EX-10.1
Published on June 22, 2017
Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 3
Dated as of June 21, 2017
to
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 27, 2013, as amended and restated as of February 4, 2015
THIS AMENDMENT NO. 3 (this Amendment) is made as of June 21, 2017 by and among Microchip Technology Incorporated, a Delaware corporation (the Borrower), the financial institutions listed on the signature pages hereof and JPMorgan Chase Bank, N.A., as Administrative Agent (the Administrative Agent), under that certain Amended and Restated Credit Agreement dated as of June 27, 2013, as amended and restated as of February 4, 2015, by and among the Borrower, the Lenders and the Administrative Agent (as further amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement). Capitalized terms used herein and not otherwise defined herein shall have the respective meanings given to them in the Credit Agreement.
WHEREAS, the Borrower has requested that the requisite Lenders and the Administrative Agent agree to make certain amendments to the Credit Agreement;
WHEREAS, the Borrower, the Lenders party hereto and the Administrative Agent have so agreed on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower, the Lenders party hereto and the Administrative Agent hereby agree to enter into this Amendment.
1. Amendments to the Credit Agreement. Effective as of the Amendment No. 3 Effective Date (as defined below), the parties hereto agree that the Credit Agreement is hereby amended as follows:
(a) Section 6.09 of the Credit Agreement is hereby amended by restating the parenthetical contained in the first sentence thereof as follows:
(other than the Junior Convertible Debentures, which may be prepaid, defeased, redeemed, retired, repurchased or otherwise acquired for value by the Borrower at any time but only so long as, and solely to the extent that, such prepayment, defeasement, redemption, retiring, repurchase or other acquisition for value is effected solely with common stock of the Borrower, the exchange of Junior Convertible Debentures for New Subordinated Debt and/or the net cash proceeds of the issuance by the Borrower of New Subordinated Debt (or any combination of the foregoing, together with any cash payment of accrued and unpaid interest) within two hundred thirty-five (235) days of the Amendment No. 2 Effective Date)
(b) Section 6.11(a) of the Credit Agreement is hereby amended by restating the first sentence thereof in its entirety as follows:
The Borrower will not permit the ratio (the Total Leverage Ratio), determined as of the end of each of its fiscal quarters ending on and after December 31, 2016, of (i) Consolidated Total Indebtedness to (ii) Consolidated EBITDA for the period of four (4) consecutive fiscal quarters ending with the end of such fiscal quarter, all calculated for the Borrower and its Subsidiaries on a consolidated basis, to be greater than 5.00 to 1.00 for any such period; provided that, for purposes of calculating the Total Leverage Ratio, any outstanding principal amount (up to, but not in excess of, $700,000,000 in the aggregate) in respect of the Junior Convertible Debentures (and, after the refinancing thereof in whole or in part with the proceeds of the New Subordinated Debt and/or the exchange of Junior Convertible Debentures for New Subordinated Debt (together with any common stock of the Borrower delivered in connection with such exchange and any cash payment of accrued and unpaid interest), the New Subordinated Debt to the extent the New Subordinated Debt (together with any common stock of the Borrower issued in connection with such exchange and any cash payment of accrued and unpaid interest) is so issued or so provided in exchange for Junior Convertible Debentures within two hundred thirty-five (235) days of the Amendment No. 2 Effective Date) shall be excluded from such calculation; provided, however, to the extent the Junior Convertible Debentures are refinanced in whole or in part with the proceeds of any New Subordinated Debt that is issued (or pursuant to any exchange of such Junior Convertible Debentures for such New Subordinated Debt (together with any common stock of the Borrower issued in connection with such exchange and any cash payment of accrued and unpaid interest) that occurs) more than seventy-five (75) days after the Amendment No. 2 Effective Date but on or prior to the date that is two hundred thirty-five (235) days after the Amendment No. 2 Effective Date, such New Subordinated Debt shall be excluded for purposes of calculating the Total Leverage Ratio for purposes of this Section 6.11(a), but not for purposes of determining or calculating the Total Leverage Ratio for purposes of the Applicable Rate.
2. Conditions of Effectiveness. The effectiveness of this Amendment (the Amendment No. 3 Effective Date) is subject to the following conditions precedent:
(a) The Administrative Agent shall have received (i) counterparts of this Amendment duly executed by the Borrower, the Required Lenders, the Issuing Bank, the Swingline Lender and the Administrative Agent and (ii) counterparts of the Consent and Reaffirmation attached as Exhibit A hereto duly executed by the Subsidiary Guarantors.
(b) The Administrative Agent shall have received payment of the Administrative Agents and its affiliates reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and expenses of counsel for the Administrative Agent) in connection with this Amendment and the other Loan Documents.
3. Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:
(a) This Amendment and the Credit Agreement as modified hereby constitute valid and binding obligations of the Borrower and are enforceable against the Borrower in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
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(b) As of the date hereof and after giving effect to the terms of this Amendment, (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the representations and warranties of the Borrower set forth in the Credit Agreement are true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects), except, in each case, to the extent any such representation or warranty specifically refers to an earlier date, in which case it shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) as of such earlier date.
4. Reference to and Effect on the Credit Agreement.
(a) Upon the effectiveness hereof, each reference to the Credit Agreement in the Credit Agreement or any other Loan Document shall mean and be a reference to the Credit Agreement as amended hereby.
(b) Each Loan Document and all other documents, instruments and agreements executed and/or delivered in connection therewith shall remain in full force and effect and are hereby ratified and confirmed.
(c) Except with respect to the subject matter hereof, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent or the Lenders, nor constitute a waiver of any provision of the Credit Agreement, the Loan Documents or any other documents, instruments and agreements executed and/or delivered in connection therewith.
(d) This Amendment is a Loan Document.
5. Governing Law. This Amendment shall be construed in accordance with and governed by the law of the State of New York.
6. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.
7. Counterparts. This Amendment may be executed by one or more of the parties hereto on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Signatures delivered by facsimile or PDF shall have the same force and effect as manual signatures delivered in person.
[Signature Pages Follow]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first above written.
| MICROCHIP TECHNOLOGY INCORPORATED, | ||
| as the Borrower | ||
| By: | /s/ J. Eric Bjornholt |
|
| Name: | J. Eric Bjornholt | |
| Title: | Vice President and Chief Financial Officer | |
Signature Page to Amendment No. 3 to
Amended and Restated Credit Agreement dated as of June 27, 2013,
as amended and restated as of February 4, 2015
Microchip Technology Incorporated
| JPMORGAN CHASE BANK, N.A., | ||
| individually as a Lender, as the Issuing Bank, as the Swingline Lender and as Administrative Agent | ||
| By: | /s/ Caitlin Stewart |
|
| Name: | Caitlin Stewart | |
| Title: | Vice President | |
Signature Page to Amendment No. 3 to
Amended and Restated Credit Agreement dated as of June 27, 2013,
as amended and restated as of February 4, 2015
Microchip Technology Incorporated
| WELLS FARGO BANK, NATIONAL ASSOCIATION, | ||
| as a Lender | ||
| By: | /s/ S. Michael St. Geme |
|
| Name: | S. Michael St. Geme | |
| Title: | Managing Director | |
Signature Page to Amendment No. 3 to
Amended and Restated Credit Agreement dated as of June 27, 2013,
as amended and restated as of February 4, 2015
Microchip Technology Incorporated
| BANK OF AMERICA, N.A., | ||
| as a Lender | ||
| By: | /s/ Christopher G. Fallone |
|
| Name: | Christopher G. Fallone | |
| Title: | Associate | |
Signature Page to Amendment No. 3 to
Amended and Restated Credit Agreement dated as of June 27, 2013,
as amended and restated as of February 4, 2015
Microchip Technology Incorporated
| HSBC BANK USA, NATIONAL ASSOCIATION, | ||
| as a Lender | ||
| By: | /s/ Aleem Shamji |
|
| Name: | Aleem Shamji | |
| Title: | Director | |
Signature Page to Amendment No. 3 to
Amended and Restated Credit Agreement dated as of June 27, 2013,
as amended and restated as of February 4, 2015
Microchip Technology Incorporated
| U.S. BANK NATIONAL ASSOCIATION, | ||
| as a Lender | ||
| By: | /s/ Matt S. Scullin |
|
| Name: | Matt S. Scullin | |
| Title: | Vice President | |
Signature Page to Amendment No. 3 to
Amended and Restated Credit Agreement dated as of June 27, 2013,
as amended and restated as of February 4, 2015
Microchip Technology Incorporated
| BMO HARRIS BANK, N.A., | ||
| as a Lender | ||
| By: | /s/ Matthew Freeman |
|
| Name: | Matthew Freeman | |
| Title: | Senior Vice President, Director | |
Signature Page to Amendment No. 3 to
Amended and Restated Credit Agreement dated as of June 27, 2013,
as amended and restated as of February 4, 2015
Microchip Technology Incorporated
| SUNTRUST BANK, | ||
| as a Lender | ||
| By: | /s/ Min Park |
|
| Name: | Min Park | |
| Title: | Vice President | |
Signature Page to Amendment No. 3 to
Amended and Restated Credit Agreement dated as of June 27, 2013,
as amended and restated as of February 4, 2015
Microchip Technology Incorporated
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., | ||
| as a Lender | ||
| By: | /s/ Lillian Kim |
|
| Name: | Lillian Kim | |
| Title: | Director | |
Signature Page to Amendment No. 3 to
Amended and Restated Credit Agreement dated as of June 27, 2013,
as amended and restated as of February 4, 2015
Microchip Technology Incorporated
| COMPASS BANK, | ||
| as a Lender | ||
| By: | /s/ Raj Nambiar |
|
| Name: | Raj Nambiar | |
| Title: | Senior Vice President | |
Signature Page to Amendment No. 3 to
Amended and Restated Credit Agreement dated as of June 27, 2013,
as amended and restated as of February 4, 2015
Microchip Technology Incorporated
| FIFTH THIRD BANK, | ||
| as a Lender | ||
| By: | /s/ Glen Mastey |
|
| Name: | Glen Mastey | |
| Title: | Director | |
Signature Page to Amendment No. 3 to
Amended and Restated Credit Agreement dated as of June 27, 2013,
as amended and restated as of February 4, 2015
Microchip Technology Incorporated
| DBS BANK LTD., | ||
| as a Lender | ||
| By: | /s/ Loy Hwee Chuan |
|
| Name: | Loy Hwee Chuan | |
| Title: | Vice Present | |
Signature Page to Amendment No. 3 to
Amended and Restated Credit Agreement dated as of June 27, 2013,
as amended and restated as of February 4, 2015
Microchip Technology Incorporated
| BRANCH BANKING AND TRUST COMPANY, | ||
| as a Lender | ||
| By: | /s/ Sarah Bryson |
|
| Name: | Sarah Bryson | |
| Title: | Senior Vice President | |
Signature Page to Amendment No. 3 to
Amended and Restated Credit Agreement dated as of June 27, 2013,
as amended and restated as of February 4, 2015
Microchip Technology Incorporated
| CITIZENS BANK, N.A., | ||
| as a Lender | ||
| By: | /s/ Patricia F. Grieve |
|
| Name: | Patricia F. Grieve | |
| Title: | Vice President | |
Signature Page to Amendment No. 3 to
Amended and Restated Credit Agreement dated as of June 27, 2013,
as amended and restated as of February 4, 2015
Microchip Technology Incorporated
| ZB, N.A. dba NATIONAL BANK OF ARIZONA, | ||
| as a Lender | ||
| By: | /s/ Sabina Aaronson |
|
| Name: | Sabina Aaronson | |
| Title: | Vice President | |
Signature Page to Amendment No. 3 to
Amended and Restated Credit Agreement dated as of June 27, 2013,
as amended and restated as of February 4, 2015
Microchip Technology Incorporated
| BOKF, NA d/b/a Bank of Arizona, | ||
| as a Lender | ||
| By: | /s/ James Wessel |
|
| Name: | James Wessel | |
| Title: | Senior Vice President | |
Signature Page to Amendment No. 3 to
Amended and Restated Credit Agreement dated as of June 27, 2013,
as amended and restated as of February 4, 2015
Microchip Technology Incorporated
| MIDFIRST BANK, | ||
| as a Lender | ||
| By: | /s/ Rory Nordvold |
|
| Name: | Rory Nordvold | |
| Title: | First Vice President | |
Signature Page to Amendment No. 3 to
Amended and Restated Credit Agreement dated as of June 27, 2013,
as amended and restated as of February 4, 2015
Microchip Technology Incorporated
| THE BANK OF EAST ASIA, LIMITED, NEW YORK BRANCH, |
||
| as a Lender | ||
| By: | /s/ James Hua |
|
| Name: | James Hua | |
| Title: | Senior Vice President | |
| By: | /s/ Kitty Sin |
|
| Name: | Kitty Sin | |
| Title: | Senior Vice President | |
Signature Page to Amendment No. 3 to
Amended and Restated Credit Agreement dated as of June 27, 2013,
as amended and restated as of February 4, 2015
Microchip Technology Incorporated
| TAIWAN COOPERATIVE BANK, | ||
| as a Lender | ||
| By: | /s/ Tsung-Chih Wu |
|
| Name: | Tsung-Chih Wu | |
| Title: | VGM | |
Signature Page to Amendment No. 3 to
Amended and Restated Credit Agreement dated as of June 27, 2013,
as amended and restated as of February 4, 2015
Microchip Technology Incorporated
EXHIBIT A
Consent and Reaffirmation
Each of the undersigned hereby acknowledges receipt of a copy of the foregoing Amendment No. 3 to the Amended and Restated Credit Agreement dated June 27, 2013, as amended and restated as of February 4, 2015 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement) by and among Microchip Technology Incorporated, a Delaware corporation (the Borrower), the Lenders and JPMorgan Chase Bank, N.A., as Administrative Agent (the Administrative Agent), which Amendment No. 3 is dated as of June 21, 2017 and is by and among the Borrower, the financial institutions listed on the signature pages thereof and the Administrative Agent (the Amendment). Capitalized terms used in this Consent and Reaffirmation and not defined herein shall have the meanings given to them in the Credit Agreement. Without in any way establishing a course of dealing by the Administrative Agent or any Lender, each of the undersigned consents to the Amendment and reaffirms the terms and conditions of the Subsidiary Guaranty and any other Loan Document executed by it and acknowledges and agrees that the Subsidiary Guaranty and each and every such Loan Document executed by the undersigned in connection with the Credit Agreement remains in full force and effect and is hereby reaffirmed, ratified and confirmed. All references to the Credit Agreement contained in the above-referenced documents shall be a reference to the Credit Agreement as so modified by the Amendment and as the same may from time to time hereafter be amended, modified or restated.
Dated: June 21, 2017
[Signature Page Follows]
IN WITNESS WHEREOF, this Consent and Reaffirmation has been duly executed as of the day and year above written.
| MICROCHIP TECHNOLOGY INCORPORATED | SILICON STORAGE TECHNOLOGY, INC. | |||||||
| By: | /s/ J. Eric Bjornholt |
By: | /s/ J. Eric Bjornholt |
|||||
| Name: | J. Eric Bjornholt | Name: | J. Eric Bjornholt | |||||
| Title: | Vice President and Chief Financial Officer | Title: | Chief Financial Officer | |||||
| MICROCHIP TECHNOLOGY LLC | SILICON STORAGE TECHNOLOGY LLC | |||||||
| By: Microchip Technology Incorporated, | By: Silicon Storage Technology, Inc., | |||||||
| its sole member | its sole member | |||||||
| By: | /s/ J. Eric Bjornholt |
By: | /s/ J. Eric Bjornholt |
|||||
| Name: | J. Eric Bjornholt | Name: | J. Eric Bjornholt | |||||
| Title: | Vice President and Chief Financial Officer | Title: | Chief Financial Officer | |||||
| ATMEL HOLDINGS, INC. | ATMEL CORPORATION | |||||||
| By: | /s/ J. Eric Bjornholt |
By: | /s/ J. Eric Bjornholt |
|||||
| Name: | J. Eric Bjornholt | Name: | J. Eric Bjornholt | |||||
| Title: | Vice President and Chief Financial Officer | Title: | Vice President and Chief Financial Officer | |||||
| MICROCHIP HOLDING CORPORATION | ||||||||
| By: | /s/ J. Eric Bjornholt |
|||||||
| Name: | J. Eric Bjornholt | |||||||
| Title: | President | |||||||
Signature Page to Consent and Reaffirmation to Amendment No. 3 to
Amended and Restated Credit Agreement dated as of June 27, 2013,
as amended and restated as of February 4, 2015
Microchip Technology Incorporated