|
23,359,356.27 |
|
03 Aug 2015 |
|
01 Sep 2015 |
|
23,313,218.00 |
|
01 Sep 2015 |
|
01 Oct 2015 |
|
23,267,079.73 |
|
01 Oct 2015 |
|
01 Nov 2015 |
|
23,220,941.46 |
|
02 Nov 2015 |
|
01 Dec 2015 |
|
23,174,803.19 |
|
01 Dec 2015 |
|
01 Jan 2016 |
|
23,128,664.92 |
|
04 Jan 2016 |
|
01 Feb 2016 |
|
23,082,526.65 |
|
01 Feb 2016 |
|
01 Mar 2016 |
|
23,036,388.38 |
|
01 Mar 2016 |
|
01 Apr 2016 |
|
22,990,250.11 |
|
01 Apr 2016 |
|
01 May 2016 |
|
22,944,111.84 |
|
03 May 2016 |
|
01 Jun 2016 |
|
22,897,973.57 |
|
01 Jun 2016 |
|
01 Jul 2016 |
|
22,851,835.30 |
|
01 Jul 2016 |
|
01 Aug 2016 |
|
22,805.697.03 |
|
01 Aug 2016 |
|
01 Sep 2016 |
|
22,759,558.76 |
|
01 Sep 2016 |
|
01 Oct 2016 |
|
22,713,420.49 |
|
03 Oct 2016 |
|
01 Nov 2016 |
|
22,667,282.22 |
|
01 Nov 2016 |
|
01 Dec 2016 |
|
22,621,143.95 |
|
01 Dec 2016 |
|
01 Jan 2017 |
|
22,575,005.68 |
10
|
03 Jan 2017 |
|
01 Feb 2017 |
|
22,528,867.41 |
|
01 Feb 2017 |
|
01 Mar 2017 |
|
22,482,729.14 |
|
01 Mar 2017 |
|
03 Apr 2017 |
|
22,436,590.87 |
**With respect to the Fixed Amounts and Floating Amounts, Exhibit I is subject to adjustment in accordance with the Modified Following Business Day Convention.
“Modified Following” is specified, that date will be the first following day that is a Business Day unless that day falls in the next calendar month, in which case that date will be the first preceding day that is a Business Day.
11
