EXHIBIT 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment"), dated as of
October 28, 2003, among FAIRCHILD SEMICONDUCTOR INTERNATIONAL, INC., a Delaware
corporation ("Holdings"), FAIRCHILD SEMICONDUCTOR CORPORATION, a Delaware
corporation (the "Borrower), the lenders party to the Credit Agreement referred
to below from time to time (the "Lenders"), DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Administrative Agent (in such capacity, the "Administrative
Agent"), FLEET NATIONAL BANK, as Syndication Agent (in such capacity, the
"Syndication Agent"), and CREDIT SUISSE FIRST BOSTON, LEHMAN COMMERCIAL PAPER
INC. and MORGAN STANLEY SENIOR FUNDING, INC., as Co-Documentation Agents (in
such capacity, the Co-Documentation Agents"). Unless otherwise defined herein,
capitalized terms used herein and defined in the Credit Agreement are used
herein as therein defined.
W I T N E S S E T H :
WHEREAS, the Borrower, the Lenders, the Administrative Agent, the
Syndication Agent and the Co-Documentation Agents have entered into a Credit
Agreement, dated as of June 19, 2003; and
WHEREAS, subject to the terms and conditions set forth below, the parties
hereto wish to amend certain provisions of the Credit Agreement as provided
herein;
NOW, THEREFORE, it is agreed;
A. Amendments to the Credit Agreement
1. Section 1.01 of the Credit Agreement is hereby amended by inserting the
following new clause (e) at the end thereof:
"(e) On the First Amendment Effective Date, all outstanding Term
Loans of each Lender that has theretofore executed and delivered a
counterpart of the First Amendment to the Administrative Agent in
accordance with the terms thereof (each such Lender, a "Consenting Lender"
and, collectively, the "Consenting Lenders") shall be automatically
converted into new term loans hereunder (each such term loan, a "Converted
B-1 Term Loan" and, collectively, the "Converted B-1 Term Loans"). On or
after the First Amendment Effective Date, each Consenting Lender which
holds a Term Note shall be entitled to surrender such Term Note to the
Borrower against delivery of a B-1 Term Note completed in conformity with
Section 1.05; provided that if any such Term Note is not so surrendered
then from and after the First Amendment Effective Date such Term Note
shall be deemed to evidence the Converted B-1 Term Loans into which the
Term Loans theretofore evidenced by such Term Note have been converted.
Subject to and upon the terms and conditions set forth herein, each Lender
with a B-1 Term Loan Commitment severally agrees to make a term loan
or term loans (each, an "Additional B-1 Term Loan" and, collectively, the
"Additional B-1 Term Loans" and, together with the Converted B-1 Term
Loans, the "B-1 Term Loans") to the Borrower, which Additional B-1 Term
Loans shall be incurred pursuant to a single drawing on the First
Amendment Effective Date. All B-1 Term Loans (i) shall be denominated in
Dollars, (ii) except as hereinafter provided, shall, at the option of the
Borrower, be incurred and maintained as, and/or converted into, Base Rate
Loans or Eurodollar Loans, provided that, except as otherwise specifically
provided in Section 1.10(b), all B-1 Term Loans comprising the same
Borrowing shall at all times be of the same Type, and (iii) shall be made
by each such Lender in that aggregate principal amount which equals the
B-1 Term Loan Commitment of such Lender on the First Amendment Effective
Date. Once repaid, B-1 Term Loans incurred hereunder may not be
reborrowed. Notwithstanding anything to the contrary contained in this
Agreement (including, without limitation, in Section 4.02), the proceeds
of the Additional B-1 Term Loans (if any) shall be immediately applied by
the Borrower to repay all outstanding Term Loans of Non-Consenting Lenders
(if any) on the First Amendment Effective Date."
2. Section 1.03(a) of the Credit Agreement is hereby amended by inserting
the text ", B-1 Term Loans" immediately after the text "Term Loans" appearing in
clause (iii) of the second sentence of said Section.
3. Section 1.05(a) of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (ii) of said Section and
(ii) inserting the following new clause (iv) immediately before the period
appearing at the end of said Section:
", and (iv) in the case of B-1 Term Loans, by a promissory note duly
executed and delivered by the Borrower substantially in the form of
Exhibit B-4, with blanks appropriately completed in conformity herewith
(each a "B-1 Term Note" and, collectively, the "B-1 Term Notes")".
4. Section 1.05(b) of the Credit Agreement is hereby amended by (i)
inserting "(A)" immediately before the first word thereof and (ii) inserting the
following new sub-clause (B) at the end thereof.
"(B) The B-1 Term Note issued to each Lender that has a B-1 Term
Loan Commitment or outstanding B-1 Term Loans shall (i) be executed by the
Borrower, (ii) be payable to such Lender or its registered assigns and be
dated the First Amendment Effective Date (or, if issued after the First
Amendment Effective Date, be dated the date of issuance thereof), (iii) be
in a stated principal amount equal to the B-1 Term Loans of such Lender on
the First Amendment Effective Date (or, if issued after the First
Amendment Effective Date, be in a stated principal amount equal to the
outstanding B-1 Term Loans of such Lender at such time) and be payable in
the outstanding principal amount of B-1 Term Loans evidenced thereby, (iv)
mature on the B-1 Term Loan Maturity Date, (v) bear interest as provided
in the appropriate clause of Section 1.08 in respect of the Base Rate
Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vi) be
subject to voluntary prepayment as provided in Section 4.01, and
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mandatory repayment as provided in Section 4.02, and (vii) be entitled to
the benefits of this Agreement and the other Credit Documents."
5. Section 1.07 of the Credit Agreement is hereby amended by (i) inserting
the text ", B-1 Term Loans" immediately after the text "Term Loans" appearing in
the first sentence of said Section and (ii) inserting the text ", B-1 Term Loan
Commitments" immediately after the text "Term Loan Commitments" appearing in the
first sentence of said Section.
6. Section 3.03 of the Credit Agreement is hereby amended by inserting the
following new clause (d) at the end of said Section:
"(d) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total B-1 Term Loan Commitment (and the
B-1 Term Loan Commitment of each Lender) shall terminate in its entirety
on the First Amendment Effective Date (after giving effect to the
incurrence of B-1 Term Loans on such date)."
7. Section 4.01(a) of the Credit Agreement is hereby amended by (i)
inserting the text " B-1 Term Loans," immediately after the text "Term Loans,"
appearing in clause (i) of said Section, (ii) inserting the text "or B-1 Term
Loans" immediately after the text "Term Loans" appearing in clause (ii)(x) of
said Section, (iii) deleting the word "and" appearing at the end of clause (iii)
of said Section and (iv) inserting the text "; and (v) each voluntary prepayment
of B-1 Term Loans pursuant to this Section 4.01(a) shall be applied to reduce
the then remaining B-1 Scheduled Repayments on a pro rata basis (based upon the
then remaining unpaid principal amounts of such B-1 Scheduled Repayments after
giving effect to all prior reductions thereto)" immediately after clause (iv) of
said Section.
8. Section 4.01(b) of the Credit Agreement is hereby amended by inserting
the following new sentence at the end thereof:
"Each prepayment of any B-1 Term Loans pursuant to this Section 4.01(b)
shall be applied to reduce the then remaining B-1 Scheduled Repayments of
the B-1 Term Loans on a pro rata basis (based upon the then remaining
unpaid principal amounts of such B-1 Scheduled Repayments after giving
effect to all prior reductions thereto)."
9. Section 4.02(b) of the Credit Agreement is hereby amended by (i)
inserting the text "(i)" immediately before the text "In addition" appearing at
the beginning of said Section and (ii) inserting the following new sub-clause
(ii) at the end of said Section:
"(ii) In addition to any other mandatory repayments pursuant to this
Section 4.02, on each date set forth below (each, a "B-1 Scheduled
Repayment Date"), the Borrower shall be required to repay that principal
amount of B-1 Term Loans, to the extent then outstanding, as is set forth
below opposite each such date (each such repayment, as the same may be
reduced as provided in Sections 4.01(a), 4.01(b) or 4.02(g), a "B-1
Scheduled Repayment"):
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B-1 Scheduled Repayment Date Amount
- ---------------------------- ------
December 31, 2003 $ 750,000
March 31, 2004 $ 750,000
June 30, 2004 $ 750,000
September 30, 2004 $ 750,000
December 31, 2004 $ 750,000
March 31, 2005 $ 750,000
June 30, 2005 $ 750,000
September 30, 2005 $ 750,000
December 31, 2005 $ 750,000
March 31, 2006 $ 750,000
June 30, 2006 $ 750,000
September 30, 2006 $ 750,000
December 31, 2006 $ 750,000
March 31, 2007 $ 750,000
June 30, 2007 $ 750,000
September 30, 2007 $72,000,0000
December 31, 2007 $72,000,0000
March 31, 2008 $72,000,0000
B-1 Term Loan Maturity Date $72,000,0000".
10. Sections 4.02(c), 4.02(d), 4.02(e) and 4.02(f) of the Credit Agreement
are each hereby amended by inserting the following text immediately after the
words "Term Loans" each place such words appear in each such Section:
"or, if on or after the First Amendment Effective Date, outstanding B-1
Term Loans, in each case".
11. Section 4.02(c) of the Credit Agreement is hereby further amended by
(i) deleting the word "and" appearing at the end of clause (iii) of the second
parenthetical thereof and
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(ii) inserting the following new clause (v) immediately following the end of
clause (iv) of such parenthetical:
", and (v) equity issued by Holdings to the extent that such proceeds are
used, within 90 days after receipt thereof, to redeem or otherwise
repurchase outstanding Subordinated Notes so long as no Default or Event
of Default then exists or would result therefrom (although if all or any
portion of such proceeds are not so used within such 90-day period, such
remaining portion shall be applied on the last day of such period as
provided below in this Section 4.02(c))".
12. Section 4.02(g) of the Credit Agreement is hereby amended by inserting
the following new sentence at the end thereof:
"The amount of each principal repayment of B-1 Term Loans made as required
by Sections 4.02(c), (d), (e) and (f) shall be applied to reduce the then
remaining B-1 Scheduled Repayments on a pro rata basis (based upon the
then remaining unpaid principal amounts of such B-1 Scheduled Repayments
after giving effect to all prior reductions thereto)."
13. Section 4.02(i) of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (iii) thereof and
inserting ", (iv) all then outstanding B-1 Term Loans shall be repaid in full on
the B-1 Term Loan Maturity Date and" in lieu thereof and (ii) re-designating
clause (iv) thereof as clause "(v)".
14. Section 7.08(a) of the Credit Agreement is hereby amended by inserting
the following new sentence at the end of said Section:
"All proceeds of the Additional B-1 Term Loans (if any) will be used to
repay outstanding Term Loans of Non-Consenting Lenders (if any) on the
First Amendment Effective Date."
15. Section 8.01(i) of the Credit Agreement is hereby amended by inserting
the following new sentence at the end thereof:
"Promptly, and in any event within three Business Days after any officer
of Holdings or any of its Subsidiaries obtains any knowledge thereof,
notice of any change in the credit rating assigned by either Rating Agency
to the Borrower's long-term non-credit enhanced senior unsecured public
debt and the effective date of any such change; provided, however, that
(i) any such notice only shall be required to be delivered if immediately
prior to such change a B-1 Term Loan Pricing Reduction is in effect and
such change would cause the B-1 Term Loan Pricing Reduction to no longer
be in effect and (ii) any failure or delay in delivering any such notice
shall not entitle the Borrower to a B-1 Term Loan Pricing Reduction at a
time when the conditions for same have not otherwise been satisfied."
16. Section 9.08 of the Credit Agreement is hereby amended by amending and
restating the parenthetical therein as follows:
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"(other than Capital Expenditures to the extent constituting a Permitted
Acquisition or to the extent financed with Net Insurance Proceeds, Net
Equity Proceeds or Net Sale Proceeds)".
17. Section 9.10(i) of the Credit Agreement is hereby amended by (i)
deleting the numbers "60" appearing in sub-clause (x) of the proviso thereof and
inserting "90" in lieu thereof and (ii) deleting sub-clause (y) of the proviso
thereof and inserting the following new sub-clause (y) in lieu thereof:
"(y) the Borrower may redeem or otherwise repurchase outstanding
Subordinated Notes so long as the aggregate principal amount of
Subordinated Notes repurchased and redeemed pursuant to this clause (y)
does not exceed $75,000,000".
18. The definition of "Additional Permitted Subordinated Debt" appearing
in Section 11.01 of the Credit Agreement is hereby amended by deleting the text
"Term Loan Maturity Date" appearing in clause (ii) thereof and inserting the
text "B-1 Term Loan Maturity Date" in lieu thereof.
19. The definition of "Applicable Margin" appearing in Section 11.01 of
the Credit Agreement is hereby amended by (i) inserting the text "(ii) in
respect of B-1 Term Loans that are maintained as (x) Base Rate Loans, a
percentage per annum equal to 1.50%, and (y) Eurodollar Loans, a percentage per
annum equal to 2.50%; provided, however, the foregoing percentages in this
clause (ii) shall each be reduced by 0.25% per annum at any time, but only for
so long as, (A) no Default or Event of Default exists and (B) the Borrower's
long-term non-credit enhanced senior unsecured public debt has a publicly
announced credit rating of at least BB by S&P and at least Ba2 by Moody's and
the Borrower has delivered a written notice to the Administrative Agent to the
effect that such credit ratings are in effect (any such reduction, a "B-1 Term
Loan Pricing Reduction")," immediately following the text "2.75%," appearing in
clause (i) of said definition and (ii) re-designating clause "(ii)" of said
definition as clause "(iii)".
20. The definition of "Commitment" appearing in Section 11.01 of the
Credit Agreement is hereby amended by inserting the text ", a B-1 Term Loan
Commitment" immediately after the text "Term Loan Commitment" appearing in said
definition.
21. The definition of "Consolidated EBIT" appearing in Section 11.01 of
the Credit Agreement is hereby amended to read in its entirety as follows:
"Consolidated EBIT" shall mean, for any period, Consolidated Net
Income for such period before deducting therefrom consolidated interest
expense of Holdings and its Subsidiaries for such period (to the extent
that such consolidated interest expense was deducted in arriving at
Consolidated Net Income for such period) and provision for taxes based on
income that were included in arriving at Consolidated Net Income for such
period and without giving effect to, without duplication, (v) any
extraordinary gains or any extraordinary losses, (w) any gains or losses
from sales of assets other than from sales of inventory in the ordinary
course of business, (x) any restructuring or impairment charges to the
extent reflected as such in the financial statements of Holdings, (y) any
nonrecurring
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charges, and (z) any redemption premium paid by Holdings or the Borrower
in connection with any redemption of the 10-3/8% Senior Subordinated Notes
or any Subordinated Notes otherwise permitted under this Agreement.
22. The definition of "Consolidated EBITDA" appearing in Section 11.01 of
the Credit Agreement is hereby amended to read in its entirety as follows:
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT
for such period, adjusted by adding thereto, without duplication, (i) the
amount of all amortization of intangibles and depreciation that were
deducted in arriving at Consolidated EBIT for such period and (ii) the
amount of any other non-extraordinary non-cash write-downs or write-offs
and other non-extraordinary non-cash charges, in each case that were
deducted in arriving at Consolidated EBIT for such period; it being
understood that in determining the Senior Leverage Ratio only,
Consolidated EBITDA for any period shall be calculated on a Pro Forma
Basis to give effect to any Acquired Entity or Business acquired during
such period pursuant to a Permitted Acquisition and not subsequently sold
or otherwise disposed of by the Borrower or any of its Subsidiaries during
such period.
23. The definition of "Lender Default" appearing in Section 11.01 of the
Credit Agreement is hereby amended by inserting the text ", 1.01(e)" immediately
after the text "1.01(d)" appearing in said definition.
24. The definition of "Loan" appearing in Section 11.01 of the Credit
Agreement is hereby amended by inserting the text "each B-1 Term Loan,"
immediately after the text "Term Loan" appearing in said definition.
25. The definition of "Maturity Date" appearing in Section 11.01 of the
Credit Agreement is hereby amended by inserting the text "the B-1 Term Loan
Maturity Date," immediately after the text "Term Loan Maturity Date," appearing
in said definition.
26. The definition of "Minimum Borrowing Amount" appearing in Section
11.01 of the Credit Agreement is hereby amended by (i) deleting the word "and"
appearing at the end of clause (ii) of said definition and (ii) inserting the
text, "and (iv) for B-1 Term Loans, $5,000,000" immediately after the number
"$250,000" appearing in said definition.
27. The definition of "Net Sale Proceeds" appearing in Section 11.01 of
the Credit Agreement is hereby amended by (i) inserting the text "or any sale of
equipment pursuant to Section 9.02(xi)" immediately following the text "Asset
Sale" the first place such text appears therein and (ii) inserting the text "or
such sale pursuant to Section 9.02(xi)" immediately following the text "Asset
Sale" the second place such text appears therein.
28. The definition of "Note" appearing in Section 11.01 of the Credit
Agreement is hereby amended by inserting the text "each B-1 Term Note,"
immediately after the text "each Term Note," appearing in said definition.
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29. The definition of "Qualified Preferred Stock" appearing in Section
11.01 of the Credit Agreement is hereby amended by deleting the text "Term Loan
Maturity Date" appearing in clause (v) thereof and inserting the text "B-1 Term
Loan Maturity Date" in lieu thereof.
30. The definition of "Required Lenders" appearing in Section 11.01 of the
Credit Agreement is hereby amended by (i) inserting the text ", B-1 Term Loans"
immediately after the text "Term Loans" the first place such text appears in
said definition and (ii) inserting the text "and B-1 Term Loans" immediately
after the text "Term Loans" the second place such text appears in said
definition.
31. The definition of "Tranche" appearing in Section 11.01 of the Credit
Agreement is hereby amended by (i) deleting the word "three" appearing in said
definition and inserting the text "four" in lieu thereof and (ii) inserting the
text "B-1 Term Loans," immediately after the text "Term Loans," appearing in
said definition.
32. Section 11.01 of the Credit Agreement is hereby further amended by
inserting in the appropriate alphabetical order the following new definitions:
"Additional B-1 Term Loans" shall have the meaning provided in
Section 1.01(e).
"B-1 Term Loan" shall have the meaning provided in Section 1.01(e).
"B-1 Term Loan Commitment" shall mean, for each Lender, the amount
set forth opposite such Lender's name in Schedule I directly below the
column entitled "B-1 Term Loan Commitment," as the same may be terminated
pursuant to Sections 3.03 and/or 10. Notwithstanding the foregoing, if on
the First Amendment Effective Date (immediately prior to the incurrence of
Additional B-1 Term Loans on such date) the sum of the B-1 Term Loan
Commitments plus the aggregate principal amount of Converted B-1 Term
Loans would exceed the aggregate outstanding principal amount of the Term
Loans immediately prior to the First Amendment Effective Date, then the
B-1 Term Loan Commitments of the Lenders shall be reduced by an amount
equal to such excess (with such reduction to apply to proportionately
reduce the B-1 Term Loan Commitment of each Lender).
"B-1 Term Loan Maturity Date" shall mean June 19, 2008.
"B-1 Term Loan Pricing Reduction" shall have the meaning provided in
the definition of the term "Applicable Margin" in Section 11.01.
"B-1 Scheduled Repayment" shall have the meaning provided in
Section 4.02(b).
"B-1 Scheduled Repayment Date" shall have the meaning provided in
Section 4.02(b).
"B-1 Term Note" shall have the meaning provided in Section 1.05(a).
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"Consenting Lenders" shall have the meaning provided in Section
1.01(e).
"Converted B-1 Term Loans" shall have the meaning provided in
Section 1.01(e).
"First Amendment" shall mean the First Amendment to this Agreement,
dated as of October 28, 2003.
"First Amendment Effective Date" shall have the meaning provided in
the First Amendment.
"Non-Consenting Lender" shall mean each Lender with outstanding Term
Loans that is not a Consenting Lender.
"Total B-1 Term Loan Commitment" shall mean, at any time, the sum of
the B-1 Term Loan Commitments of each of the Lenders at such time.
33. Section 13.04(b) of the Credit Agreement is hereby amended by
inserting the text "or outstanding B-1 Term Loans" immediately after the text
"Term Loans" appearing in clause (ii) (y) of said Section.
34. Schedule I to the Credit Agreement is hereby amended by adding thereto
the information set forth on Schedule I attached hereto.
35. Exhibit A-1 to the Credit Agreement is hereby amended by inserting the
text "[B-1 Term Loans]" immediately after the text "[Term Loans] appearing in
said Exhibit.
36. The Credit Agreement is hereby further amended by adding Exhibit B-4
thereto in the form of Exhibit B-4 attached hereto.
37. Exhibit O to the Credit Agreement is hereby amended by deleting same
in its entirety and inserting in lieu thereof a new Exhibit O in the form of
Exhibit O attached hereto.
B. Miscellaneous Provisions
1. In order to induce the Lenders to enter into this First Amendment, each
of Holdings and the Borrower hereby represents and warrants to each of the
Lenders that immediately after giving effect to this First Amendment (i) all of
the representations and warranties contained in the Credit Agreement and in the
other Credit Documents are true and correct in all material respects on and as
of the First Amendment Effective Date (as defined below) (unless such
representations and warranties relate to a specific earlier date, in which case
such representations and warranties shall be true and correct in all material
respects as of such earlier date) and (ii) there exists no Default or Event of
Default on the First Amendment Effective Date.
2. This First Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
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3. This First Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts executed by all the parties hereto shall be lodged with Holdings,
the Borrower and the Administrative Agent.
4. THIS FIRST AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
5. This First Amendment shall become effective on the date (the "First
Amendment Effective Date") when:
(i) Holdings, the Borrower, each Subsidiary Guarantor, the Required
Lenders and each Lender with a B-1 Term Loan Commitment shall have signed
a counterpart hereof (whether the same or different counterparts) and
shall have delivered (including by way of facsimile transmission) the
same to the Administrative Agent at the Notice Office (but only so long
as Consenting Lenders holding outstanding Term Loans in an aggregate
principal amount which, when added to the aggregate amount of B-1 Term
Loan Commitments of the Lenders, equals at least the aggregate
outstanding principal amount of Term Loans on the First Amendment
Effective Date (before giving effect to the incurrence (including by way
of conversion of Term Loans) of B-1 Term Loans on such date) shall have
signed a counterpart of this First Amendment).
(ii) there shall have been delivered to the Administrative Agent for
the account of each of the Lenders that have requested same an
appropriate B-1 Term Note executed by the Borrower in each case in the
amount, maturity and otherwise as provided in the Credit Agreement; and
(iii) all accrued and unpaid interest on all Term Loans shall have
been paid in full and all costs of the type described in Section 1.11 of
the Credit Agreement shall have been paid in full in connection with the
repayment and/or conversion of the Term Loans on the First Amendment
Effective Date.
Notwithstanding the foregoing, so long as the First Amendment Effective Date
occurs as provided above in this Section B.5, the amendments to the Credit
Agreement effected pursuant to Sections A.21 and A.22 hereof shall be deemed
effective as of June 19, 2003.
6. By executing and delivering a copy hereof, each Credit Party hereby
agrees that all Loans (including, without limitation, the B-1 Term Loans) shall
be fully guaranteed pursuant to the Guaranties in accordance with the terms and
provisions thereof and shall be fully secured pursuant to the applicable
Security Documents.
7. From and after the First Amendment Effective Date, all references in
the Credit Agreement and in the other Credit Documents to the Credit Agreement
shall be deemed to be referenced to the Credit Agreement as modified hereby.
* * *
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IN WITNESS WHEREOF, the undersigned have caused this First Amendment to be
duly executed and delivered as of the date first above written.
FAIRCHILD SEMICONDUCTOR
INTERNATIONAL, INC.
By: /s/ Peter B. Groth
---------------------------------
Name: Peter B. Groth
Title: Vice President, Treasurer
FAIRCHILD SEMICONDUCTOR
CORPORATION
By: /s/ Peter B. Groth
---------------------------------
Name: Peter B. Groth
Title: Vice President, Treasurer
FAIRCHILD SEMICONDUCTOR CORPORATION
OF CALIFORNIA
KOTA MICROCIRCUITS, INC.
QT OPTOELECTRONICS, INC.
QT OPTOELECTRONICS
By: /s/ Matthew W. Towse
---------------------------------
Name: Matthew W. Towse
Title: Senior Vice President and
Chief Financial Officer
DEUTSCHE BANK TRUST COMPANY AMERICAS,
Individually and as Administrative
Agent
By: /s/ Gregory Shefrin
---------------------------------
Name: Gregory Shefrin
Title: Director
SIGNATURE PAGE TO THE FIRST AMENDMENT, DATED
AS OCTOBER 28, 2003, TO THE CREDIT
AGREEMENT, DATED AS OF JUNE 19, 2003, AMONG
FAIRCHILD SEMICONDUCTOR INTERNATIONAL, INC.,
FAIRCHILD SEMICONDUCTOR CORPORATION,
DEUTSCHE BANK TRUST COMPANY AMERICAS, AS
ADMINISTRATIVE AGENT, FLEET NATIONAL BANK,
AS SYNDICATION AGENT, AND CREDIT SUISSE
FIRST BOSTON, LEHMAN COMMERICIAL PAPER INC.
AND MORGAN STANLEY SENIOR FUNDING, INC., AS
CO-DOCUMENTATION AGENTS
NAME OF INSTITUTION:
Fleet National Bank
-------------------------------------------
By: /s/ William B. Williamson
---------------------------------------
Name: William B. Williamson
Title: Senior Vice President
Signatures of other members of lending
syndicate omitted.
SCHEDULE I
None.
EXHIBIT B-4
FORM OF B-1 TERM NOTE
$ New York, New York
--------
[Date]
FOR VALUE RECEIVED, FAIRCHILD SEMICONDUCTOR CORPORATION, a Delaware
corporation (the "Borrower"), hereby promises to pay to ____________ or its
registered assigns (the "Lender"), in lawful money of the United States of
America in immediately available funds, at the office of Deutsche Bank Trust
Company Americas (the "Administrative Agent") initially located at 90 Hudson
Street, Jersey City, New Jersey 07302 on the B-1 Term Loan Maturity Date (as
defined in the Credit Agreement referred to below) the principal sum of
_____________ DOLLARS ($_____) or, if less, the aggregate unpaid principal
amount of all B-1 Term Loans (as defined in the Credit Agreement) made by the
Lender pursuant to the Credit Agreement.
The Borrower also promises to pay interest on the unpaid principal
amount hereof in like money at said office from the date hereof until paid at
the rates and at the times provided in Section 1.08 of the Credit Agreement.
This Note is one of the B-1 Term Notes referred to in the Credit
Agreement, dated as of June 19, 2003, among Fairchild Semiconductor
International, Inc., the Borrower, the lenders from time to time party thereto
(including the Lender), the Administrative Agent, Fleet National Bank, as
Syndication Agent, and Credit Suisse First Boston, Lehman Commercial Paper Inc.
and Morgan Stanley Senior Funding, Inc., as Co-Documentation Agents (as amended,
modified or supplemented from time to time, the "Credit Agreement"), and is
entitled to the benefits thereof and of the other Credit Documents (as defined
in the Credit Agreement). This Note is secured by the Security Documents (as
defined in the Credit Agreement) and is entitled to the benefits of the
Guaranties (as defined in the Credit Agreement). This Note is subject to
voluntary prepayment and mandatory repayment prior to the B-1 Term Loan Maturity
Date, in whole or in part, as provided in the Credit Agreement.
If an Event of Default (as defined in the Credit Agreement) shall
occur and be continuing, the principal of and accrued interest on this Note may
become or be declared to be due and payable in the manner and with the effect
provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
Exhibit B-4
Page 2
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY
THE LAW OF THE STATE OF NEW YORK.
FAIRCHILD SEMICONDUCTOR CORPORATION
By:
---------------------------------------
Name:
Title:
EXHIBIT O
FORM OF ASSIGNMENT
AND
ASSUMPTION AGREEMENT*
This Assignment and Assumption Agreement (the "Assignment"), is
dated as of the Effective Date set forth below and is entered into by and
between the Assignor identified in item 1 below (the "Assignor") and [[the]
[each] Assignee identified in item [2] [3] below ([the] [each an] "Assignee").
[It is understood and agreed that the rights and obligations of such Assignee
hereunder are several and not joint]. Capitalized terms used herein but not
defined herein shall have the meanings given to them in the Credit Agreement
identified below (as amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"), receipt of a copy of which is hereby
acknowledged by [the] [each] Assignee. The Standard Terms and Conditions set
forth in Annex 1 hereto (the "Standard Terms and Conditions") are hereby agreed
to and incorporated herein by reference and made a part of this Assignment as if
set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells
and assigns to [the] [each] Assignee, and [the] [each] Assignee hereby
irrevocably purchases and assumes from the Assignor, subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as
of the Effective Date inserted by the Administrative Agent as contemplated
below, the interest in and to all of the Assignor's rights and obligations under
the Credit Agreement and any other documents or instruments delivered pursuant
thereto that represents the amount and percentage interest identified below of
all of the Assignor's outstanding rights and obligations under the respective
Tranches identified below (including, to the extent included in any such
Tranches, Letters of Credit and Swingline Loans) (the "Assigned Interest").
[Such] [Each] sale and assignment is without recourse to the Assignor and,
except as expressly provided in this Assignment, without representation or
warranty by the Assignor.
1. Assignor:
------------------------
[2. Assignee: ]+
-------------------------
[2.][3.] Credit Agreement: Credit Agreement, dated as of June 19, 2003, among
Fairchild Semiconductor International, Inc.,
Fairchild Semiconductor Corporation, the Lenders
party thereto from time to time, Deutsche Bank Trust
Company Americas, as Administrative Agent, Fleet
National Bank, as Syndication Agent, and Credit
Suisse First Boston, Lehman Commercial Paper Inc. and
Morgan Stanley Senior Funding, Inc., as
Co-Documentation Agents (such Credit Agreement, as in
affect on the date of this Assignment, being herein
called the "Credit Agreement").
- -------------
* This form of Assignment and Assumption Agreement should be used by Lenders
for an assignment to a single Assignee or to funds managed by the same or
related investment managers.
+ Item 2 should list the Assignee if the form is used for a single Assignee.
In the case of an assignment to funds managed by the same or related
investment managers, the Assignees should be listed in the table under
bracketed item 3.
EXHIBIT O
Page 2
[3. Assigned Interest:#
Percentage of
Aggregate Amount of Amount of Assigned
Commitment/Loans Commitment/Loans Commitment/
Tranche Assigned for All Lenders Assigned Loans@
---------------- --------------- -------- ------
[Name of
Assignee] $ $ %
------------ ----------- -------
[Name of
Assignee] $ $ %]
------------ ----------- -------
[4. Assigned Interest:**
Percentage of
Aggregate Amount of Amount of Assigned
Commitment/Loans Commitment/Loans Commitment/
Tranche Assigned for All Lenders Assigned Loan++
- ---------------- --------------- -------- ------
Revolving Loan $ $ $
Commitment/
Revolving Loans
Term Loans $ $ $
B-1 Term Loans $ $ $
Effective Date , , 200 .
- -------------
# Insert this chart if this Form of Assignment and Acceptance is being used
for assignment to funds managed by the same or related investment
managers.
@ Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder for the respective Tranche.
** Insert this chart if this Form of Assignment and Acceptance is being used
by a Lender for an assignment to a single Assignee.
++ Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder.
EXHIBIT O
Page 3
Payment Instructions:
---------------------------------------
---------------------------------------
Attention:
-----------------------------
Reference:
-----------------------------
Address for Notices:
---------------------------------------
---------------------------------------
---------------------------------------
Relationship Contact:
------------------
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR ASSIGNEE##
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
--------------------------------- ------------------------------------
Name: Name:
Title: Title:
[Consented to and]@@ Accepted:
Deutsche Bank Trust Company Americas,
as Administrative Agent
By:
---------------------------------
Name:
Title:
[Consented to:
Fairchild Semiconductor Corporation
By:
---------------------------------
Name:
Title:]***
- -------------
## Add additional signature blocks, as needed, if this Form of Assignment and
Assumption Agreement is being used by funds managed by the same or related
investment managers.
@@ Insert only if assignment is being made pursuant to Section 13.04(b)(y) of
the Credit Agreement.
*** Insert only if assignment is being made pursuant to Section 13.04(b)(y) of
the Credit Agreement and then only so long as no Default under Section
10.01 or 10.05 of the Credit Agreement exists and/or no Event of Default
exists.
ANNEX I
Fairchild Semiconductor Corporation
CREDIT AGREEMENT
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT
AND ASSUMPTION AGREEMENT
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal
and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is
free and clear of any lien, encumbrance or other adverse claim and (iii) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and to consummate the transactions contemplated hereby;
and (b) assumes no responsibility with respect to (i) any statements, warranties
or representations made in or in connection with any Credit Document, (ii) the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Credit Document or any other instrument or
document delivered pursuant thereto, other than this Assignment, or any
collateral thereunder, (iii) the financial condition of Holdings or any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any
Credit Document or (iv) the performance or observance by Holdings or any of its
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Credit Documents.
1.2. Assignee. [The] [Each] Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and to consummate the transactions contemplated hereby
and to become a Lender under the Credit Agreement, (ii) it meets all
requirements of an Eligible Transferee under the Credit Agreement, (iii) from
and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 7.05(a) thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and to purchase the Assigned
Interest on the basis of which it has made such analysis and decision and (v) if
it is organized under the laws of a jurisdiction outside the United States,
attached to this Assignment is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by
[the] [each] Assignee; and (b) agrees that (i) it will, independently and
without reliance on the Administrative Agent, the Assignor or any other Lender,
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 Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Documents are
required to be performed by it as a Lender.
2. Payment. From and after the Effective Date, the Administrative Agent shall
make all payment in respect to the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignor for amounts which
have accrued to but excluding the Effective
Annex I
Page 2
Date and to [the] [each] Assignee for amounts which have accrued from and after
the Effective Date.
3. General Provisions. This Assignment shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns. This
Assignment may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature
page of this Assignment by telecopy shall be effective as delivery of a manually
executed counterpart of the Assignment. THIS ASSIGNMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
(INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS).
-2-