WAIVER dated as of June 10, 2009 (this "Waiver"), to the Credit Agreement dated as of February 28, 2008, as amended and restated as of February 19, 2009 (as further amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), among TECHNITROL, INC., a Pennsylvania corporation (the "Company"), SUBSIDIARIES of the Company party thereto, the LENDERS party thereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.
Capitalized terms used but not otherwise defined herein have the meanings assigned to them in the Credit Agreement.
Pulse Denmark ApS has entered into share purchase agreement, dated as of June 2, 2009, with Xilco A/S (the "Medtech Disposition Agreement"), pursuant to which the Company has agreed to sell its Medtech components business for $200,000,000, subject to working capital adjustment (such sale being referred to as the "Medtech Disposition").
In connection with the Medtech Disposition, the Company has requested a waiver to the Credit Agreement as set forth herein. The Required Lenders are willing to agree to such waiver on the terms and subject to the conditions set forth herein.
Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1.Waiver. The Lenders party hereto hereby waive any Default or Event of Default arising under Section 7.11(a) of the Credit Agreement as a result of the ratio of Consolidated EBITDA to Consolidated Fixed Charges for the four consecutive fiscal quarters of the Company ending on June 26, 2009, determined on a consolidated basis in accordance with GAAP, being less than 2.00 to 1.00;provided that the effectiveness of such waiver shall be subject to the consummation of the Medtech Disposition, substantially on the terms set forth in the Medtech Disposition Agreement, on or prior to June 26, 2009.
SECTION 2.Representations and Warranties. The Company represents and warrants to the Agents, the Lenders and the L/C Issuers that:
(a) this Waiver has been duly and validly executed by the Company and constitutes the legal, valid, and binding obligations of the Company, enforceable against the Company in accordance with its terms, except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency and other similar laws affecting creditor's rights generally;
(b) all representation and warranties of each of the Borrowers contained in the Credit Agreement are true and correct in all material respects as of the date hereof (except with respect to representations and warranties expressly made only as of an earlier date, which representations were true and correct in all material respects as of such earlier date); and
(c) no Default has occurred and is continuing on the date hereof.
SECTION 3.Effectiveness. This Waiver shall become effective on the first date (the "Waiver Effective Date") on which each the following conditions shall have been satisfied:
(a) the Administrative Agent shall have received:
- duly executed counterparts hereof that, when taken together, bear the authorized signatures of each of the Company, the Administrative Agent and the Required Lenders; and
- a certificate of the chief financial officer of the Company, dated the Waiver Effective Date, certifying that the representations and warranties set forth in Section 2 hereof (in each case, substituting all references therein to the "date hereof" with references to the "Waiver Effective Date") are true and correct as of the Waiver Effective Date; and
(b) the Administrative Agent shall have received reimbursement or payment of all out-of-pocket expenses incurred in connection with this Waiver and payable by the Company pursuant to the Credit Agreement.
SECTION 4.No Other Waivers. Except as expressly set forth herein, this Waiver shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Agents, the Lenders and the L/C Issuers under any Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in any Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle any Loan Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in any Loan Document in similar or different circumstances. This Waiver shall apply and be effective only with respect to the provisions in the Credit Agreement specifically referred to herein. This Waiver shall constitute a Loan Document for all purposes u nder the Credit Agreement and the other Loan Documents. On and after the Waiver Effective Date, any reference to the Credit Agreement contained in the Loan Documents shall mean the Credit Agreement as modified hereby.
SECTION 5.GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 6.Counterparts. This Waiver may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Waiver by facsimile shall be effective as delivery of a manually executed counterpart of this Waiver.
SECTION 7.Headings. The headings of this Waiver are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
[Signature pages follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be duly executed by their respective authorized officers as of the date first above written.
TECHNITROL, INC.
by:/s/ Drew A. Moyer
Name: Drew A. Moyer
Title: Sr. Vice President & CFO
JPMORGAN CHASE BANK, N.A., as Lender
and as Administrative Agent
by:/s/ Deborah R. Winkler
Name: Deborah R. Winkler
Title: Vice President
LENDER: Bank of America, N.A.
by:/s/ Michael Strigel
Name: Michael Strigel
Title: Vice President
by: __________________
Name:
Title:
LENDER: Bank of America, N.A.
Singapore Branch
by:/s/ Arthur Hu
Name: Arthur Hu
Title: Country Portfolio Manager
by: __________________
Name:
Title:
LENDER: Bank of China, New York Brance
by:/s/ William W. Smith
Name: William W. Smith
Title: Deputy General Manager
by: __________________
Name:
Title:
LENDER: The Bank of Nova Scotia
by:/s/ Ning Cai
Name: Ning Cai
Title: Director
by: __________________
Name:
Title:
LENDER: Citizens Bank of Pennsylvania
by:/s/ Carol Castle
Name: Carol Castle
Title: Senior Vice President
by: __________________
Name:
Title:
LENDER: COMERICA BANK
by:/s/ Liesl Eckardt
Name: Liesl Eckhardt
Title: Assistant Vice President
by: __________________
Name:
Title:
LENDER: Danske Bank A/S
by:/s/ Morten Olufsen
Name: Morten Olufsen
Title: Senior Client Executive
by:/s/ Merete Ryval-Christensen
Name: Merete Ryval- Christensen
Title: Senior Credit Administrator
LENDER: Landesbank Baden-Wurttemberg,
New York and / or Cayman Islands Branch
by:/s/ Francois Delangle
Name: Francois Delangle
Title: Vice President
by:/s/ Ralf Enders
Name: Ralf Enders
Title: Vice President
