Exhibit 10.38


 


THIRD AMENDMENT TO
CREDIT AGREEMENT


 


THIS THIRD
AMENDMENT TO CREDIT AGREEMENT dated as of October 28, 2009 (the “Amendment”)
is entered into among Amphenol Corporation, a Delaware corporation (the “Company”),
the Subsidiary Guarantors, the Lenders party hereto and Bank of America, N.A.,
as Administrative Agent.  All capitalized
terms used herein and not otherwise defined herein shall have the meanings
given to such terms in the Credit Agreement (as defined below).


 


RECITALS


 


WHEREAS, the Company,
certain Subsidiaries of the Company from time to time party thereto, as
designated borrowers (the “Designated Borrowers”), certain Subsidiaries
of the Company from time to time party thereto, as guarantors (each a “Subsidiary
Guarantor”; together with the Company, the “Guarantors”), the
Lenders and the Administrative Agent entered into that certain Credit Agreement
dated as of July 15, 2005 (as amended or modified from time to time, the “Credit
Agreement”); and


 


WHEREAS, the Company has
requested that the Lenders amend the Credit Agreement as set forth below;


 


NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:


 


1.                                       Amendments.  The Credit
Agreement is hereby amended as follows:


 


(a)                                  The following definition is hereby added
to Section 1.01 of the Credit Agreement in the appropriate alphabetical
order to read as follows:


 


“Excess Indebtedness” has the meaning specified
in Section 8.01(l) of the Credit Agreement.


 


(b)                                 The following new paragraph is hereby
added at the end of Section 2.06 of the Credit Agreement to read as
follows:


 


The
Company shall, upon receipt of the proceeds of any Excess Indebtedness,
promptly notify the Administrative Agent in writing of the aggregate amount of
such Excess Indebtedness.  Immediately
upon receipt by the Administrative Agent of such notice, the Aggregate
Commitments shall be automatically and permanently reduced by the amount of
such Excess Indebtedness.  The
Administrative Agent will promptly notify the Lenders of any such reduction of
the Aggregate Commitments.  The amount of
any such Aggregate Commitment reduction shall not be applied to the Alternative
Currency Sublimit, the Letter of Credit Sublimit or the Swing Line Sublimit
unless after giving effect to any such reduction of the Aggregate Commitments,
the Alternative Currency Sublimit, the Letter of Credit Sublimit or the Swing
Line Sublimit exceeds the amount of the Aggregate Commitments in which case any
such Sublimit shall be automatically reduced by such excess.  Any reduction of the Aggregate Commitments
shall be applied to the Commitment of each Lender according to its Applicable
Percentage.  All fees


 

















 


accrued
until the effective date of any automatic reduction of the Aggregate
Commitments shall be paid on the effective date of such automatic reduction.


 


(c)                                  Section 8.01(l) of the Credit
Agreement is hereby amended to read as follows:


 


(l)                                     the Company and its Subsidiaries may
become and remain liable with respect to other Indebtedness in an aggregate
principal amount not to exceed $500,000,000 at any time outstanding; provided,
however, to the extent the aggregate principal amount of Indebtedness incurred
pursuant to this clause (l) exceeds $200,000,000 at any time (x) the
Company shall promptly notify the Administrative Agent of the incurrence of
such Indebtedness in excess of such amount (the “Excess Indebtedness”)
and (y) the Loan Parties agree that the Aggregate Commitments shall be
automatically and permanently reduced in an aggregate amount equal to such
Excess Indebtedness in accordance with Section 2.06;


 


2.                                       Conditions Precedent.  This Amendment shall be effective upon receipt
by the Administrative Agent of counterparts of this Amendment duly executed by
the Company, the Subsidiary Guarantors, the Required Lenders and the
Administrative Agent.


 


3.                                       Miscellaneous.


 


(a)                                  The Credit Agreement, and the obligations of the Loan
Parties thereunder and under the other Loan Documents, are hereby ratified and
confirmed and shall remain in full force and effect according to their terms.


 


(b)                                 Each Guarantor (i) acknowledges and consents to
all of the terms and conditions of this Amendment, (ii) affirms all of its
obligations under the Loan Documents and (c) agrees that this Amendment
and all documents executed in connection herewith do not operate to reduce or
discharge its obligations under the Credit Agreement or the Loan Documents.


 


(c)                                  Each Loan Party hereby represents and warrants as
follows:


 


(i)                                     Each Loan Party has taken all necessary action to
authorize the execution, delivery and performance of this Amendment.


 


(ii)                                  This Amendment has been duly executed and delivered by
the Loan Parties and constitutes each of the Loan Parties’ legal, valid and
binding obligations, enforceable in accordance with its terms, except as such
enforceability may be limited by Debtor Relief Laws and general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).


 


(iii)                               No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or governmental authority
or third party is required in connection with the execution, delivery or
performance by any Loan Party of this Amendment.


 


(d)                                 The Loan Parties represent and warrant to
the Lenders that (i) the representations and warranties of the Loan
Parties set forth in Article VI of the Credit Agreement and in each other
Loan Document are true and correct in all material respects as of the date
hereof with the same effect as if made on and as of the date hereof, except to
the extent such representations and


 

















 


warranties
expressly relate solely to an earlier date and (ii) no event has occurred
and is continuing which constitutes a Default or an Event of Default.


 


(e)                                  This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.  Delivery of an executed counterpart of this
Amendment by telecopy shall be effective as an original and shall constitute a
representation that an executed original shall be delivered.


 


(f)                                    THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


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