EXHIBIT 10.123
THIRD AMENDMENT TO FIRST AMENDED AND RESTATED
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REVOLVING CREDIT AGREEMENT
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THIS THIRD AMENDMENT TO FIRST AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (the "Amendment"), dated as of May 28, 1998, is entered into by and
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among MICRON TECHNOLOGY, INC. (the "Company"), BANK OF AMERICA NATIONAL TRUST
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AND SAVINGS ASSOCIATION, as agent for itself and the Banks (the "Agent"), and
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the several financial institutions party to the Credit Agreement (collectively,
the "Banks").
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RECITALS
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A. The Company, Banks, and Agent are parties to a First Amended and
Restated Revolving Credit Agreement dated as of May 28, 1997, as amended by a
First Amendment to First Amended and Restated Revolving Credit Agreement dated
as of November 28, 1997 and a Second Amendment to First Amended and Restated
Revolving Credit Agreement dated as of February 26, 1998 (as so amended, the
"Credit Agreement") pursuant to which the Banks have extended certain credit
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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
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herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
2. Amendments to Credit Agreement.
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(a) Section 1.01 of the Credit Agreement shall be amended at the
defined term "Applicable Fee Percentage" by amending and restating such defined
term in its entirety to read as follows:
"Applicable Fee Percentage" means, for any date, the per annum
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percentage amount set forth below based on the Leverage Ratio set
forth in the Compliance Certificate most recently delivered pursuant
to Section 6.02(a):
1
Applicable
Level Leverage Ratio Fee Percentage
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1 Less than 0.250 0.200%
2 Greater than or equal to
0.250 but less than 0.350 0.275%
3 Greater than or equal to
0.350 but less than 0.500 0.325%
4 Greater than or equal to 0.500 0.400%
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; provided, however, that
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for the period from the Third Amendment Effective Date through the 45th
day after the end of the Company's fiscal quarter ending May 28, 1998, the
Applicable Percentage shall be Level 3.
(b) Section 1.01 of the Credit Agreement shall be amended at the defined
term "Applicable Margin" by amending and restating such defined term in its
entirety to read as follows:
"Applicable Margin" means, for any date, with respect to each Offshore
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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(a):
Applicable Margin
Offshore Base
Rate Rate
Level Leverage Ratio Loans Loans
----- -------------- ---------- ------
1 Less than 0.250 0.525% 00.00%
2 Greater than or equal to
0.250 but less than 0.350 0.775% 00.00%
3 Greater than or equal to
0.350 but less than 0.500 0.875% 00.00%
4 Greater than or equal
to 0.500 1.000% 00.00%
2
provided, that at any time as the aggregate outstanding principal
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amount of Loans equals or exceeds 50% of the combined Commitments, 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; provided, however,
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that for the period from the Third Amendment Effective Date through
the 45th day after the end of the Company's fiscal quarter ending May
31, 1998, the Applicable Percentage shall be Level 3.
(c) Section 1.01 of the Credit Agreement shall be amended by adding
the following defined term in appropriate alphabetical order:
"Third Amendment Effective Date" means the "Effective Date" as defined
in the Third Amendment to First Amended and Restated Revolving Credit
Agreement dated as of May 28, 1998 among the Company, the Agent and
the Banks.
(d) Section 7.13 of the Credit Agreement shall be amended and restated
in its entirety to read as follows:
7.13 Adjusted Quick Ratio. The Company shall not permit, as of the
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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 Semiconductor Operations
Subsidiaries on a combined basis as shown in the Semiconductor
Operations Supplemental Schedules, to (b) the sum (without
duplication) of (i) current liabilities of the Company and its
Semiconductor Operations Subsidiaries on a combined basis (plus long-
term liabilities related to customer deposits) as shown in the
Semiconductor Operations Supplemental Schedules, and (ii) any Loans
outstanding, to be less than the amount set forth below for the
applicable date:
As of the last day of the Minimum Adjusted
fiscal quarter ending Quick Ratio
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Closing Date through 5/28/98 0.75 to 1.00
9/3/98 and thereafter 1.00 to 1.00
(e) Section 7.16 of the Credit Agreement shall be amended and restated
in its entirety to read as follows:
7.16 Minimum Fixed Charge Coverage Ratio. The Company shall not
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permit, as of the last day of any fiscal quarter, the ratio of (a)
EBITDA for the
3
period consisting of the four consecutive fiscal quarters ending on
such day to (b) the sum of (i) interest expense included in EBITDA for
such period (unadjusted for interest income, if any) and (ii) current
portion of long-term debt, to be less than the following opposite the
period indicated:
Minimum Fixed
As of the last day of the Charge Coverage
fiscal quarter ending Ratio
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2/27/97 2.50 to 1.00
5/29/97 2.50 to 1.00
8/28/97 3.00 to 1.00
11/27/97 3.50 to 1.00
2/26/98 4.00 to 1.00
5/28/98 and
thereafter 3.00 to 1.00
(f) Section 7.17 of the Credit Agreement shall be amended and restated
in its entirety to read as follows:
7.17 Maximum Operating Losses. The Company shall not permit Combined
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EBIT Losses to exceed (a) 2% of Combined Tangible Net Worth in any
fiscal quarter ending prior to the fiscal quarter ending February 26,
1998; 5% of Combined Tangible Net Worth for the fiscal quarter ending
February 26, 1998; 5% of Combined Tangible Net Worth for the fiscal
quarter ending May 28, 1998; and 2% of Combined Tangible Net Worth for
any fiscal quarter ending after May 28, 1998, or (b) 5% of Combined
Tangible Net Worth in any period of four consecutive fiscal quarters.
(g) Schedule 2 to Exhibit D (the form of Compliance Certificate) shall
be amended and restated in its entirety in the form of Schedule 2 attached
hereto.
3. Representations and Warranties. The Company hereby represents and
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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.
(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
4
5.05 and 5.14) are true and correct, except to the extent such representations
and warranties expressly refer 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 the date
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first above written (the "Effective Date"), provided that the Agent has received
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from the Company and the Majority Banks a duly executed original (or, if elected
by the Agent, an executed facsimile copy) of this Amendment.
5. Reservation of Rights. The Company acknowledges and agrees that the
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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.
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(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 and in the other Loan Documents 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 (and any other document required
herein) 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 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.
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(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.
6
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
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Name: Norman L. Schlachter
Title: Treasurer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: /s/ Carl F. Fye
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Name: Carl F. Fye
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By: /s/ Michael McCutchin
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Name: Michael McCutchin
Title: Managing Director
ABN AMRO BANK N.V., as Co-Agent and as
a Bank
By: /s/ Lee-Lee Miao /s/ Paul S. Faust
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Name: Lee-Lee Miao Paul S. Faust
Title: Vice President Vice President
THE BANK OF NOVA SCOTIA,
as Co-Agent and as a Bank
By: /s/ M. Van Otterloo
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Name: Maarty Van Otterloo
Title: Senior Relationship Manager
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FLEET NATIONAL BANK, as Co-Agent and
as a Bank
By: /s/ Frank Benesh
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Name: Frank Benesh
Title: V.P.
PNC BANK, NATIONAL ASSOCIATION, as Co-Agent and
as a Bank
By: /s/ Philip K. Liebscher
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Name: Philip K. Liebscher
Title: Vice-President
UNITED STATES NATIONAL BANK OF
OREGON, as Co-Agent and as a Bank
By: /s/ Ross Beaton
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Name: Ross Beaton
Title: Vice President
ROYAL BANK OF CANADA
By: /s/ Michael A. Cole
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Name: Michael A. Cole
Title: Senior Manager
BANQUE NATIONALE DE PARIS
By: /s/ Rafael C. Lumanlan /s/ Jeffrey S. Kajisa
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Name: Rafael C. Lumanlan Jeffrey S. Kajisa
Title: Vice President Assistant Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ J.T. Taylor
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Name: J.T. Taylor
Title: Assistant Vice President
8
MELLON BANK, N.A.
By: /s/ Edwin H. Wiest
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Name: Edwin H. Wiest
Title: First Vice President
THE DAI-ICHI KANGYO BANK, LIMITED, LOS ANGELES
AGENCY
By: /s/ Takuo Yoshida
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Name: Takuo Yoshida
Title: General Manager
THE FUJI BANK, LIMITED, LOS ANGELES
AGENCY
By: /s/ Masahito Fukuda
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Name: Masahito Fukuda
Title: Joint General Manager
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, SAN FRANCISCO AGENCY
By: /s/ Haruhiko Masuda
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Name: Haruhiko Masuda
Title: Deputy General Manager
THE SUMITOMO BANK LIMITED
By: /s/ John C. Kissinger
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Name: John C. Kissinger
Title: Joint General Manager
FIRST SECURITY BANK, N.A.
By: /s/ Brian W. Cook
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Name: Brian W. Cook
Title: Vice President
9
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES AGENCY
By: /s/ T. Morgan Edwards II
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Name: T. Morgan Edwards II
Title: Deputy General Manager
THE SAKURA BANK, LIMITED
By: _________________________
Name:________________________
Title:_______________________
THE BANK OF NEW YORK
By: /s/ Robert Louk
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Name: Robert Louk
Title: Vice President
BANQUE PARIBAS
By: /s/ Jonathan Leone
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Name: Jonathan Leone
Title: Vice President
By: /s/ Paul A. Runge
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Name: Paul Runge
Title: Managing Director
10
SCHEDULE 2
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TO THE COMPLIANCE CERTIFICATE
($ IN 000'S)
Date: _____________, 199_
For the fiscal quarter/year
ended _____________, 199_
(Unless otherwise noted, all covenants are to be calculated on basis of the
Company and the Semiconductor Operations Subsidiaries on a combined basis.)
A. SECTION 7.13: ADJUSTED QUICK RATIO.
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1. Cash, cash equivalents and liquid
investments: $____________
2. Net trade accounts receivable: $____________
3. Current liabilities: $____________
4. Long-term liabilities related to
customer deposits and loans: $____________
5. Any Loans outstanding: $____________
6. Adjusted Quick Ratio (Lines A.1 +
A.2) divided by (Lines A.3 + A.4 +
A.5): ____ to 1.00
Line A.6 not to be less than:
As of the last day of the Minimum Adjusted
fiscal quarter ending Quick Ratio
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Closing Date through 5/28/98 0.75 to 1.00
9/3/98 and thereafter 1.00 to 1.00
FORM OF COMPLIANCE CERTIFICATE
S-1
B. SECTION 7.14: COMBINED TANGIBLE NET WORTH.
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1. Total net assets:/1/ $___________
2. Net book value of intangible assets:/1/ $___________
3. Line B.1 less Line B.2: $
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4. 75% of Combined Net Income (not
reduced by Combined Net Loss)
commencing with FQ ending 5/29/97: $___________
5. 100% of increases in Combined
Tangible Net Worth resulting from
certain equity offerings after
Closing Date: $___________
6. $_________ + Line B.4 + B.5: $
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Line B.3 not to be less than Line B.6
C. SECTION 7.15: LEVERAGE RATIO.
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1. Combined Adjusted Total Liabilities:
a. Total liabilities: $___________
b. Certain off-balance sheet
obligations: $___________
c. Total liabilities
(Lines C.1a + C.1b): $
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d. Permitted Subordinated Debt: $___________
e. Adjusted total liabilities
(Line C.1c less Line C.1d): $
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2. Line B.3 (Combined Tangible Net
Worth): $___________
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/1/ Excluding non-semiconductor operations and assets otherwise included
therein.
FORM OF COMPLIANCE CERTIFICATE
S-2
3. Leverage Ratio (Line C.1e divided by
Line C.2): _____ to 1.00
Leverage Ratio not to exceed 0.75 to 1
D. SECTION 7.16: MINIMUM FIXED CHARGE COVERAGE RATIO.
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1. EBITDA for four consecutive quarters
ending on date of above financial
statements ("Subject Period"):
a. Combined Net Income or
Combined Net Loss: $____________
b. Combined Interest Expense:/2/ $____________
c. Income tax expense:/1/ $____________
d. Depreciation expense:/1/ $____________
e. Amortization expense:/1/ $____________
f. EBITDA (Lines D.1a + b +
c + d + e): $____________
2. Combined interest expense
for Subject Period (Line D.1b): $____________
3. Current portion of long-term debt: $____________
4. Fixed Charge Coverage Ratio
(Line D.1f divided by (Lines D.1 + D.2): _____ to 1.00
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/2/ To the extent deducted in determining Semiconductor Operations Group Net
Income or Net Loss.
FORM OF COMPLIANCE CERTIFICATE
S-3
Fixed Charge Coverage Ratio not to be less than:
Minimum Fixed
As of the last day of the Charge Coverage
fiscal quarter ending Ratio
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2/27/97 2.50 to 1.00
5/29/97 2.50 to 1.00
8/28/97 3.00 to 1.00
11/27/97 3.50 to 1.00
2/26/98 4.00 to 1.00
5/28/98 and 3.00 to 1.00
thereafter
E. SECTION 7.17: MAXIMUM OPERATING LOSS.
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1. Combined EBIT Loss for quarter
ending on above date: $____________
2. Combined EBIT Loss for Subject Period: $____________
3. Line B.3 (Combined Tangible Net Worth): $____________
a. 2% of Line E.3 for any fiscal quarter
ending prior to February 26, 1998;
5% of Line E.3 for fiscal quarter
ending February 26, 1998;
5% of Line E.3 for the fiscal quarter
ending May 28, 1998; and
2% of Line E.3 for any fiscal quarter
ending after May 28, 1998: $____________
b. 5% of Line E.3: $____________
Line E.1 not to exceed Line E.3a
Line E.2 not to exceed Line E.3b
F. SECTION 7.01(j): PURCHASE MONEY LIENS.
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1. Indebtedness secured by purchase money
and other similar security interests: $____________
FORM OF COMPLIANCE CERTIFICATE
S-4
2. Combined net property, plant and
equipment: $____________
3. 20% of Line F.2: $____________
Line F.1 not to exceed Line F.3
G. SECTIONS 7.01(q), (r): SECURED PERMITTED SWAP OBLIGATIONS; ORDINARY COURSE
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SECURED INDEBTEDNESS.
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1. Permitted Swap Obligations secured
by cash collateral or government
securities: $____________
2. Ordinary course secured Indebtedness
for other than borrowed money: $____________
3. Combined Tangible Assets: $____________
a. Total assets:/3/ $____________
b. Line B.2: $____________
c. Line G.3a less Line G.3b: $____________
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4. 5% of Line G.3c: $____________
Lines G.1 + G 2 not to exceed Line G.4
H. SECTION 7.03(d): DISPOSITION OF MATERIAL ASSETS.
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1. Aggregate fair market value of
all material (greater than $1,000,000
individually) assets sold outside
ordinary course of business: $____________
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/3/ Excluding non-semiconductor operations and assets otherwise included
therein.
FORM OF COMPLIANCE CERTIFICATE
S-5
2. Aggregate fair market value of
all material (greater than $1,000,000
individually) assets disposed of pursuant
to sale-leaseback transactions
not constituting Permitted Sale-
Leaseback Transactions: $____________
3. Lines H.1 + H.2: $____________
4. 10% of Line G.3c (Combined
Tangible Assets): $____________
Line H.3 not to exceed Line H.4
I. SECTION 7.05(d): INVESTMENTS IN MICRON ELECTRONICS, INC.
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1. Aggregate principal amount of all
outstanding extensions of credit to,
plus cumulative amount of all equity
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contributions made since Closing Date
in, Micron Electronics, Inc: $____________
Line I.1 not to exceed $100,000,000
J. SECTION 7.05(e): INVESTMENTS IN NON SEMICONDUCTOR OPERATIONS SUBSIDIARIES
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(OTHER THAN MICRON ELECTRONICS, INC.).
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1. Aggregate principal amount of all
outstanding extensions of credit to,
plus cumulative amount of all equity
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contributions made since Closing Date
in, non Semiconductor Operations
Subsidiaries other than Micron
Electronics, Inc.: $____________
Line J.1 not to exceed Line E.3b (5% of Combined Tangible Net Worth)
FORM OF COMPLIANCE CERTIFICATE
S-6
K. SECTION 7.05(g): ACQUISITIONS OR MINORITY INTERESTS.
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Cumulative aggregate consideration paid
(including assumption of debt),
aggregate principal amount of all out-
standing extensions of credit, plus
cumulative amount of all equity
contributions made since Closing
Date in connection with: $___________
1. Acquisitions: $___________
2. Acquisitions of minority interests: $___________
3. Acquisitions of minority interests in
Subsidiaries that are not Wholly-Owned
Semiconductor Operations Subsidiaries: $___________
4. Lines K.1 + K.2 + K.3: $___________
5. 25% of Line G.3c
(Combined Tangible Assets): $___________
Line K.4 not to exceed Line K.5
L. SECTION 7.05(o): OTHER INVESTMENTS.
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1. Cumulative aggregate consideration
paid (including assumption of debt),
aggregate principal amount of all
outstanding extensions of credit,
plus cumulative amount of all
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equity contributions made since
Closing Date not otherwise
permitted by Section 7.05: $___________
2. 2% of Line G.3c (Combined
Tangible Assets): $___________
Line L.1 not to exceed Line L.2
FORM OF COMPLIANCE CERTIFICATE
S-7
M. SECTION 7.06(h): INDEBTEDNESS INCURRED FROM OTHER THAN COMPANY OR
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SEMICONDUCTOR OPERATIONS SUBSIDIARIES.
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1. Indebtedness incurred by Semiconductor
Operations Subsidiaries from Persons
other than Company or Semiconductor
Operations Subsidiaries: $___________
Line M.1 not to exceed $50,000,000
N. SECTION 7.06(j): PERMITTED SUBORDINATED DEBT.
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1. Permitted Subordinated Debt of Company: $___________
Line N.1 not to exceed $500,000,000
O. SECTION 7.06(k): SENIOR UNSECURED DEBT.
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1. Senior Unsecured Debt of Company: $___________
Line O.1 not to exceed $300,000,000
P. SECTION 7.06(p): OTHER INDEBTEDNESS AND CONTINGENT OBLIGATIONS FOR OTHER
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THAN BORROWED MONEY.
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1. Other Indebtedness and Contingent
Obligations other than for
borrowed money: $___________
Line P.1 not to exceed $50,000,000
Q. SECTION 7.09(d): DISTRIBUTIONS.
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1. Distributions during Subject Period: $___________
2. 25% of Line D.1a (Combined Net Income): $___________
Line Q.1 not to exceed Line Q.2
FORM OF COMPLIANCE CERTIFICATE
S-8