EXHIBIT 10.1
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Second Amendment"), dated as of August 25, 1998, 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 and amended and restated as of December
31, 1997 (as amended, modified or supplemented to the date hereof, the "Credit
Agreement"); and
WHEREAS, the parties hereto wish to amend the Credit Agreement
as herein provided;
NOW, THEREFORE, it is agreed:
1. Section 4.02(f) of the Credit Agreement is hereby amended
by (i) in clause (iv) of the first parenthetical thereof, deleting the word
"and" appearing at the end thereof, (ii) redesignating clause "(v)" of the first
parenthetical thereof as clause "(vi)" thereof (and changing the reference in
said clause to "clause (v)" to "clause (vi)"), (iii) inserting, immediately
after clause (iv) of the first parenthetical thereof, the following:
", (v) 50% of the Net Sale Proceeds from the sale of the Mountain View
Property but only to the extent that the Borrower has delivered a
certificate to the Administrative Agent on or prior to the date of such
sale stating that the Borrower (or any of its Subsidiaries which are
Guarantors) intends to apply such Net Sale Proceeds towards Capital
Expenditures within 270 days after the date of such sale and" and
(iv) deleting the last sentence thereof and inserting in lieu thereof the
following new sentence:
"To the extent any Net Sale Proceeds are not required to be applied
pursuant to this Section 4.02(f) as a result of clause (iv) or (v)
contained in the parenthetical appearing in the first sentence of this
Section 4.02(f), then on the 270th day after the date of the respective
sale or disposition, the Net Sale Proceeds from the respective sale or
disposition shall be applied as otherwise required by this Section
4.02(f) (determined without regard to clause (iv) or (v), as the case
may be, contained in the parenthetical appearing in this first sentence
of this Section 4.02(f)) to the extent not actually used as
contemplated by said clause (iv) or (v), as the case may be, by said
270th day."
2. Section 9.02 of the Credit Agreement is hereby amended by
(i) in clause (ix) thereof, deleting the word "and" appearing at the end
thereof, (ii) in clause (x) thereof, deleting the period appearing at the end
thereof and inserting in lieu thereof a semi-colon and (iii) inserting in
appropriate order the following new clause:
"(xi) the Borrower (or its Subsidiary that is the fee owner of
the Mountain View Property) shall be permitted to consummate the sale
of the Mountain View Property, so long as (A) such sale is for fair
market value (as determined in good faith by the Board of Directors of
the Borrower (or such Subsidiary)), (B) such sale results in
consideration consisting of at least 85% (for this purpose, taking the
amount of cash and the fair market value of all non-cash consideration,
as determined in good faith by the Borrower (or such Subsidiary)) of
cash, (C) such sale is consummated (and the Net Sale Proceeds therefrom
are applied in accordance with, and to the extent required by, Section
4.02(f)) on or prior to May 28, 2000 and (D) there shall exist no
Default or Event of Default (both before and after giving effect
thereto)."
3. Section 9.07 of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting in lieu thereof the
following new Section 9.07:
"9.07 Capital Expenditures. (a) Holdings will not, and will
not permit any of its Subsidiaries to, make any Capital Expenditures,
except that (x) during the fiscal year ended May 31, 1998 (taken as one
accounting period), the Borrower and its Subsidiaries may make Capital
Expenditures in an aggregate amount not to exceed $85,000,000, (y)
during each of the fiscal year ended May 30, 1999 (taken as one
accounting period) and the fiscal year ended May 28, 2000 (taken as one
accounting period), the Borrower and its Subsidiaries may make Capital
Expenditures in an aggregate amount not to exceed $50,000,000 in each
such fiscal year and (z) during each fiscal year thereafter (taken as
one accounting period), the Borrower and its Subsidiaries may make
Capital Expenditures in an aggregate amount not to exceed $105,000,000.
(b) Notwithstanding anything to the contrary contained in
clause (a) above, to the extent that the aggregate amount of Capital
Expenditures made by the Borrower and its Subsidiaries pursuant to
Section 9.07(a) in any fiscal year of the Borrower is less than
$85,000,000 (or, in the case of each of the fiscal year ended May 30,
1999 and the fiscal year ended May 28, 2000, $50,000,000, or, in the
case of a fiscal year beginning after May 28, 2000, $105,000,000), the
amount of such difference, but in no case more than $25,000,000, may be
carried forward and used to make Capital Expenditures in the
immediately succeeding fiscal year, provided that amounts once carried
forward to such succeeding fiscal year shall lapse and terminate at the
end of such fiscal year.
(c) In addition to the Capital Expenditures permitted pursuant
to preceding clauses (a) and (b) of this Section 9.07, the Borrower and
its Subsidiaries may make additional Capital Expenditures consisting of
(x) the reinvestment of proceeds of Recovery Events not required to be
applied to prepay the Loans pursuant to Section 4.02(h) and (y) the Net
Sale Proceeds from the sale of the Mountain View Property not required
to be applied to prepay the Loans pursuant to Section 4.02(f)."
4. Section 9.08 of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting in lieu thereof the
following new Section 9.08:
9.08 Consolidated Interest Coverage Ratio. Holdings will not
permit the Consolidated Interest Coverage Ratio for any period of four
consecutive fiscal quarters (or, if shorter, the period beginning on
the first day of the fiscal year beginning on, or closest to, May 26,
1997 and ended on the last day of a fiscal quarter ended thereafter),
in each case taken as one accounting period, ended on the last day of a
fiscal quarter described below to be less than the amount set forth
opposite such fiscal quarter below:
Fiscal Quarter Ended
In, or Closest to Ratio
----------------- -----
August, 1997 2.60:1.0
November, 1997 2.60:1.0
February, 1998 2.60:1.0
May, 1998 3.00:1.0
August, 1998 3.00:1.0
November, 1998 2.70:1.0
February, 1999 2.50:1.0
May, 1999 2.75:1.0
August, 1999
and thereafter 3.50:1.0
5. Section 9.10 of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting in lieu thereof the
following new Section 9.10:
9.10 Maximum Leverage Ratio. Holdings will not permit the
Leverage Ratio at any time during a fiscal quarter set forth below to be greater
than the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ended
In, or Closest to Ratio
----------------- -----
August, 1997 3.50:1.0
November, 1997 3.50:1.0
February, 1998 3.50:1.0
May, 1998 3.00:1.0
August, 1998 3.25:1.0
November, 1998 4.00:1.0
February, 1999 4.00:1.0
May, 1999 3.75:1.0
August, 1999 3.00:1.0
November, 1999 3.00:1.0
February, 2000 3.00:1.0
May, 2000
and thereafter 2.50:1.0"
6. Section 11.01 of the Credit Agreement is hereby amended by
inserting the following new definition in the appropriate alphabetical order:
"Mountain View Property" shall mean that certain parcel of
land (and the improvements thereon) located at 350 Ellis Street,
Mountain View, California.
7. The Banks hereby waive compliance by Holdings with the
requirements of Section 9.09 of the Credit Agreement but only with respect to
each period of four consecutive fiscal quarters (in each case taken as one
accounting period) ended on the last day of any fiscal quarter in the fiscal
year ended May 30, 1999.
8. In order to induce the Banks to enter into this Second
Amendment, each of Holdings and the Borrower hereby represents and warrants that
(i) all 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
Second Amendment Effective Date (as defined below) and after giving effect to
this Second Amendment (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 Second Amendment Effective Date, in each case both before and
after giving effect to this Second Amendment, and (iii) neither the execution,
delivery or performance by any Credit Party of this Second Amendment, nor the
consummation of the transactions contemplated hereby, 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.
9. This Second 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.
10. This Second 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.
11. THIS SECOND 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.
12. This Second Amendment shall become effective on the date
(the "Second Amendment Effective Date") when Holdings, the Borrower, each
Subsidiary Guarantor and the Required Banks 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.
13. From and after the Second 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.
* * *
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized offers to execute and deliver this Second Amendment as of the date
first above written.
FSC SEMICONDUCTOR CORPORATION
By:
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Name:
Title:
FAIRCHILD SEMICONDUCTOR CORPORATION
By:
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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:
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Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE,
Individually and as Documentation Agent
By:
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Name:
Title:
AMARA-1 FINANCE LTD.
By:
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Name:
Title:
AMARA-2 FINANCE LTD.
By:
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Name:
Title:
BANKBOSTON, N.A.
By:
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Name:
Title:
THE BANK OF NOVA SCOTIA
By:
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Name:
Title:
BANK OF SCOTLAND
By:
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Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:
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Name:
Title:
CORESTATES BANK, N.A.
By:
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Name:
Title:
DRESDNER BANK AG, New York Branch and
Grand Cayman Branch
By:
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Name:
Title:
By:
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Name:
Title:
FIRST SOURCE FINANCIAL LLP
By First Source Financial, Inc.,
its Agent/Manager
By:
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Name:
Title:
FLEET NATIONAL BANK
By:
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Name:
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY
By:
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Name:
Title:
NATEXIS BANQUE BFCE
By:
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Name:
Title:
By:
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Name:
Title:
PILGRIM AMERICA PRIME RATE TRUST
By: PILGRIM AMERICA INVESTMENTS,
INC. as its Investment Manager
By:
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Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
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Name:
Title:
ABN AMRO BANK, N.V.
By:
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Name:
Title:
By:
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Name:
Title:
MORGAN STANLEY DEAN WITTER PRIME
INCOME TRUST
By:
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Name:
Title:
VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By:
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Name:
Title:
ACKNOWLEDGED AND AGREED:
FAIRCHILD SEMICONDUCTOR CORPORATION
OF CALIFORNIA
By:
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Name:
Title: