Exhibit 10.115
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
---------------------------------------------
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (the "Amendment"),
---------
dated as of August 20, 1996, is entered into by and among MICRON TECHNOLOGY,
INC. (the "Company"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
-------
agent for itself and the Banks (the "Agent"), and the several financial
-----
institutions party to the Credit Agreement (collectively, the "Banks").
-----
RECITALS
--------
A. The Company, the Banks and the Agent are parties to a Revolving
Credit Agreement dated as of May 14, 1996 (the "Credit Agreement"), pursuant to
----------------
which the Banks have extended certain credit facilities to the Company.
B. The Company has requested that the Agent and the Banks agree to
certain amendments of the Credit Agreement.
C. The Agent and the Banks are willing to amend the Credit Agreement,
subject to the terms and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
-------------
used herein shall have the meanings assigned to them in the Credit Agreement.
2. Amendments to Credit Agreement.
------------------------------
(a) Subsection 5.11(b) and Section 5.19 of the Credit Agreement
are each hereby amended by deleting the date "March 15, 1996" set forth therein
and inserting the date "July 24, 1996" in its place.
(b) Section 6.02 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of subsection (d), (ii) deleting the period
at the end of subsection (e) and replacing it with "; and" and (iii) adding the
following subsection (f) at the end thereof:
"(f) on or before February 27, 1997 (2Q97), a certificate
executed by a Responsible Officer indicating whether the Company has
consummated equipment financings of at least $300,000,000 from and
including February 29, 1996 through and including February 27, 1997
(2Q97)."
(c) Subsection 7.01(j) of the Credit Agreement is hereby amended
by deleting the reference to "15%" therein and replacing it with "20%".
(d) Subsection 7.03(c) of the Credit Agreement is hereby amended and
restated in its entirety so as to read as follows:
"(c) any other material (greater than $1,000,000 individually)
assets, including the capital stock of Subsidiaries owned by the
Company, outside the ordinary course of business (the parties hereby
agreeing that dispositions of inventory, or used, worn-out or surplus
equipment, or equipment pursuant to Permitted Sale-Leaseback
Transactions shall be considered to be dispositions in the ordinary
course of business), if the aggregate fair market value of all
material assets so sold by the Company and its Subsidiaries, together
with the aggregate fair market value of any material (greater than
$1,000,000 individually) assets disposed of pursuant to sale-leaseback
transactions which do not constitute Permitted Sale-Leaseback
Transactions, on a cumulative basis, would exceed 10% of the
Company's consolidated tangible assets as of the last day of the
fiscal quarter most recently ended prior thereto; provided that
--------
any such dispositions of assets by or among the Company and its
Subsidiaries must be permitted by Section 7.07."
(e) Subsection 7.04(d) of the Credit Agreement is hereby amended and
restated in its entirety so as to read as follows:
"(d) any Subsidiary may liquidate or dissolve, provided,
that if such Subsidiary is not a Wholly-Owned Subsidiary, any
proceeds of such liquidation or dissolution which the Company
is entitled to receive by virtue of its ownership in such
Subsidiary and which are not distributed directly or indirectly
to the Company would be a distribution permitted under
Section 7.09(d)."
(f) Subsection 7.05(c) of the Credit Agreement is hereby amended and
restated in its entirety so as to read as follows:
"(c) Investments made by the Company to or in its
Subsidiaries (including Micron Electronics, Inc.), or by a
Subsidiary of the Company to or in the Company or another
Subsidiary, to the extent permitted by Section 7.07, provided,
that (i) Investments to or in Micron Electronics, Inc. may
not at any time exceed $100,000,000 in aggregate principal
amount outstanding, and (ii) Investments to or in any Subsidiary
that is not a Wholly-Owned Subsidiary (other than Micron
Electronics, Inc.) may not at any time exceed, in aggregate
principal amount outstanding, an amount equal to 5% of
Consolidated Tangible Net Worth as of the last day of the fiscal
quarter most recently ended prior thereto;"
(g) Clause (i) of subsection 7.05(e) of the Credit Agreement is hereby
amended and restated in its entirety so as to read as follows:
"(i) the cumulative aggregate consideration paid (including the
assumption of debt), or outstanding principal amount, in the case of an
advance, loan or other extension of credit, or assets contributed in all
such Investments after the Closing Date (including the proposed Investment)
does not at any time exceed 25% of the consolidated tangible assets of the
Company as of the last day of the fiscal quarter most recently ended prior
thereto,"
2
(h) Subsection 7.06(h) of the Credit Agreement is hereby amended and
restated in its entirety so as to read as follows:
"(h) Indebtedness incurred by Subsidiaries of the Company
(including Micron Electronics, Inc.) from Persons other than
the Company or another Subsidiary (excluding Indebtedness
permitted under subsection 7.06(d)) up to a maximum aggregate
principal amount outstanding of $100,000,000;"
(i) Section 7.12 of the Credit Agreement is hereby amended and restated in
its entirety so as to read as follows:
"7.12 Adjusted Quick Ratio. The Company shall not permit,
--------------------
as of the last day of any fiscal quarter, the ratio of (a) the
sum of (i) cash, cash equivalents and liquid investments, and
(ii) net trade accounts receivable of the Company and its
Subsidiaries on a consolidated basis, to (b) the sum (without
duplication) of (i) current liabilities of the Company and its
Subsidiaries on a consolidated basis (plus long-term liabilities
related to customer deposits), and (ii) any Loans outstanding,
to be less than the amount set forth below for the applicable date:
Minimum Adjusted As of the last day of the
Quick Ratio fiscal quarter ending
----------- ---------------------
0.45 to 1.00 August 29, 1996 (4Q96)
0.40 to 1.00 November 28, 1996 (1Q97)
0.40 to 1.00 February 27, 1997 (2Q97)
0.40 to 1.00 May 29, 1997 (3Q97)
0.50 to 1.00 August 28, 1997 (4Q97)
0.50 to 1.00 November 27, 1997 (1Q98)
0.50 to 1.00 February 26, 1998 (2Q98)
0.70 to 1.00 May 28, 1998 (3Q98) and
as of the last day of each
fiscal quarter thereafter
(j) Section 7.13 of the Credit Agreement is hereby amended and restated in
its entirety so as to read as follows:
"7.13 Consolidated Tangible Net Worth. The Company shall
-------------------------------
not permit, as of the last day of any fiscal quarter, Consolidated
Tangible Net Worth to be less than an amount equal to $2,172,333,000,
plus the sum of (a) 75% of Consolidated Net Income (not reduced by
----
Consolidated Net Loss for any period) earned in each fiscal
quarterly accounting period commencing after the Closing Date,
and (b) 100% of the amount by which Consolidated Tangible Net Worth
increases as a result of any secondary public or private offering
of equity securities by the Company and its Subsidiaries (not in
connection with an Acquisition or employee stock option or
purchase plans) after the Closing Date."
3
(k) Section 7.15 of the Credit Agreement is hereby amended and restated in
its entirety so as to read as follows:
"7.15 Minimum Cash Flow. The Company shall not permit,
-----------------
as of the last day of any fiscal quarter, EBITDA for the fiscal
quarter then ending, to be less than the amount set forth below:
For the
Minimum EBITDA fiscal quarter ending
-------------- ---------------------
$ 70,000,000 August 29, 1996 (4Q96)
$100,000,000 November 28, 1996 (1Q97)
$110,000,000 February 27, 1997 (2Q97)
$165,000,000 May 29, 1997 (3Q97)
$205,000,000 August 28, 1997 (4Q97)
$215,000,000 November 27, 1997 (1Q98)
$230,000,000 February 26, 1998 (2Q98)
$250,000,000 May 28, 1998 (3Q98)
$300,000,000 September 3, 1998 (4Q98)
and as of the last day of each
fiscal quarter thereafter
(l) Article VII of the Credit Agreement is hereby amended by adding the
following Section 7.16 at the end thereof:
"7.16 Maximum Consolidated Net Loss. The Company shall
-----------------------------
not permit, as of the last day of the applicable fiscal quarter,
Consolidated Net Loss to exceed (a) $25,000,000, for the fiscal
quarter ending August 29, 1996 (4Q96), (b) $15,000,000, for the
fiscal quarter ending November 28, 1996 (1Q97), and (c) $5,000,000,
for the fiscal quarter ending February 27, 1997 (2Q97).
(m) Section 8.04 of the Credit Agreement is hereby amended and restated in
its entirety so as to read as follows:
"8.04 Certain Financial Covenant Defaults. In the event
-----------------------------------
that, after taking into account any extraordinary charge to
earnings taken or to be taken as of the end of any fiscal perio
of the Company (a "Charge"), and if solely by virtue of such
------
Charge, there would exist an Event of Default due to the breach
of any of Sections 7.12, 7.13, 7.14, 7.15 or 7.16 as of such fiscal
period end date, such Event of Default shall be deemed to arise
upon the earlier of (a) the date after such fiscal period end date
on which the Company announces publicly it will take, is taking or
has taken such Charge (including an announcement in the form of a
statement in a report filed with the SEC) or, if such announcement
is made prior to such fiscal period end date, the date that is
such fiscal period end date, and (b) the date the Company delivers
to the Agent its audited annual or unaudited quarterly financial
statements in respect of such fiscal period reflecting such Charge
as taken."
(n) Schedule 2.01 (Commitments and Pro Rata Shares) to the Credit
Agreement is hereby replaced in its entirety by Schedule 2.01 attached hereto.
4
(o) Exhibit C (Form of Borrowing Base Certificate) to the Credit Agreement
is hereby replaced in its entirety by Exhibit C attached hereto.
(p) Exhibit D (Form of Compliance Certificate) to the Credit Agreement is
hereby replaced in its entirety by Exhibit D attached hereto.
(q) The definitions of the following terms contained in Annex I to the
Credit Agreement are each hereby amended and restated in their entirety so as to
read as follows:
"Applicable Fee Percentage" means, for any date, the per annum
percentage amount set forth below based on the Leverage Ratio set forth
in the Compliance Certificate most recently delivered pursuant to Section
6.02(b):
Leverage Applicable
Ratio Fee Percentage
----- --------------
Less than 0.250 0.150%
Greater than or equal to 0.250 but less than 0.450 0.225%
Greater than or equal to 0.450 but less than 0.650 0.275%
Greater than or equal to 0.650 0.350%
The Applicable Fee Percentage shall be adjusted automatically
as to the commitment fee then accruing effective as of the 90th
day after the end of each fiscal year and the 45th day of the end
of the first three fiscal quarters of each fiscal year based on the
Leverage Ratio set forth in the most recently delivered Compliance
Certificate.
"Applicable Margin" means, for any date, with respect to
-----------------
each Offshore Rate Loan or Base Rate Loan outstanding on such
date, the applicable margin (on a per annum basis) set forth
below based on the Leverage Ratio set forth in the Compliance
Certificate most recently delivered pursuant to Section 6.02(b):
Applicable Margin
Leverage Offshore Rate Base Rate
Ratio Loans Loans
- ------------------------------ ------------- ---------
Less than 0.250 0.400% 0.000%
Greater than or equal to 0.250 but less than 0.450 0.650% 0.000%
Greater than or equal to 0.450 but less than 0.650 0.750% 0.000%
Greater than or equal to 0.650 0.875% 0.000%
5
Provided, that at any time as the aggregate outstanding principal
amount of Loans exceeds $250,000,000, the Applicable Margin in
respect of any Offshore Rate Loans and Base Rate Loans then
outstanding shall be increased by an additional 0.250%.
The Applicable Margin shall be adjusted automatically as to
all Loans then outstanding effective as of the 90th day after the
end of each fiscal year and the 45th day of the end of the first
three fiscal quarters of each fiscal year based on the Leverage
Ratio set forth in the most recently delivered Compliance
Certificate.
"Borrowing Base" means, as of any date of determination,
--------------
an amount equal to (a) $200,000,000, plus (b) 70% of the Adjusted
Net Accounts Receivables Amount, less (c) the Pari Passu Debt
Amount, as of such date; provided, however, that if the average
-------- -------
daily used portion of the combined Commitments of all the Banks
for the prior fiscal month (computed on a monthly basis in arrears
on the last Business Day of each fiscal month based upon the daily
utilization for that fiscal month as calculated by the Agent)
exceeds 50%, (i) on and after May 30, 1997, or (ii) on and after
February 28, 1997 if the Company has not consummated equipment
financings of at least $300,000,000 from and including February 29,
1996 through and including February 27, 1997 (2Q97), then,
----
"Borrowing Base" shall mean, as of any date of determination, an
amount equal to (a) 70% of the outstanding face amount of Eligible
Accounts Receivable, less (b) the Pari Passu Debt Amount, as of
such date.
"EBITDA" means, for any period, Consolidated Net Income or
------
Consolidated Net Loss, as the case may be, for such period, plus
----
the sum of (a) consolidated interest expense, (b) income tax
expense, (c) depreciation expense, and (d) amortization expense,
which were deductible in determining Consolidated Net Income or
Consolidated Net Loss.
(r) The definition of the term "Net Proceeds" contained in Annex I to the
Credit Agreement is hereby deleted.
(s) Annex I to the Credit Agreement is hereby amended to add the following
defined term therein, in appropriate alphabetical order:
"Permitted Sale-Leaseback Transaction" means a transaction pursuant to
------------------------------------
which the Company or any of its Subsidiaries purchases equipment and,
within 12 months thereafter, sells such equipment to, and leases back such
equipment from, a third-party pursuant to an operating or capital lease.
3. Representations and Warranties. The Company hereby represents and
------------------------------
warrants to the Agent and the Banks as follows:
(a) No Default or Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by the Company of this
Amendment have been duly authorized by all necessary corporate and other action
and do not and will not require any registration with, consent or approval of,
notice to or action by, any Person (including any Governmental Authority) in
order to be effective and enforceable. The Credit Agreement as amended by this
Amendment constitutes the legal, valid and binding obligations of the Company,
enforceable against it in accordance with its respective terms.
6
(c) The representations and warranties of the Company contained in
Article V of the Credit Agreement (except for the representations and warranties
contained in Sections 5.05 and 5.14) are true and correct, except to the extent
such representations and warranties relate to an earlier date, in which case
they were true and correct as of such earlier date.
(d) The Company is entering into this Amendment on the basis of its
own investigation and for its own reasons, without reliance upon the Agent and
the Banks or any other Person.
4. Effective Date. This Amendment will become effective as of August 20,
--------------
1996 (the "Effective Date"), provided that each of the following conditions
-------------- --------
precedent is satisfied:
(a) The Agent has received from the Company and the Majority Banks a
duly executed original (or, if elected by the Agent, an executed facsimile copy)
of this Amendment.
(b) All representations and warranties contained herein are true and
correct as of the Effective Date.
(c) The Agent has received from the Company, for the account of the
Banks, a non-refundable amendment fee in the amount of $500,000, to be allocated
among the Banks on the basis of their respective Pro Rata Shares of the
Commitment, as reduced by this Amendment.
(d) The Agent has received from the Company, solely for the account
of the Agent, such other fees as may be agreed to by the Agent and the Company.
5. Reservation of Rights. The Company acknowledges and agrees that the
---------------------
execution and delivery by the Agent and the Banks of this Amendment shall not be
deemed to create a course of dealing or otherwise obligate the Agent or the
Banks to forbear or execute similar amendments under the same or similar
circumstances in the future.
6. Miscellaneous.
-------------
(a) Except as herein expressly amended, all terms, covenants and
provisions of the Credit Agreement are and shall remain in full force and effect
and all references therein to such Credit Agreement shall henceforth refer to
the Credit Agreement as amended by this Amendment. This Amendment shall be
deemed incorporated into, and a part of, the Credit Agreement.
(b) This Amendment shall be binding upon and inure to the benefit of
the parties hereto and thereto and their respective successors and assigns. No
third party beneficiaries are intended in connection with this Amendment.
(c) This Amendment shall be governed by and construed in accordance
with the law of the State of California.
(d) This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this document may be delivered by any party thereto
either in the form of an executed original or an executed original sent by
facsimile transmission to be followed promptly by mailing of a hard copy
original, and that receipt by the Agent of a facsimile transmitted document
purportedly bearing the signature of a Bank or the
7
Company shall bind such Bank or the Company, respectively, with the same force
and effect as the delivery of a hard copy original. Any failure by the Agent to
receive the hard copy executed original of such document shall not diminish the
binding effect of receipt of the facsimile transmitted executed original of such
document of the party whose hard copy page was not received by the Agent.
(e) This Amendment, together with the Credit Agreement, contains the
entire and exclusive agreement of the parties hereto with reference to the
matters discussed herein and therein. This Amendment supersedes all prior
drafts and communications with respect thereto. This Amendment may not be
amended except in accordance with the provisions of Section 10.01 of the Credit
Agreement.
(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Credit Agreement, respectively.
(g) The Company covenants to pay to or reimburse the Agent, upon
demand, for all costs and expenses (including allocated costs of in-house
counsel) incurred in connection with the development, preparation, negotiation,
execution and delivery of this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the date first above written.
MICRON TECHNOLOGY, INC.
By: /S/ Norman L. Schlachter
-----------------------------
Name: Norman L. Schlachter
Title: Treasurer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: /s/ Wendy M. Young
-----------------------------
Name: Wendy M. Young
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By: /s/ Michael J. McCutchin
-----------------------------
Name: Michael J. McCutchin
Title: Vice President
8
SEATTLE FIRST NATIONAL BANK, as Co-Agent
By: /s/ Thomas P. Rook
-----------------------------
Name: Thomas P. Rook
Title: Vice President
BANK OF MONTREAL, as Co-Agent
By: /s/ Authorized Signatory
-----------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION,
as Co-Agent
By: /s/ Jeffrey P. White
-----------------------------
Name: Jeffrey P. White
Title: Commercial Banking Officer
UNITED STATES NATIONAL BANK OF OREGON,
as Co-Agent
By: /s/ Jeff A. Killian
-----------------------------
Name: Jeff A. Killian
Title: Vice President
9
ABN AMRO BANK N.V. SEATTLE BRANCH
By: ABN AMRO North America, Inc., as agent
By: /s/ Lee-Lee Miao
-----------------------------
Name: Lee-Lee Miao
Title: Vice President and Director
By: /s/ Leif H. Olsson
-----------------------------
Name: Leif H. Olsson
Title: Group Vice President and Director
BANQUE NATIONALE DE PARIS
By: /s/ Rafael C. Lumanlan
-----------------------------
Name: Rafael C. Lumanlan
Title: Vice President
By: /s/ Charles Day
-----------------------------
Name: Charles Day
Title: Assistant Vice President
FIRST SECURITY BANK OF IDAHO, N.A.
By: /s/ Brian W. Cook
-----------------------------
Name: Brian W. Cook
Title: Vice President
10
FLEET NATIONAL BANK
By: /s/ Frank Bonesh
--------------------------------
Name: Frank Bonesh
Title: Vice President
KEY BANK OF WASHINGTON
By: /s/ Richard J. Amery
--------------------------------
Name: Richard J. Amery
Title: Assistant Vice President
MELLON BANK, N.A.
By: /s/ B. Charles Jackson
--------------------------------
Name: B. Charles Jackson
Title: Senior Vice President
ROYAL BANK OF CANADA
By: /s/ Michael Cole
--------------------------------
Name: Michael Cole
Title: Manager
THE BANK OF NEW YORK
By: /s/ Bruce C. Miller
--------------------------------
Name: Bruce C. Miller
Title: Vice President and
Division Manager
11
THE BANK OF NOVA SCOTIA
By: /s/ J.S. York
---------------------------
Name: J.S. York
Title: Vice President
THE DAI-ICHI KANGYO BANK, LIMITED, SAN
FRANCISCO AGENCY
By: /s/ Seigo Makino
---------------------------
Name: Seigo Makino
Title: Joint General Manager
THE FUJI BANK, LIMITED, LOS ANGELES
AGENCY
By: /s/ Nobuhiro Umemura
---------------------------
Name: Nobuhiro Umemura
Title: Joint General Manager
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
SAN FRANCISCO AGENCY
By: /s/ Yoh Nakahara
---------------------------
Name: Yoh Nakahara
Title: General Manager
12
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., LOS ANGELES AGENCY
By:/s/Motokazu Uematsu
--------------------
Name: Motokazu Uematsu
Title: General Manager
THE SUMITOMO BANK LIMITED, LOS ANGELES
BRANCH
By:/s/Tatsuo Ueda
--------------------
Name: Tatsuo Ueda
Title: General Manager
13
SCHEDULE 2.01
COMMITMENTS AND PRO RATA SHARES
-------------------------------
Bank Commitment Pro Rata Share
- ---------------------------------------- ------------ --------------
Bank of America National $ 31,200,000 7.800000000%
Trust and Savings Association
Seattle First National Bank 31,200,000 7.800000000
Bank of Montreal 31,200,000 7.800000000
PNC Bank, National Association 31,200,000 7.800000000
United States National Bank of Oregon 31,200,000 7.800000000
ABN AMRO Bank, N.V.
Seattle Branch 23,200,000 5.800000000
The Bank of Nova Scotia 23,200,000 5.800000000
The Industrial Bank of Japan,
Limited, San Francisco Agency 23,200,000 5.800000000
Key Bank of Washington 23,200,000 5.800000000
Royal Bank of Canada 23,200,000 5.800000000
Banque Nationale de Paris 19,200,000 4.800000000
The Fuji Bank, Limited,
Los Angeles Agency 19,200,000 4.800000000
The Bank of New York 12,800,000 3.200000000
The Dai-Ichi Kangyo Bank,
Limited, San Francisco Agency 12,800,000 3.200000000
First Security Bank of
Idaho, N.A. 12,800,000 3.200000000
Fleet National Bank 12,800,000 3.200000000
The Long-Term Credit Bank of
Japan, Ltd., Los Angeles Agency 12,800,000 3.200000000
Mellon Bank, N.A. 12,800,000 3.200000000
The Sumitomo Bank Limited
Los Angeles Branch 12,800,000 3.200000000
------------ -------------
TOTAL $400,000,000 100.000000000%
============ =============
14
EXHIBIT C
FORM OF BORROWING BASE CERTIFICATE
----------------------------------
MICRON TECHNOLOGY, INC.
DATED AS OF: ______________, 199__
Reference is made to that certain Revolving Credit Agreement dated as of
May 14, 1996 (as extended, renewed, amended or restated from time to time, the
"Credit Agreement") among Micron Technology, Inc. (the "Company"), the several
- ----------------- -------
financial institutions from time to time party to this Credit Agreement (the
"Banks"), and Bank of America National Trust and Savings Association, as agent
- ------
for the Banks (in such capacity, the "Agent"). Unless otherwise defined herein,
-----
capitalized terms used herein have the respective meanings assigned to them in
the Credit Agreement.
The undersigned Responsible Officer of the Company hereby certifies as of
the date hereof that he/she is the [Chief Financial Officer] [Treasurer] of the
Company, and that, as such, he/she is authorized to execute and deliver this
Certificate to the Banks and the Agent on the behalf of the Company and its
consolidated Subsidiaries, and that:
1. The Pari Passu Debt Amount (outstanding Senior Unsecured Debt plus
outstanding Indebtedness permitted pursuant to Section 7.06(h)) is $___________.
2. Prior to the dates referred to in Paragraph 3 below:
(a) The Adjusted Net Accounts Receivables Amount (80%/*/ of the face
amount of net trade receivables determined in accordance with GAAP) is
$___________; and
(b) The Borrowing Base ($200,000,000 plus 70% of the Adjusted Net
Accounts Receivables Amount, less the Pari Passu Debt Amount) is
$__________.
3. On and after May 30, 1997, or on and after February 28, 1997, if the
Company has not consummated equipment financings of at least $300,000,000 from
and including February 29, 1996 through and including February 27, 1997 (2Q97):
(a) The outstanding face amount of all Eligible Accounts Receivable
is $_________;
(b) The Borrowing Base (70% of the outstanding face amount of all
Eligible Accounts Receivable, less the Pari Passu Debt Amount) is
$__________.
4. The aggregate principal amount of all outstanding Loans is
$___________.
5. The amount by which the aggregate principal amount of all outstanding
Loans is [greater] [less] than the Borrowing Base is $___________.
6. Attached as Schedule 1 hereto is a true and correct copy of supporting
----------
details for the foregoing calculations.
___________________
/*/ Subject to adjustment.
C-1
7. The values used to calculate the Borrowing Base are true and correct
and in agreement with the records of the Company, and the calculations made
above and on Schedule 1 are mathematically accurate.
----------
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
______________, 199__.
MICRON TECHNOLOGY, INC.
By: ____________________________________
Title:
C-2
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
------------------------------
MICRON TECHNOLOGY, INC.
FINANCIAL STATEMENT DATE: ______________, 199__
Reference is made to that certain Revolving Credit Agreement dated as of
May 14, 1996 (as extended, renewed, amended or restated from time to time, the
"Credit Agreement") among Micron Technology, Inc. (the "Company"), the several
---------------- -------
financial institutions from time to time party to this Credit Agreement (the
"Banks"), and Bank of America National Trust and Savings Association, as agent
-----
for the Banks (in such capacity, the "Agent"). Unless otherwise defined herein,
-----
capitalized terms used herein have the respective meanings assigned to them in
the Credit Agreement.
The undersigned Responsible Officer of the Company hereby certifies as of
the date hereof that he/she is the [Chief Financial Officer] [Treasurer] of the
Company, and that, as such, he/she is authorized to execute and deliver this
Certificate to the Banks and the Agent on the behalf of the Company and its
consolidated Subsidiaries, and that:
[Use the following paragraph if this Certificate is delivered in connection with
the financial statements required by subsection 6.01(a) of the Credit
Agreement.]
1. Attached as Schedule 1 hereto are true and correct copies of the
----------
audited consolidated balance sheet of the Company and its Subsidiaries as at the
end of the fiscal year ended _______________, 199__ and the related consolidated
statements of income or operations, shareholders' equity and cash flows for such
year, setting forth in each case in comparative form the figures for the
previous fiscal year, accompanied by the opinion of the Independent Auditor,
which opinion (a) states that such consolidated financial statements present
fairly in all material respects the financial position of the Company as of the
date thereof and the results of operations for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years, except as
otherwise indicated therein, and (b) is not qualified or limited because of a
restricted or limited examination by the Independent Auditor of any material
portion of the Company's or any Subsidiary's records.
[Use the following paragraph if this Certificate is delivered in connection with
the financial statements required by subsection 6.01(b) of the Credit
Agreement.]
1. Attached as Schedule 1 hereto are true and correct copies of the
----------
unaudited consolidated balance sheet of the Company and its Subsidiaries as of
the end of the fiscal quarter ended __________, 199__ and the related
consolidated statements of income for the period commencing on the first day and
ending on the last day of such quarter, and statement of cash flows for the year
to date, which fairly present in all material respects, in accordance with GAAP
(subject to ordinary, good faith year-end audit adjustments and except for the
absence of footnotes), the financial position and the results of operations of
the Company and the Subsidiaries.
2. The undersigned has reviewed and is familiar with the terms of the
Credit Agreement and has made, or has caused to be made under his/her
supervision, a detailed review of the transactions and conditions (financial or
otherwise) of the Company during the accounting period covered by the attached
financial statements.
D-1
3. The Company, during such period, has observed, performed or satisfied
all of its covenants and other agreements, and satisfied every condition in the
Credit Agreement to be observed, performed or satisfied by the Company, and the
undersigned has no knowledge of any Default or Event of Default.
4. The representations and warranties of the Company contained in Article
V of the Credit Agreement are true and correct as though made on and as of the
date hereof (except to the extent such representations and warranties relate to
an earlier date, in which case they were true and correct as of such earlier
date).
5. The following financial covenant analyses and information set forth on
Schedule 2 attached hereto are true and accurate on and as of the date of this
- ----------
Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
______________, 199__.
MICRON TECHNOLOGY, INC.
By: ______________________________________
Title:
D-2
SCHEDULE 2
----------
to the Compliance Certificate
($ in 000's)
Date: ______________, 199__
For the fiscal quarter/year
ended ______________, 199__
Actual Required/Permitted
----------- ------------------------------
1. Section 7.12: Adjusted Quick Ratio.
-----------------------------------
The ratio of:
A. the sum of:
(i) cash, cash equivalents and liquid investments __________
plus
------
(ii) net trade accounts receivable __________
(i) + (ii) = __________
B. the sum (without duplication) of:
(i) current liabilities __________
plus
------
(ii) long-term liabilities related to
customer deposits and loans __________
plus
------
(iii) any Loans outstanding __________
(i) + (ii) + (iii) = __________
A
----- = Not less than:
B ==========
As of the Last Day
Minimum Adjusted of the Fiscal
Quick Ratio Quarter Ending
---------------- ------------------
0.45 to 1.00 August 29, 1996
0.40 to 1.00 November 28, 1996
0.40 to 1.00 February 27, 1997
0.40 to 1.00 May 29, 1997
0.50 to 1.00 August 28, 1997
0.50 to 1.00 November 27, 1997
0.50 to 1.00 February 26, 1998
0.70 to 1.00 May 28, 1998
and thereafter
D-3
Actual Required/Permitted
----------- ------------------------------
2. Section 7.13: Consolidated Tangible Net Worth.
----------------------------------------------
Consolidated Tangible Net Worth:
A. total stockholders' equity
__________
less
------
B. the net book value of all assets including deferred
charges, leasehold conversion costs, franchise rights,
non-compete agreements, research and development costs,
capitalized costs associated with software development
expenses, goodwill, unamortized debt discounts,
patents, patent applications, trademarks, trade names,
and copyrights and licenses __________
A - B =
========== Not to be less than the sum of:
A. $2,172,333,000
plus
------
B. 75% of Consolidated Net Income (not reduced
by Consolidated Net Loss) earned in each
quarterly accounting period commencing
after 5/14/96 __________
plus
------
C. 100% of increase in Consolidated Tangible
Net Worth from certain equity securities
issued after 5/14/96 __________
A + B + C =
==========
D-4
Actual Required/Permitted
----------- ------------------------------
3. Section 7.14: Leverage Ratio.
-----------------------------
The ratio of:
A. Consolidated Adjusted Total Liabilities
(i) total liabilities __________
plus
------
(ii) certain off-balance sheet obligations
__________
(i) + (ii) = _________
B. Consolidated Tangible Net Worth: (from #2 above) = __________
A
-------- =
B ========== Not greater than 0.75 to 1.00
D-5
Actual Required/Permitted
----------- ------------------------------
4. Section 7.15: Minimum Cash Flow.
----------------------------------
A. EBITDA means the sum of:
(i) Consolidated Net Income __________
(or Consolidated Net Loss)
plus
------
(ii) consolidated interest expense/1/ __________
plus
------
(iii) income tax expense/1/ __________
plus
------
(iv) depreciation expense/1/ __________
plus
------
(v) amortization expense/1/ __________
(i) + (ii) + (iii) + (iv) + (v) = Not less than:
==========
For the
Minimum EBITDA Quarter Ending
-------------- --------------
$ 70,000,000 August 29, 1996
$100,000,000 November 28, 1996
$110,000,000 February 27, 1997
$165,000,000 May 29, 1997
$205,000,000 August 28, 1997
$215,000,000 November 27, 1997
$230,000,000 February 26, 1998
$250,000,000 May 28, 1998
$300,000,000 September 3, 1998
and thereafter
5. Section 7.16: Maximum Consolidated Net Loss.
--------------------------------------------
Consolidated Net Loss for the fiscal quarter ending:
August 29, 1996 __________ Not greater than $25,000,000
November 28, 1996 __________ Not greater than $15,000,000
February 27, 1997 __________ Not greater than $5,000,000
_______________________
/1/ To the extent deductible in determining Consolidated Net Income or
Consolidated Net Loss.
D-6
Actual Required/Permitted
----------- ------------------------------
6. Section 7.01(j): Purchase Money Liens.
--------------------------------------
Indebtedness secured by purchase money and other
similar security interests = $__________ Not to exceed 20% of consolidated
net property, plant and
equipment = $_______________
7. Section 7.01(q): Secured Swap Obligations.
------------------------------------------
Permitted Swap Obligations secured by cash
collateral or government securities = $__________ Not to exceed 5% of consolidated
tangible fixed assets = $________
8. Section 7.03(c): Disposition of Material Assets.
------------------------------------------------
Aggregate fair market value of all material assets
sold outside of ordinary course of business = $__________ Not to exceed 10% of consolidated
tangible assets = $_________
9. Section 7.05(c): Affiliate Investments.
---------------------------------------
Investment to or in Micron Electronics, Inc. = $__________ Not to exceed $100,000,000
Investments to or in any other non-Wholly-Owned Subsidiary $__________ Not to exceed 5% of Consolidated
Tangible Net Worth = $__________
10. Section 7.05(e): Acquisitions or Minority Investments.
------------------------------------------------------
Aggregate consideration (including assumption of debt) or
assets contributed in order to consummate Acquisitions or
minority Investments = $__________ Not to exceed 25% of consolidated
tangible assets = $__________
11. Section 7.05(l): Other Investments.
-----------------------------------
Investments not otherwise permitted by Section 7.05 = $__________ Not to exceed 2% of consolidated
tangible assets = $__________
12. Section 7.06(h): Third-Party Indebtedness.
------------------------------------------
Indebtedness incurred by Subsidiaries from Persons other
than the Company or another Subsidiary (excluding
Indebtedness permitted under subsection 7.06(d)) = $__________ Not to exceed $100,000,000
Pages D-7 and D-8 to be furnished (1) as of
the end of each fiscal year and (2) as and
when requested by Agent or Majority Banks
D-7
Actual Required/Permitted
----------- ------------------------------
13. Section 7.06(j): Subordinated Debt/Senior Unsecured Debt.
---------------------------------------------------------
(i) Subordinated Debt = $__________
plus
(ii) Senior Unsecured Debt = $__________
(i) + (ii) = $ Not to exceed the greater of:
==========
(a) $150,000,000
and
(b) 10% of:
(i) Company's stockholder equity
less
(ii) principal amount of all Company's
committed or outstanding secured
debt, subordinated debt, guarantees
and senior unsecured debt
(including under this Agreement)
= $_________
14. Section 7.06(m): Other Indebtedness/Contingent Obligations.
-----------------------------------------------------------
Indebtedness and Contingent Obligations other than for
borrowed money, to the extent not otherwise permitted by
Section 7.06 = $__________ Not to exceed $100,000,000
15. Section 7.09: Restricted Payments.
---------------------------------
Cash Restricted Payments permitted by Section 7.09(d) = $__________ Not to exceed 25% of Consolidated
Net Income, on a rolling four
quarter basis = $__________
Pages D-7 and D-8 to be furnished (1) as of
the end of each fiscal year and (2) as and
when requested by Agent or Majority Banks
D-8