Exhibit 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
November 18, 1997, among FSC SEMICONDUCTOR CORPORATION, a Delaware
corporation ("Holdings"), FAIRCHILD SEMICONDUCTOR CORPORATION, a Delaware
corporation (the "Borrower"), the lenders party to the Credit Agreement
referred to below (the "Banks"), BANKERS TRUST COMPANY, as Administrative
Agent (the "Administrative Agent"), CREDIT SUISSE FIRST BOSTON, as
Syndication Agent (the "Syndication Agent"), and CANADIAN IMPERIAL BANK OF
COMMERCE, as Documentation Agent (the "Documentation Agent", and together
with the Administrative Agent and the Syndication Agent, the "Agents").
Unless otherwise defined herein, all capitalized terms used herein and
defined in the Credit Agreement are used herein as so defined.
W I T N E S S E T H :
WHEREAS, Holdings, the Borrower, the Banks, the Administrative
Agent, the Syndication Agent and the Documentation Agent are parties to a
Credit Agreement, dated as of March 11, 1997 (as amended, modified or
supplemented through the date hereof, the "Credit Agreement");
WHEREAS, the Borrower desires to acquire substantially all of the
assets (or 100% of the capital stock of a corporation or other entity to be
formed to own and operate the business) of the Raytheon Semiconductor
Division of the Raytheon Company, for a purchase price not to exceed
$120,000,000, pursuant to an acquisition agreement (the "Acquisition
Agreement") between the Borrower and the Raytheon Company which conforms in
all material respects to the Exclusivity Agreement, dated October 27, 1997,
summarizing the terms and conditions of the Acquisition Agreement (the
"Summary of Terms"), attached hereto as Schedule I (collectively, the
"Raytheon Acquisition");
WHEREAS, in connection with the Raytheon Acquisition and in order to
consummate same, the Banks have agreed to increase the Total Revolving Loan
Commitment as set forth herein;
WHEREAS, subject to the terms and conditions set forth herein, the
Banks desire to (i) permit the Borrower to consummate the Raytheon
Acquisition and (ii) amend the Credit Agreement as provided herein; and
WHEREAS, subject to the terms and conditions set forth below, the
parties hereto agree as follows;
NOW, THEREFORE, it is agreed:
1. Notwithstanding anything to the contrary contained in Sections
9.02, 9.05 and 9.14 of the Credit Agreement, the Banks hereby consent to the
Borrower consummating the Raytheon Acquisition, so long as (i) any Liens or
Indebtedness issued or assumed in connection with the Raytheon Acquisition
are otherwise permitted under the Credit Agreement, (ii) promptly after (but
in no event later than 30 days after) the consummation of the Raytheon
Acquisition, 100% (or, in the case of a Foreign Subsidiary, excluding that
portion of the voting stock of such Foreign Subsidiary which would be in
excess of 65% of the total outstanding voting stock of such Foreign
Subsidiary) of the capital stock of any Subsidiary acquired pursuant to the
Raytheon Acquisition is pledged and delivered to the Collateral Agent for the
benefit of the Secured Creditors pursuant the Pledge Agreement, (iii) within
10 days after the Raytheon Acquisition, each newly acquired Domestic
Wholly-Owned Subsidiary (x) executes and delivers a counterpart of the
Subsidiaries Guaranty and (y) secures the Borrower's obligations pursuant to
the Credit Agreement and the other Credit Documents (or such Subsidiary's
obligations pursuant to a Subsidiaries Guaranty) by executing a counterpart
of the Security Agreement and the Pledge Agreement and (iv) no Default or
Event of Default then exists or would result therefrom.
2. Section 9.05(ii) is hereby amended by deleting the number
"$5,000,000" appearing in the last line therein and inserting in lieu thereof
the number "$75,000,000".
3. The Credit Agreement is hereby amended by inserting the
following new Section 13.19:
"13.19. (a) The Borrower covenants and agrees that on and after the
First Amendment Effective Date, it shall not be permitted to incur Loans
or have Letters of Credit issued which would cause the sum of the then
outstanding principal amount of Revolving Loans and Swingline Loans and
Letter of Credit Outstandings to exceed $75,000,000 unless, in connection
with any such Credit Event, the Borrower establishes to the satisfaction
of the Administrative Agent (including by the delivery of a certificate
of the Borrower's chief financial officer setting forth in reasonable
detail the reasons therefor) that such incurrence of such
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Loans or issuance of such Letter of Credit would be permitted pursuant to
the terms of the Senior Subordinated Note Indenture."
4. On and after the Increase Effective Date (as defined below),
Schedule I to the Credit Agreement shall be hereby amended by deleting the
column entitled "Revolving Loan Commitment" appearing therein and inserting
in lieu thereof as a new column entitled "Revolving Loan Commitment" the
information set forth on Schedule II attached hereto, which Schedule II
reflects an increase in the Total Revolving Loan Commitment of $55,000,000.
The Borrower and the Banks hereby agree to the $55,000,000 increase in the
Total Revolving Loan Commitment. Each Bank hereby acknowledges and agrees
that from and after the Increase Effective Date its Revolving Loan Commitment
shall be the amount set forth opposite such Bank's name on Schedule II
attached hereto, as such amount may be adjusted from time to time in
accordance with the terms of the Credit Agreement. In connection with the
increase in the Total Revolving Loan Commitment pursuant to this Section 4,
the Borrower shall, in coordination with the Administrative Agent and the
Banks, repay outstanding Revolving Loans of certain Banks and, if necessary,
incur additional Revolving Loans from other Banks, in each case so that the
Banks participate in each Borrowing of outstanding Revolving Loans pro rata
on the basis of their Revolving Loan Commitments (after giving effect to this
Amendment). It is hereby agreed that any breakage or similar costs of the
type described in Section 1.11 of the Credit Agreement incurred by the Banks
in connection with any repayment or reborrowing of Revolving Loans
contemplated by this Section 4 shall be for the account of the Borrower.
5. Each Credit Party hereby agrees that, (i) on or after the
Increase Effective Date and upon the reasonable request of the Collateral
Agent, such Credit Party will execute such amendments to the Mortgages as the
Collateral Agent shall reasonably require in connection with the transactions
contemplated by this Amendment and (ii) all Revolving Loans, Swingline Loans
and Letters of Credit incurred pursuant to the additional Total Revolving
Loan Commitment effected hereby shall also be entitled to the benefits of the
Security Documents and the Guaranties.
6. The Borrower hereby covenants and agrees that, on the Increase
Effective Date, the Borrower shall have executed and delivered to the
Administrative Agent for the benefit of each Bank with a Revolving Loan
Commitment and whose Revolving Loan Commitment is being increased pursuant to
Section 4 of this Amendment (each such Bank, an "Increasing Bank") a new
Revolving Note reflecting the increased Revolving Loan Commitment of such
Bank, and the Increasing Banks shall surrender to the Borrower the Revolving
Notes so replaced.
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7. In order to induce the Banks to enter into this Amendment, the
Borrower hereby represents and warrants that (i) the representations,
warranties and agreements contained in Section 7 of the Credit Agreement are
true and correct in all material respects on and as of the First Amendment
Effective Date (except with respect to any representations and warranties
limited by their terms to a specific date, which shall be true and correct in
all material respects as of such date), (ii) there exists no Default or Event
of Default on the First Amendment Effective Date, in each case both before
and after giving effect to this Amendment and (iii) neither the execution,
delivery or performance by any credit Party of this Amendment, nor the
consummation of the transactions contemplated hereby (including, the
incurrence of the additional Total Revolving Loan Commitment as contemplated
herein) violates or will violate any term, provision or condition of the
Senior Subordinated Note Documents, and no consents or approvals shall be
required to be obtained by Holdings or any of its Subsidiaries from the
holders of the Senior Subordinated Notes in connection with the transactions
contemplated herein.
8. This 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.
9. This 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 shall be lodged with the Borrower and the Administrative
Agent.
10. THIS 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.
11. This Amendment shall become effective on the date (the "First
Amendment Effective Date") when Holdings, the Borrower, each Subsidiary
Guarantor, the Required Banks and each Increasing Bank shall have signed a
counterpart hereof (whether the same or different counterparts) and shall
have delivered (including by way of facsimile) the same to the Administrative
Agent at the Notice Office.
12. For the purposes of this Amendment, the Increase Effective Date
shall mean the date on which all of the following conditions have been
satisfied:
(a) The First Amendment Effective Date shall have occurred;
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(b) There shall have been delivered to the Administrative Agent and
the Banks true and correct copies of the Acquisition Agreement, which
shall conform in all material respects with the terms and conditions set
forth in the Summary of Terms attached hereto as Schedule I with any
material departures or waivers therefrom to be reasonably satisfactory to
the Agents and the Required Banks; the Acquisition Agreement shall have
been duly executed and delivered by the parties thereto and shall be in
full force and effect; all conditions precedent to the consummation of
the Raytheon Acquisition as set forth in the Acquisition Agreement shall
have been satisfied, and not waived except with the consent (which will
not be unreasonably withheld) of each Agent and the Required Banks, to
the satisfaction of each Agent and the Required Banks; and the Raytheon
Acquisition shall have been, or shall substantially contemporaneously
(and in any event on the Increase Effective Date) be, consummated in
accordance with the Acquisition Agreement and all applicable law
(excluding immaterial violations of law which could not reasonably be
expected to have, in the aggregate for all such violations, a material
adverse effect on the consummation of the Raytheon Acquisition or on the
operations, financial condition or prospects of Holdings and its
Subsidiaries taken as a whole);
(c) After giving effect to the Raytheon Acquisition, nothing shall
have occurred (and neither the Banks nor the Agents shall have become
aware of any facts or conditions not previously known) which the Agents
or the Required Banks shall determine (i) has, or is reasonably likely to
have, a material adverse effect on the rights or remedies of the Banks or
the Agents, or on the ability of the Credit Parties to perform their
obligations to them, or (ii) has, or is reasonably likely to have, a
material adverse effect on the operations, financial condition or
prospects of Holdings and its Subsidiaries taken as a whole;
(d) The Administrative Agent shall have received from Pierce
Atwood, counsel to Holdings and its Subsidiaries, an opinion addressed to
each of the Agents and each of the Banks, in form and substance
satisfactory to the Agents, and covering such matters incident to this
Amendment and the transactions contemplated herein (including the matters
set forth in Section 13.19 of the Credit Agreement (as amended hereby) as
the Agents may reasonably request; and
(e) The Administrative Agent shall have received resolutions of the
Board of Directors of each Credit Party, which resolutions shall be
certified by the Secretary or any Assistant Secretary of such Credit
Party and shall authorize the execution, delivery and performance by such
Credit Party of this Amendment and the consummation of the transactions
contemplated hereby, and the foregoing shall be reasonably acceptable to
the Agents in their reasonable discretion;
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13. From and after the First Amendment Effective Date, all
references in the Credit Agreement and the other Credit Documents to the
Credit Agreement shall be deemed to be references to the Credit Agreement as
modified hereby.
* * *
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IN WITNESSES WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date
first above written.
FSC SEMICONDUCTOR CORPORATION
By_______________________
Name:
Title:
FAIRCHILD SEMICONDUCTOR
CORPORATION
By__________________________
Name:
Title:
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By___________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
Individually and as Syndication Agent
By___________________________
Name:
Title:
By___________________________
Name:
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE, Individually and as
Documentation Agent
By___________________________
Name:
Title:
ABN AMRO BANK, N.V.
By___________________________
Name:
Title:
By___________________________
Name:
Title:
BANKBOSTON, N.A.
By___________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By___________________________
Name:
Title:
BANK OF SCOTLAND
By___________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI
By___________________________
Name:
Title:
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By___________________________
Name:
Title:
CHANCELLOR SENIOR SECURED
MANAGEMENT
By___________________________
Name:
Title:
CORESTATES BANK, N.A.
By___________________________
Name:
Title:
DRESDNER BANK AG, New York Branch and
Grand Cayman Branch
By___________________________
Name:
Title:
By___________________________
Name:
Title:
SENIOR DEBT PORTFOLIO
By Boston Management and Research,
as Investment Advisor
By___________________________
Name:
Title:
FIRST SOURCE FINANCIAL LLP
By First Source Financial, Inc.,
its Agent/Manager
By___________________________
Name:
Title:
FLEET NATIONAL BANK
By___________________________
Name:
Title:
THE FUJI BANK, LIMITED
NEW YORK BRANCH
By___________________________
Name:
Title:
GENERAL ELECTRIC
CAPITAL CORPORATION
By___________________________
Name:
Title:
KEYBANK NATIONAL ASSOCIATION
By___________________________
Name:
Title:
MERRILL LYNCH SENIOR FLOATING RATE
FUND, INC.
By___________________________
Name:
Title:
THE MITSUBISHI TRUST & BANKING
CORPORATION, LOS ANGELES AGENCY
By___________________________
Name:
Title:
PILGRIM AMERICA PRIME RATE TRUST
By___________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By___________________________
Name:
Title:
PRIME INCOME TRUST
By___________________________
Name:
Title:
VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By___________________________
Name:
Title:
SCHEDULE I
See attached.
SCHEDULE II
Revolving
Bank Loan
Commitment _____
__________
Bankers Trust Company $30,083,333.34
Credit Suisse First Boston 30,083,333.33
Canadian Imperial Bank of Commerce 10,833,333.33
PNC Bank National Association 5,000,000.00
Fleet National Bank 5,000,000.00
The Fuji Bank, Limited New York Branch 5,000,000.00
Bank of Scotland 4,000,000.00
ABN Amro Bank, N.V. 4,000,000.00
First Source Financial LLP 4,000,000.00
Corestates Bank, N.A. 4,000,000.00
Bank of Tokyo-Mitsubishi 4,000,000.00
The Bank of Nova Scotia 4,000,000.00
The First National Bank of Boston 4,000,000.00
General Electric Capital Corporation 4,000,000.00
Banque Francaise du Commerce Exterieur 4,000,000.00
The Mitsubishi Trust & Banking Corporation,
Los Angeles Agency 4,000,000.00
Dresdner Bank AG, New York Branch
and Grand Cayman Branch 4,000,000.00
Van Kampen American Capital Prime Rate Income Trust --
Pilgrim America Prime Rate Trust --
Prime Income Trust --
Merrill Lynch Senior Floating Rate Fund, Inc. --
Total $130,000,000.00