AMENDMENT NO. 2 TO CREDIT AGREEMENT
Exhibit 10.1
Execution Version
AMENDMENT NO. 2 TO CREDIT AGREEMENT
AMENDMENT NO. 2 TO CREDIT AGREEMENT, dated as of December 11, 2013 (this “Amendment”), is entered into by and among SENSATA TECHNOLOGIES B.V., a besloten vennootschap organized under the laws of the Netherlands (the “BV Borrower”), SENSATA TECHNOLOGIES FINANCE COMPANY, LLC, a Delaware limited liability company (the “US Borrower”, and together with the BV Borrower, the “Borrowers”), SENSATA TECHNOLOGIES INTERMEDIATE HOLDING B.V., a besloten vennootschap organized under the laws of the Netherlands (the “Parent”), the undersigned guarantors (together with the Parent, the “Guarantors”), XXXXXX XXXXXXX SENIOR FUNDING, INC., as sole lead arranger and bookrunner and as administrative agent on behalf of the lenders party to the Credit Agreement (as defined below) (in such capacity, the “Administrative Agent”) and the undersigned lenders (the “Lenders”).
PRELIMINARY STATEMENTS:
WHEREAS, the Borrowers, the Parent, the Administrative Agent and certain lenders entered into that certain Credit Agreement, dated as of May 12, 2011 (as amended, amended and restated, supplemented, waived or otherwise modified prior to the date hereof, the “Credit Agreement”; capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Credit Agreement);
WHEREAS, the Borrowers, the Parent, the Administrative Agent and the Lenders have agreed to amend the Credit Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto hereby agree as follows:
SECTION 1. Amendments to Credit Agreement. The Credit Agreement is, subject to the satisfaction (or waiver by the Administrative Agent) of the conditions precedent set forth in Section 3, hereby amended as follows:
(a) Section 1.01 of the Credit Agreement shall be amended by adding the following new definitions thereto in proper alphabetical order:
“Closing Date Term Loans” has the meaning specified in Section 2.01(a).
“Second Amendment” means that certain Amendment No. 2 to Credit Agreement, dated as of December 11, 2013, among the BV Borrower, the US Borrower, the Parent, the other Guarantors party thereto, Xxxxxx Xxxxxxx Senior Funding, Inc., as sole lead arranger and bookrunner and as the Administrative Agent, and certain Lenders party thereto.
“Second Amendment Effective Date” means the date on which all of the conditions contained in Section 3 of the Second Amendment have been satisfied or waived by the Administrative Agent.
“Second Amendment Term Loans” has the meaning specified in Section 2.01(a).
| Amendment No. 2 to Credit Agreement |
(b) Section 1.01 of the Credit Agreement is hereby amended by restating clause (a) of the definition of “Applicable Rate” as follows:
“(a) with respect to Term Loans, (A) for Eurodollar Rate Loans, 2.50% and (B) for Base Rate Loans, 1.50%;”.
(c) Section 1.01 of the Credit Agreement is hereby amended by replacing the reference to “1.00%” at the end of clause (c) of the definition of “Eurodollar Rate” with “0.75%”.
(d) Section 1.01 of the Credit Agreement is hereby amended by restating the definition of “Material Foreign Subsidiary” in its entirety as follows:
“Material Foreign Subsidiary” means, at any time, any Foreign Subsidiary that (a) contributed 10.0% or more of the Consolidated EBITDA of the BV Borrower for the period of four fiscal quarters most recently ended on or prior to the date of determination, (b) had consolidated assets representing 10.0% or more of the total consolidated assets of the BV Borrower on the last day of the most recent fiscal quarter ended on or prior to the date of determination or (c) owns any Material Intellectual Property or any Material Real Property. Notwithstanding the foregoing, any Foreign Subsidiary that (a) contributed less than 1.0% of the Consolidated EBITDA of the BV Borrower for the period of four fiscal quarters most recently ended on or prior to the date of determination or (b) had consolidated assets representing less than 1.0% of the total consolidated assets of the BV Borrower on the last day of the most recent fiscal quarter ended on or prior to the date of determination shall not in any event be considered a Material Foreign Subsidiary. Notwithstanding anything in the foregoing to the contrary, any Foreign Subsidiary organized under the laws of the People’s Republic of China (or any political subdivision thereof) shall not be deemed to be a Material Foreign Subsidiary or be required to be designated as a Material Foreign Subsidiary under any of the provisions of this definition.”
(e) Clause (b) of the definition of “Maturity Date” contained in Section 1.01 of the Credit Agreement shall be amended by replacing the phrase “May 12, 2018” with the phrase “May 12, 2019”.
(f) Section 1.01 of the Credit Agreement is hereby amended by inserting the following sentence at the end of the definition of “Term Commitment”: “On the Second Amendment Effective Date, an additional $100,000,000 of Term Commitment is available to the Borrowers.”.
(g) Section 2.01(a) of the Credit Agreement is hereby amended by restating such provision in its entirety as follows:
“(a) The Term Borrowing. Subject to the terms and conditions set forth herein, each Lender severally agrees to make to the BV Borrower or the US Borrower (as directed by the BV Borrower) (i) a single Dollar loan on the Closing Date (each, a “Closing Date Term Loan” and, collectively, the “Closing Date Term Loans”) in an amount equal to such Lender’s Term Commitment as of the Closing Date and (ii) a single Dollar loan on the Second Amendment Effective Date (each, a “Second Amendment Term Loan” and, collectively, the “Second Amendment Term Loans”) in an amount equal to such Lender’s Term Commitment as of the Second Amendment Effective Date. The Closing Date Term Loans and the Second Amendment Term Loans are for purposes of this Agreement, each , a “Term Loan” and, collectively, the “Term Loans”.
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Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.”
(h) Section 2.02(a)(x) of the Credit Agreement is hereby amended by restating such provision in its entirety as follows:
“(x) with respect to any Borrowing on either the Closing Date or the Second Amendment Effective Date, not later than 12:00 p.m. (noon) one (1) Business Day before the Closing Date or the Second Amendment Effective Date, as applicable”.
(i) Section 2.05(a)(v) of the Credit Agreement is hereby amended by replacing the reference to “prior to the first anniversary of the First Amendment Effective Date” with “prior to the six month anniversary of the Second Amendment Effective Date”.
(j) Section 2.07(a) of the Credit Agreement is hereby amended by restating such provision in its entirety as follows:
(a) The Borrowers shall repay to the Administrative Agent for the ratable account of the Term Lenders the aggregate outstanding principal amount of the Term Loans in quarterly installments payable on the last Business Day of each March, June, September and December, commencing on December 31, 2013, in an amount equal to (x) on each such date occurring on or prior to the Maturity Date of the Term Loan Facility, 0.25% of the sum of the aggregate principal amount of the Term Loan outstanding on the Second Amendment Effective Date and (y) the balance on the Maturity Date of the Term Loan Facility, which amount, in each case, shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05; provided, however, that the final principal installment shall be repaid on the Maturity Date for the Term Loan Facility and in any event shall be in an amount equal to the aggregate principal amount of the Term Loans outstanding on such date.
(k) Section 2.14(a) of the Credit Agreement is hereby amended by replacing the reference to “1.00%” contained in clause (vi) thereof with “0.75%”.
(l) Section 7.02(c)(iii) of the Credit Agreement is hereby amended by replacing the reference to “$100,000,000” contained therein with a reference to “$300,000,000”.
(m) Section 7.06 of the Credit Agreement is hereby amended by:
deleting the word “and” at the end of clause (h) thereof;
| (i) | replacing the “.” at the end of clause (i) thereof with “; and”; and |
| (ii) | inserting the following new clause (j): |
“(j) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, in addition to the foregoing Restricted Payments, the Ultimate Parent, the Parent, the Borrowers and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount not to exceed $150,000,000.”.
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(n) Schedule 2.01 of the Credit Agreement is hereby amended by restating it in its entirety to read as set forth on Schedule 1 hereto.
SECTION 2. Reference to and Effect on the Loan Documents.
(a) On and after the Effective Date (as defined below), each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the “Credit Agreement”, shall mean and be a reference to the Credit Agreement, as amended by this Amendment. For the avoidance of doubt, this Amendment shall also constitute a Loan Document under the Credit Agreement, as amended by the Amendment.
(b) The Credit Agreement, as specifically amended by this Amendment, and the other Loan Documents are, and shall continue to be, in full force and effect, and are hereby in all respects ratified and confirmed.
(c) Except as expressly provided herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under the Credit Agreement or any other Loan Document, nor shall it constitute a waiver of any provision of the Credit Agreement or any Loan Document.
SECTION 3. Conditions of Effectiveness for Amendment. This Amendment shall become effective as of the date (the “Effective Date”) on which the following conditions shall have been satisfied (or waived by the Administrative Agent):
(a) The Administrative Agent shall have received counterparts of this Amendment executed by the BV Borrower, the US Borrower, the Parent, the other Guarantors, and the Lenders party hereto, including any Revolving Credit Lenders that wish to consent, as well as any New Lenders or Increasing Lenders on, or prior to, 5:00 p.m., New York City time on December 9, 2013 (the “Consent Deadline”) ;
(b) The Administrative Agent shall have received a certified copy of the resolutions of the Board of Directors or other governing body, as applicable, of each Loan Party (or duly authorized committee thereof) authorizing this Amendment;
(c) The Administrative Agent shall have received a certificate of the BV Borrower dated as of the Effective Date signed on behalf of the BV Borrower by a Responsible Officer of the BV Borrower, certifying on behalf of the Borrowers that immediately before and after giving effect to this Amendment and the transactions contemplated hereby, the representations and warranties set forth in Article 5 of the Credit Agreement (as amended by this Amendment) and in the other Loan Documents are true and correct in all material respects as of the Effective Date, with the same effect as though made on and as of such date, except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, (ii) that for purposes of this Section 3(c), the representations and warranties contained in Sections 5.05(a) and 5.05(b) of the Credit Agreement (as amended by this Amendment) shall be deemed to refer to the most recent financial statements furnished pursuant to Sections 6.01(a) and 6.01(b) of the Credit Agreement (as amended by this Amendment) and, in the case of the financial statements furnished pursuant to Section 6.01(b) of the Credit Agreement (as amended by this Amendment), the representations contained in Section 5.05(a) of the Credit Agreement (as amended by this Amendment), as modified by this clause (ii), shall be qualified by the statement that such financial statements are subject to the absence of footnotes and year-end audit adjustments and (iii) to the extent that such representations and warranties contain a materiality qualification, such representations and warranties shall be accurate in all respects;
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(d) Immediately prior to and after giving effect to the Effective Date, no Default or Event of Default has occurred and is continuing; and
(e) The Borrowers shall have paid all fees required to be paid on the Effective Date as separately agreed in writing by the BV Borrower pursuant to that certain Amendment Fee Letter, dated on December 2, 2013, by and between the BV Borrower and Xxxxxx Xxxxxxx Senior Funding, Inc.
SECTION 4. Second Amendment Term Loans. Subject to the satisfaction or waiver of the conditions to borrowing set forth in the Credit Agreement and the conditions set forth in Section 3 hereof, on and as of the Second Amendment Effective Date, each Lender that is providing new or increased Term Commitments in connection with the Second Amendment Term Loans will make such Second Amendment Term Loans to the BV Borrower or the US Borrower (as directed by the BV Borrower) in an amount not to exceed its respective new Term Commitment or the amount of any increase in its Term Commitment.
SECTION 5. Representations and Warranties. Each of the Parent and the Borrowers hereby represents and warrants to the Administrative Agent that:
(a) on and as of the date hereof (i) it has all requisite corporate or other power and authority to enter into and perform its obligations under this Amendment, the Credit Agreement as amended hereby and the other Loan Documents to which it is a party, and (ii) this Amendment has been duly authorized, executed and delivered by it; and
(b) this Amendment, and the Credit Agreement as amended hereby, constitute legal, valid and binding obligations of such party, enforceable against it in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in equity or at law).
SECTION 6. New Lenders and Increasing Lenders. If any lender under the Credit Agreement declines or fails to consent to this Amendment by returning an executed counterpart of this Amendment to the Administrative Agent prior to the Consent Deadline, then pursuant to and in compliance with the terms of Section 10.01 of the Credit Agreement, such lender may be replaced and its commitments and/or obligations purchased and assumed by either a new lender (a “New Lender”) or an existing lender (an “Existing Lender”) which is willing to increase its Term Loans as set forth on such Lender’s signature page hereto (an “Increasing Lender”) upon execution of this Amendment (which will also be deemed to be the execution of an Assignment and Assumption Agreement substantially in the form of Exhibit A hereto).
SECTION 7. Costs and Expenses. The Borrowers agree that all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent in connection with the preparation, execution, delivery and administration, modification and amendment of this Amendment and the other instruments and documents to be delivered hereunder or in connection herewith (including, without limitation, the Attorney Costs of one counsel for all Lenders and the Administrative Agent (which shall be Shearman & Sterling LLP)), are expenses that the Borrowers are required to pay or reimburse pursuant to Section 10.04 of the Credit Agreement.
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SECTION 8. Execution in Counterparts. This Amendment may be executed in one or more counterparts (and by different parties hereto in different counterparts), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by telecopier or other electronic transmission of an executed counterpart of a signature page to this Amendment, including by email with a pdf copy hereof attached, shall be effective as delivery of an original executed counterpart of this Amendment.
SECTION 9. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 10. Waiver of Right of Trial by Jury. EACH PARTY TO THIS AMENDMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS AMENDMENT, OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THE CREDIT AGREEMENT AS AMENDED HEREBY, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 9 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
SECTION 11. Guarantor Affirmation. Each Guarantor party hereto hereby (a) acknowledges and consents to this Amendment; (b) ratifies and confirms all of its respective obligations and liabilities under the Loan Documents (as amended by the Amendment) to which it is a party and ratifies and confirms that such obligations and liabilities remain in full force and effect and extend to and continue in effect with respect to, and continue to guarantee and secure, as applicable, the obligations of the Borrowers under the Credit Agreement; (c) acknowledges and confirms, subject to Section 12 below in the case of the Guarantor organized under Bulgarian law (the “Bulgarian Guarantor”), the Guarantor which is the direct parent of the Bulgarian Guarantor (the “Belgian Guarantor”) and the Guarantor organized under Japanese law (the “Japanese Guarantor”), that immediately after giving effect to the Amendment the liens and security interests granted by it in the Collateral pursuant to the Collateral Documents continue to be valid and perfected (if and to the extent required to be perfected under the Collateral Documents to which it is a party) liens and security interests in the Collateral (subject only to Liens permitted under the Loan Documents) that secure all of the obligations of such Guarantor under the Loan Documents to which it is a party to the same extent that such liens and security interests in the Collateral were valid and perfected (if and to the extent required to be perfected under the Collateral Documents to which it is a party) immediately prior to giving effect to the execution and delivery of the Amendment; (d) acknowledges and agrees that such Guarantor does not have any claim or cause of action against the Administrative Agent or any Lender (or any of its respective directors, officers, employees, or agents) on or prior to the date hereof; and (e) acknowledges, affirms, and agrees that such Guarantor does not have any defense, claim, cause of action, counterclaim, offset or right of recoupment of any kind or nature against any of its obligations, indebtedness or liabilities to the Administrative Agent or any Lender on or prior to the date hereof.
SECTION 12. Waiver and Consent. The Administrative Agent and the Lenders hereby agree to waive each of the BV Borrower’s, the Belgian Guarantor’s, the Bulgarian Guarantor’s and the Japanese Guarantor’s compliance with all covenants and/or representations and warranties in the Loan Documents relating to the perfection of any security interest under, or
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enforceability of, any Collateral Document governed by Bulgarian law and Japanese law, as applicable, on the Second Amendment Effective Date and for a period of 90 days after the Second Amendment Effective Date (as such time period may be extended in the reasonable discretion of the Administrative Agent), during which period each of the BV Borrower, the Belgian Guarantor, the Bulgarian Guarantor and Japanese Guarantor will amend such Collateral Documents to reflect the amendments set forth in Section 1 of this Amendment and will take all requisite actions to ensure that it has granted in favor of the Administrative Agent, for the benefit of the Secured Parties, a valid and, to the extent required under the Collateral Documents to which it is a party, perfected security interest in its Collateral, as defined in such Collateral Documents.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to Credit Agreement to be executed by their respective authorized officers as of the date first above written.
| SENSATA TECHNOLOGIES B.V., | ||||
| as BV Borrower | ||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Director | |||
| SENSATA TECHNOLOGIES FINANCE COMPANY, LLC, as US Borrower | ||||
| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Chief Financial Officer | |||
| SENSATA TECHNOLOGIES INTERMEDIATE HOLDING B.V., as Parent | ||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Director | |||
Signature Page to
Amendment No. 2 to Credit Agreement
| SENSATA TECHNOLOGIES, INC., | ||||
| as Guarantor | ||||
| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Chief Financial Officer | |||
| SENSATA TECHNOLOGIES MASSACHUSETTS, INC., as Guarantor | ||||
| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Chief Financial Officer | |||
Signature Page to
Amendment No. 2 to Credit Agreement
| SENSATA TECHNOLOGIES HOLDING COMPANY US B.V., | ||||
| as Guarantor | ||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Director | |||
| SENSATA TECHNOLOGIES HOLLAND B.V., as Guarantor | ||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Director | |||
| SENSATA TECHNOLOGIES HOLDING COMPANY MEXICO B.V., as Guarantor | ||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Director | |||
Signature Page to
Amendment No. 2 to Credit Agreement
| SENSATA TECHNOLOGIES DE MÉXICO, S. DE X.X. DE C.V. | ||||
| as Guarantor | ||||
| By: | /s/ Xxxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxxxx | |||
| Title: | Attorney-in-Fact | |||
Signature Page to
Amendment No. 2 to Credit Agreement
| SENSATA TECHNOLOGIES JAPAN LIMITED, | ||||
| as Guarantor | ||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Representative Director | |||
Signature Page to
Amendment No. 2 to Credit Agreement
| SENSATA TECHNOLOGIES MALAYSIA SDN. BHD., | ||||
| as Guarantor | ||||
| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Director | |||
Signature Page to
Amendment No. 2 to Credit Agreement
| SENSOR-NITE INDUSTRIAL EOOD | ||||
| as Guarantor | ||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Director | |||
Signature Page to
Amendment No. 2 to Credit Agreement
| SENSOR-NITE NV, | ||||
| as Guarantor | ||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Director | |||
Signature Page to
Amendment No. 2 to Credit Agreement
| XXXXXX XXXXXXX SENIOR FUNDING, INC., as Administrative Agent | ||||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | V.P. | |||
Signature Page to
Amendment No. 2 to Credit Agreement
Term Lender Signature Page to Amendment No. 2 to Credit Agreement
[Term Lenders: please fill in the amount your institution currently holds in Term Loans in Column A, fill in one of Column B, C or D1, as appropriate, and then execute the signature block below. Please see the footnotes for explanations of which column to choose and the undertakings associated therewith. If multiple entities are being signed for by the same natural person, you may use one page and use a different line in the below table for each entity.]
| Name of Term Lender |
Existing Term Loans |
Roll up to2: | Recommit up to3: | Decline Amendment4 | ||||||||||
| $ | $ | $ | ||||||||||||
| [ ], | ||
| as [an Existing Lender] [an Increasing Lender][a New Lender] [a Non-Consenting Lender] | ||
| By: |
| |
| Name: | ||
| Title: | ||
| 1 | Lenders selecting Column B or C and executing this page will be deemed to consent to the Amendment. If applicable, such execution will also be deemed to be the execution of an Assignment and Assumption Agreement substantially in the form of Exhibit A hereto. |
| 2 | If amount exceeds existing Term Loan position, the incremental amount will be settled after the Effective Date. If amount is less than existing Term Loan position, the difference will be repaid on the Effective Date. |
| 3 | Use this column if entire existing Term Loan position needs to be repaid and the “recommitted” amount (including any increase above existing position) settled after the Effective Date. |
| 4 | Place a check xxxx in this column if you are declining the Amendment. For a Term Loan Lender, the entire existing Term Loan position of the specified Term Loan Lender will be repaid on the Effective Date. |
Signature Page to
Amendment No. 2 to Credit Agreement
EXHIBIT A
FORM OF
ASSIGNMENT AND ASSUMPTION
Reference is made to the Credit Agreement dated as of May 12, 2011 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein, unless otherwise defined herein, being used herein as therein defined) among SENSATA TECHNOLOGIES B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, (the “BV Borrower”), SENSATA TECHNOLOGIES FINANCE COMPANY, LLC, a Delaware limited liability company, (the “US Borrower”), SENSATA TECHNOLOGIES INTERMEDIATE HOLDING B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, the Lenders, the Initial L/C Issuer, the Initial Swing Line Lender and XXXXXX XXXXXXX SENIOR FUNDING INC.
Each “Assignor” referred to on Schedule 1 hereto (each, an “Assignor”) and each “Assignee” referred to on Schedule 1 hereto (each, an “Assignee”) agrees severally with respect to all information relating to it and its assignment hereunder and on Schedule 1 hereto as follows:
| 1. | Such Assignor hereby sells and assigns, without recourse except as to the representations and warranties made by it herein, to such Assignee, and such Assignee hereby purchases and assumes from such Assignor, an interest in and to such Assignor’s rights and obligations under the Credit Agreement as of the date hereof equal to the percentage interest specified on Schedule 1 hereto of all outstanding rights and obligations under the Facility or Facilities specified on Schedule 1 hereto. After giving effect to such sale and assignment, such Assignee’s Commitments and the amount of the Loans owing to such Assignee will be as set forth on Schedule 1 hereto. |
| 2. | Such Assignor (i) represents and warrants that its name set forth on Schedule 1 hereto is its legal name, that it is the legal and beneficial owner of the interest or interests being assigned by it hereunder and that such interest or interests are free and clear of any adverse claim; (ii) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document 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, any Loan Document or any other instrument or document furnished pursuant thereto; (iii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; and (iv) attaches the Note or Notes (if any) held by such Assignor and requests that the Administrative Agent exchange such Note or Notes for a new Note or Notes payable to the order of such Assignee in an amount equal to the Commitments assumed by such Assignee pursuant hereto or new Notes payable to the order of such Assignee in an amount equal to the Commitments assumed by such Assignee pursuant hereto and such Assignor in an amount equal to the Commitments retained by such Assignor under the Credit Agreement, respectively, as specified on Schedule 1 hereto. |
| 3. | Such Assignee (i) confirms that it has received a copy of the Credit Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption; (ii) agrees that it will, independently and without reliance upon any Agent, any Assignor or any other Lender Party 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 the Credit Agreement; (iii) represents and warrants that |
| A - 1 | Form of Assignment and Assumption |
| its name set forth on Schedule 1 hereto is its legal name; (iv) confirms that it is an Eligible Assignee; (v) appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto; (vi) agrees that it will perform in accordance with their terms all of the obligations that by the terms of the Credit Agreement are required to be performed by it as a Lender Party; and (vii) attaches any information related to Taxes as required by Article 3 of the Credit Agreement. |
| 4. | [Such Assignee is an Affiliated Lender and hereby represents and warrants that (i) after giving effect to this Assignment and Assumption, the aggregate principal amount of Total Outstanding Term Loans held by all Affiliated Lenders will not exceed 25% of the original principal amount of all Total Outstanding Term Loans at such time and (ii) such Assignee does not possess any MNPI with respect to any Loan Party that both (x) has not been disclosed to the assigning Lender (other than because such assigning Lender does not wish to receive MNPI with respect to any Loan Party) prior to such date and (y) could reasonably be expected to have a material effect upon, or otherwise be material to, a Lender’s decision to assign Loans to such Affiliated Lender.]5 [The Assignee hereby represents and warrants that it is not an Affiliated Lender.]6 |
| 5. | Following the execution of this Assignment and Assumption, it will be delivered to the Administrative Agent for acceptance and recording by the Administrative Agent. The effective date for this Assignment and Assumption (the “Effective Date”) shall be the date of acceptance hereof by the Administrative Agent, unless otherwise specified on Schedule 1 hereto. |
| 6. | Upon such acceptance and recording by the Administrative Agent, as of the Effective Date, (i) such Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment and Assumption, have the rights and obligations of a Lender thereunder and (ii) such Assignor shall, to the extent provided in this Assignment and Assumption, relinquish its rights and be released from its obligations under the Credit Agreement (other than its rights and obligations under the Loan Documents that are specified under the terms of such Loan Documents to survive the payment in full of the Obligations of the Loan Parties under the Loan Documents to the extent any claim thereunder relates to an event arising prior to the Effective Date of this Assignment and Assumption) and, if this Assignment and Assumption covers all of the remaining portion of the rights and obligations of such Assignor under the Credit Agreement, such Assignor shall cease to be a party thereto. |
| 7. | Upon such acceptance and recording by the Administrative Agent, from and after the Effective Date, the Administrative Agent shall make all payments under the Credit Agreement and the other Loan Documents in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and commitment fees with respect thereto) to such Assignee. Such Assignor and such Assignee shall make all appropriate adjustments in payments under the Credit Agreement and the other Loan Documents for periods prior to the Effective Date directly between themselves. |
| 8. | This Assignment and Assumption shall be governed by, and construed in accordance with, the laws of the State of New York. |
| 9. | This Assignment and Assumption 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 Schedule 1 to this Assignment and Assumption by telecopier shall be effective as delivery of an original executed counterpart of this Assignment and Assumption. |
IN WITNESS WHEREOF, each Assignor and each Assignee have caused Schedule 1 to this Assignment and Assumption to be executed by their officers thereunto duly authorized as of the date specified thereon.
| 5 | Insert for an Assignee that is an Affiliated Lender |
| 6 | Insert for an Assignee that is not an Affiliated Lender |
| A - 2 | Form of Assignment and Assumption |
SCHEDULE 1
TO
ASSIGNMENT AND ASSUMPTION
| Revolving Credit Loan |
||||
| Percentage interest assigned |
% | |||
| Dollar Revolving Credit Commitment assigned |
$ | |||
| Euro Revolving Credit Commitment assigned |
€ | |||
| Term Loan Facility |
||||
| Percentage interest assigned |
% | |||
| Term Loans assigned |
$ | |||
Effective Date (if other than date of acceptance by Administrative Agent):
7 , 20
| Assignor | ||
| , as Assignor | ||
| [Type or print legal name of Assignor] | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Dated: , 20 | ||
| Assignee | ||
| , as Assignee | ||
| [Type or print legal name of Assignee] | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Dated: , 20 | ||
| Domestic Lending Office: | ||
| Eurodollar Lending Office: | ||
| 7 | This date should be no earlier than five Business Days after the delivery of this Assignment and Assumption to the Administrative Agent. |
| Accepted [and Approved] this day of , 20 | ||
| [XXXXXX XXXXXXX SENIOR FUNDING, INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
| [L/C ISSUER] [SWING LINE LENDER], as [L/C Issuer] [Swing Line Lender]9 | ||
| By: |
| |
| Name: | ||
| Title: | ||
| 8 | Required if Assignee is a Person other than a Lender, an Affiliate of a Lender or an Approved Fund. |
| 9 | Required in case of any assignment of a Revolving Credit Commitment. |
| Accepted [and Approved] this day of , 20 |
||||||
| [NAME OF BORROWER]10 | ||||||
| By: |
| |||||
| Name: | ||||||
| Title: | ||||||
| 10 | Required except (i) in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or (ii) if an Event of Default has occurred and is continuing under Section 8.01(a), Section 8.01(f) or Section 8.01(g)(i) of the Credit Agreement. |
