EXHIBIT 10.1
AMENDMENT NO. 3 dated as of September 18, 2002
(this "Amendment"), to the CREDIT AGREEMENT dated
as of June 6, 2000, and as amended by Amendment
No. 1 dated as of May 29, 2001, and Amendment No.
2 dated as of August 3, 2001 (the "Credit
Agreement"), among FAIRCHILD SEMICONDUCTOR
CORPORATION, a Delaware corporation (the
"Borrower"), FAIRCHILD SEMICONDUCTOR
INTERNATIONAL, INC., a Delaware corporation
("Holdings"), the Lenders (as defined in Article
I of the Credit Agreement), CREDIT SUISSE FIRST
BOSTON, a bank organized under the laws of
Switzerland, acting through its New York branch,
as swingline lender (in such capacity, the
"Swingline Lender"), as an Issuing Bank (as
defined in Article I of the Credit Agreement), as
administrative agent (in such capacity, the
"Administrative Agent") and as collateral agent
(in such capacity, the "Collateral Agent") for
the Lenders, FLEET NATIONAL BANK, as an Issuing
Bank and as syndication agent (in such capacity,
the "Syndication Agent"), and ABN AMRO BANK NV,
as documentation agent (in such capacity, the
"Documentation Agent").
A. Pursuant to the Credit Agreement, the Lenders and the Issuing Banks
have extended, and have agreed to extend, credit to the Borrower, in each case
pursuant to the terms and subject to the conditions set forth in the Credit
Agreement.
B. Holdings and the Borrower have requested that certain provisions of the
Credit Agreement be amended as provided herein. The Required Lenders, on the
terms and subject to the conditions set forth herein, are willing so to amend
the Credit Agreement.
C. Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Credit Agreement, as amended hereby.
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 agree as follows:
SECTION 1. Amendments to the Credit Agreement. (a) The definition of the
term "Cash Equivalents" set forth in Section 1.01 of the Credit Agreement is
hereby amended by deleting the words "and (f)" set forth therein and
substituting therefor the following:
", (f) senior corporate debt obligations of a U.S. issuer that are
rated BBB or better by Standard & Poor's Ratings Service or Baa2 or better
by Moody's Investors Service, Inc., that mature not more than three years
after the date of acquisition by such person and that are actively traded
in a secondary market, and (g)".
(b) Section 6.04(a) of the Credit Agreement is hereby amended by inserting
after the words "Cash Equivalents" set forth therein the following:
", provided that, in the case of Cash Equivalents, (i) the weighted
average life to maturity of all Cash Equivalents held by the Borrower and
its Subsidiaries at any time shall not exceed one year and (ii)
obligations described in clause (f) of the definition of such term that
are rated BBB by Standard & Poor's Rating Service or Baa2 by Moody's
Investors Service, Inc. shall not comprise more than 10% of all Cash
Equivalents held by the Borrower and its Subsidiaries at any time".
SECTION 2. Representations and Warranties. To induce the other parties
hereto to enter into this Amendment, each of Holdings and the Borrower
represents and warrants to the Administrative Agent, the Collateral Agent, the
Issuing Banks and each of the Lenders that:
(a) This Amendment has been duly authorized, executed and delivered
by it and constitutes its legal, valid and binding obligation, enforceable
in accordance with its terms except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity).
(b) After giving effect to this Amendment, the representations and
warranties set forth in Article III of the Credit Agreement are true and
correct in all material respects on and as of the date hereof with the
same effect as though made on and as of the date hereof, except to the
extent such representations and warranties expressly relate to an earlier
date.
(c) After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing.
SECTION 3. Effectiveness. This Amendment shall become effective as of the
date first above written on the date that the Administrative Agent shall have
received counterparts of this Amendment that, when taken together, bear the
signatures of Holdings, the Borrower, the Subsidiary Guarantors and the Required
Lenders.
SECTION 4. Effect of Amendment. Except as expressly set forth herein, this
Amendment shall not by implication or otherwise limit, impair, constitute a
waiver of, or otherwise affect the rights and remedies of the Lenders, the
Administrative Agent, Holdings or the Borrower under the Credit Agreement or any
other Loan Document, and shall not alter, modify, amend or in any way affect any
of the terms, conditions, obligations, covenants or agreements contained in the
Credit Agreement or any other 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 the Borrower or Holdings to a consent to, or a
waiver, amendment, modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document in similar or different circumstances.
After the date hereof, any reference to the Credit Agreement shall mean the
Credit Agreement as modified hereby. This Amendment shall constitute a "Loan
Document" for all purposes of the Credit Agreement and the other Loan Documents.
SECTION 5. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Counterparts. This Amendment may be executed in counterparts
(and by different parties hereto on 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 signature page to this Amendment by
facsimile transmission shall be effective as delivery of a manually signed
counterpart of this Amendment.
SECTION 7. Expenses. The Borrower agrees to reimburse the Administrative
Agent for its out-of-pocket expenses in connection with this Amendment,
including the reasonable fees, charges and disbursements of Cravath, Swaine &
Moore, counsel for the Administrative Agent.
SECTION 8. Notices. All notices hereunder or in connection herewith shall
be given in accordance with the provisions of Section 9.01 of the Credit
Agreement.
SECTION 9. Headings. The headings of this Amendment are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 10. Acknowledgment of Guarantors. Each of the Guarantors hereby
acknowledges receipt and notice of, and consents to the terms of, this
Amendment.4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
FAIRCHILD SEMICONDUCTOR CORPORATION
by /s/ Matthew W. Towse
---------------------------------------
Name: Matthew W. Towse
Title: Vice President, Treasurer
FAIRCHILD SEMICONDUCTOR
INTERNATIONAL, INC.
by /s/ Matthew W. Towse
---------------------------------------
Name: Matthew W. Towse
Title: Vice President, Treasurer
EACH OF THE SUBSIDIARY GUARANTORS
LISTED ON ANNEX I HERETO,
by /s/ Matthew W. Towse
-------------------------------------
Name: Matthew W. Towse
Title: Vice President, Treasurer
CREDIT SUISSE FIRST BOSTON, individually and as
Administrative Agent, Collateral Agent, Swingline
Lender and an Issuing Bank,
by /s/ Robert Hetu
--------------------------------------
Name: Robert Hetu
Title: Director
by /s/ Ian W. Nalitt
--------------------------------------
Name: Ian W. Nalitt
Title: Associate
FLEET NATIONAL BANK, individually and as
Syndication Agent and an Issuing Bank,
by /s/ William B. Williamson
--------------------------------------
Name: William B. Williamson
Title: Senior Vice President
ABN AMRO BANK NV, individually and as
Documentation Agent,
by /s/ Richard Da Costa
---------------------------------------
Name: Richard Da Costa
Title: Group Vice President
by /s/ Jana Dombrowski
---------------------------------------
Name: Jana Dombrowski
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 3
DATED AS OF
SEPTEMBER 18, 2002 TO THE FAIRCHILD
SEMICONDUCTOR
CORPORATION CREDIT AGREEMENT DATED
AS OF
JUNE 6, 2000, AS AMENDED.
NAME OF LENDER: General Electric Corporation
by /s/ Gregory Hong
---------------------------------------
Name: Gregory Hong
Title: Duly Authorized Signatory
SIGNATURE PAGE TO AMENDMENT NO. 3
DATED AS OF
SEPTEMBER 18, 2002 TO THE FAIRCHILD
SEMICONDUCTOR
CORPORATION CREDIT AGREEMENT DATED
AS OF
JUNE 6, 2000, AS AMENDED.
NAME OF LENDER: LLOYDS TSB BANK
by /s/ Matthew A.L. Packham
----------------------------------------------
Name: Matthew A.L. Packham
Title: Assistant Director, Acquisition Finance
by /s/ Nicholas J. Bruce
----------------------------------------------
Name: Nicholas J. Bruce
Title: Credit Services
SIGNATURE PAGE TO AMENDMENT NO. 3
DATED AS OF
SEPTEMBER 18, 2002 TO THE FAIRCHILD
SEMICONDUCTOR
CORPORATION CREDIT AGREEMENT DATED
AS OF
JUNE 6, 2000, AS AMENDED.
NAME OF LENDER: CITIZENS BANK OF MASSACHUSETTS
by /s/ William F. Granchelli
-----------------------------------
Name: William F. Granchelli
Title: Senior Vice President
SIGNATURE PAGE TO AMENDMENT NO. 3
DATED AS OF
SEPTEMBER 18, 2002 TO THE FAIRCHILD
SEMICONDUCTOR
CORPORATION CREDIT AGREEMENT DATED
AS OF
JUNE 6, 2000, AS AMENDED.
NAME OF LENDER: BANK OF SCOTLAND
by /s/ Joseph Fratus
--------------------------------
Name: Joseph Fratus
Title: First Vice President
ANNEX 1
SUBSIDIARY GUARANTORS
Fairchild Semiconductor Corporation of California
82 Running Hill Road
South Portland, ME 04106
Kota Microcircuits, Inc.
82 Running Hill Road
South Portland, ME 04106
QT Optoelectronics, Inc.
82 Running Hill Road
South Portland, ME 04106
QT Optoelectronics
82 Running Hill Road
South Portland, ME 04106