ELEVENTH AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.24
EXECUTION
VERSION
ELEVENTH AMENDMENT TO CREDIT
AGREEMENT
THIS ELEVENTH AMENDMENT TO CREDIT
AGREEMENT (this “Amendment”), dated as
of October 26, 2009, is entered into by and between NATIONAL SEMICONDUCTOR
CORPORATION, a Delaware corporation (the “Company”), and BANK OF AMERICA, N.A. (the
“Bank”).
RECITALS
A. The
Company and the Bank are parties to a Credit Agreement (Multicurrency), dated as
of October 30, 2000, as amended by that certain First Amendment to Credit
Agreement dated as of October 29, 2001, that certain Second Amendment to Credit
Agreement dated as of October 28, 2002, that certain Third Amendment to Credit
Agreement dated as of October 14, 2003, that certain Fourth Amendment to Credit
Agreement dated as of March 19, 2004, that certain Fifth Amendment to Credit
Agreement dated as of October 20, 2004, that certain Sixth Amendment to Credit
Agreement dated as of October 24, 2005, that certain Seventh Amendment to Credit
Agreement dated as of October 24, 2006, that certain Eighth Amendment to Credit
Agreement dated as of June 26, 2007, that certain Ninth Amendment to Credit
Agreement dated as of October 10, 2007 and that certain Tenth Amendment to
Credit Agreement dated as of October 2, 2008 (as so amended, the “Credit Agreement”),
pursuant to which the Bank has extended certain credit facilities to the Company
and the Guaranteed Subsidiaries.
B. The
Company has requested that the Bank agree to certain amendments of the Credit
Agreement.
C. The Bank
is 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
herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
2. Amendments to Credit
Agreement.
(a) Section 1.01 of the
Credit Agreement shall be amended at the following definitions by amending and
restating each such definition to read in its entirety as follows:
“Applicable Margin”
means (i) with respect to Base Rate Loans, 1.50% per annum, and (ii) with
respect to Offshore Rate Loans, 2.50% per annum.
“Revolving Termination
Date” means October 26, 2010, or if such date is not a Business Day, the
last Business Day prior to such date.
(b) Section 2.03(i) of
the Credit Agreement shall be amended by deleting “1.25%” and inserting in its
place “2.50%”.
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SF:264414.4
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(c) Section 2.09(a) of
the Credit Agreement shall be amended to read as follows:
(a) Facility
Fee. The Company shall further pay to the Bank an irrevocable
facility fee (i) at the rate of 0.375% per annum of the amount of the
Commitment, due and payable in arrears in quarterly installments on the last
Business Day of each calendar quarter commencing on December 31, 2000 and ending
on October 26, 2009 and (ii) at the rate of 0.50% per annum of the amount of the
Commitment, due and payable in arrears in quarterly installments on the last
Business Day of each calendar quarter commencing on October 27, 2009 provided
that the Bank hereby waives collection of such facility fee to the extent
accruing from October 27, 2009 through October 26, 2010. Such fee
shall be deemed earned on each day the Commitment is outstanding (regardless of
utilization thereof) and shall accrue at all times from and after the Closing
Date, except as otherwise provided in this Section, including at any time during
which one or more conditions in Article IV are not
met. No portion of any amount so paid shall be subject to return or refund for
any reason.
(d) Section 5.01(g) of
the Credit Agreement shall be amended by deleting the phrase “May 25, 2008” and
inserting in its place “May 31, 2009”.
(e) Section 5.01(n) of
the Credit Agreement shall be amended (i) by deleting the phrase “May 25, 2008”
each time it appears and inserting in its place “May 31, 2009”, and
(ii) by deleting the phrase “August 24, 2008” and inserting in its place
“August 30, 2009”.
(f) Section 5.01(o) of
the Credit Agreement shall be amended by deleting the phrase “August 24, 2008”,
and inserting in its place “August 30, 2009”.
(g) The
Credit Agreement shall be further amended by deleting Exhibit B thereof and
replacing it with the Exhibit B attached
hereto as Annex
I.
3. Representations and
Warranties. The Company hereby represents and warrants to the
Bank 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, without defense,
counterclaim or offset.
(c) All
representations and warranties of the Company contained in the Credit Agreement
are true and correct.
(d) The
Company is entering into this Amendment on the basis of its own investigation
and for its own reasons, without reliance upon the Bank or any other
Person.
4. Effective
Date. This Amendment will become effective on and as of the
date (the “Effective
Date”) that each of the following conditions precedent is
satisfied:
(a) The Bank
has received from the Company a duly executed original (or, if elected by the
Bank, an executed facsimile copy) of this Amendment.
(b) The Bank
has received from the Company a certificate of the Secretary or Assistant
Secretary of the Company certifying the names and true signatures of the
officers of the Company authorized to execute and deliver this Amendment and
attaching:
(i) (A) the
articles or certificate of incorporation of the Company as in effect on the date
hereof, certified by the Secretary or Assistant Secretary of the Company as
being in full force and effect on the date hereof and (B) the bylaws of the
Company as in effect on the date hereof, certified by the Secretary or Assistant
Secretary of the Company as being in full force and effect on the date hereof;
and
(ii) a copy of
resolutions passed by the board of directors of the Company, certified by the
Secretary or Assistant Secretary of the Company as being in full force and
effect on the date hereof, authorizing the execution, delivery and performance
of this Amendment;
(c) The Bank
has received from the Company a good standing certificate for the Company from
the Secretary of State of its state of incorporation as of a recent
date
(d) All
representations and warranties contained herein are true and correct as of the
Effective Date.
(e) As of the
Effective Date, no Default or Event of Default has occurred and is
existing.
(f) The Bank
has received from the Company such other approvals, opinions or documents as the
Bank may reasonably request.
5. Reservation of
Rights. The Company acknowledges and agrees that the execution
and delivery by the Bank of this Amendment shall not be deemed to create a
course of dealing or otherwise obligate the Bank to execute similar amendments
under the same or similar circumstances in the future.
6. Miscellaneous.
(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 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 Bank of a facsimile
transmitted document purportedly bearing the signature of the Company shall bind
the Company with the same force and effect as the delivery of a hard copy
original. Any failure by the Bank 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 Bank, and the Bank is hereby authorized
to make sufficient photocopies thereof to assemble complete counterparty
documents.
(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 8.03 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 Bank, 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, including without limitation appraisal, audit,
search and filing fees incurred in connection therewith.
(h) The
Company acknowledges it has paid the Bank a facility fee at a rate in excess of
the rate specified herein, and in consideration of the Bank’s waiver of facility
fee at Section
2(c) hereof, hereby forever waives and relinquishes any and all claims
and causes of action against the Bank on account of such
over-payment.
[Remainder
of this page is intentionally left blank. Signature page to
follow.]
IN WITNESS WHEREOF, the
parties hereto have executed and delivered this Amendment as of the date first
above written.
NATIONAL
SEMICONDUCTOR CORPORATION
By: /s/ Xxxxx
Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Corporate Controller
By: /s/ Xxxxxx X.
XxXxxx
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Name:
Xxxxxx X. XxXxxx
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Title: Corporate
Controller
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BANK
OF AMERICA, N.A.
By: /s/ Xxxxxxxxx
Xxxxxxx
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Name:
Xxxxxxxxx Xxxxxxx
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Title: Vice
President
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Signature
Page to
Eleventh
Amendment to Credit Agreement
ANNEX
I
EXHIBIT
B
to
the Credit Agreement
FORM
OF COMPLIANCE CERTIFICATE
Bank of
America, N.A.
000
Xxxxxxxxxx Xxxxxx
Xxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxxxx
Xxxxxxx
Vice
President
Re: National Semiconductor
Corporation
Ladies
and Gentlemen:
This
Compliance Certificate is made and delivered pursuant to the Credit Agreement
(Multicurrency) dated as of October 30, 2000 (as amended, modified, renewed or
extended from time to time, the "Credit Agreement") between National
Semiconductor Corporation (the "Company") and Bank of America, N.A. (the
"Bank"), and reference is made thereto for full particulars of the matters
described therein. All capitalized terms used in this Compliance
Certificate and not otherwise defined herein shall have the meanings assigned to
them in the Credit Agreement. This Compliance Certificate relates to
the accounting period ending _____________, ______.
I hereby
certify as of the date hereof that I am the [treasurer] of the Company, and
that, as such, I am authorized to execute and deliver this Certificate to the
Bank on the behalf of the Borrower and its consolidated Subsidiaries, and
that:
[Use
the following paragraph if this Certificate is delivered in connection with the
quarterly
financial
statements required by Section 6.01(a)(i) of the Credit Agreement.]
1. Attached
hereto are true and correct copies of the consolidated balance sheet of the
Company and its Subsidiaries as of the end of the fiscal quarter ended
__________ and the related consolidated statements of income, shareholders’
equity and cash flows of the Company and its Subsidiaries for such quarter and
the portion of the fiscal year through the end of such quarter, which are
complete and accurate in all material respects and fairly present the financial
condition of the Company and the Subsidiaries as at such date and the results of
operations of the Company and its Subsidiaries for the period ended on such date
and have been prepared in accordance with GAAP consistently applied, subject to
changes resulting from normal year-end audit adjustments and except for the
absence of notes.
or
[Use
the following paragraph if this Certificate is delivered in connection with the
annual
financial
statements required by Section 6.01(a)(ii) of the Credit
Agreement.]
B-
1. Attached
hereto are true and correct copies of the consolidated balance sheet of the
Company and its Subsidiaries as of the end of the fiscal year ended ___________
and the related consolidated statements of income, shareholders’ equity and cash
flows of the Company and its Subsidiaries for such fiscal year, prepared in
accordance with GAAP consistently applied, all in reasonable detail and setting
forth in comparative form the figures for the previous fiscal year, accompanied
by the report of __________, which report is not qualified.
2. I
have reviewed the terms of the Credit Agreement and I have made, or caused to be
made under my supervision, a detailed review of the transactions and conditions
of the Company and its Subsidiaries during the accounting period covered by the
attached financial statements.
3. The
information set forth on Schedule 1 hereto (and any additional schedules hereto
setting forth further supporting detail) is true, accurate and complete as of
the end of such accounting period.
4. The
Company and its Subsidiaries, during such period, have observed, performed or
satisfied all of the covenants and other agreements, and satisfied every
condition in the Credit Agreement to be observed, performed or satisfied by the
Company and its Subsidiaries.
5. The
representations and warranties of the Company contained in Article V of the
Credit Agreement are true and correct as though made on and as of the date
hereof (except to the extent such representations and warranties relate to an
earlier date, in which case they shall be true and correct as of such
date).
I hereby
further certify that (i) as of the date hereof no Default or Event of Default
has occurred and is continuing, and (ii) on and as of the date hereof, there has
occurred no Material Adverse Effect since May 31, 2009, except as may be set
forth in a separate attachment hereto describing in detail the nature of each
condition or event constituting an exception to the foregoing statements, the
period during which it has existed and the action which the Company is taking or
proposes to take with respect to each such condition or event.
IN
WITNESS WHEREOF, the undersigned officer has signed this Compliance Certificate
this ______ day of ___________, ____.
[Treasurer]
B-
SCHEDULE
1
TO
COMPLIANCE CERTIFICATE
Dated
,
For the
Fiscal Quarter ended ,
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Actual
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Required
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2.Section 6.02(b) Minimum Quick
Ratio.
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A.Consolidated
Quick Assets
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$__________
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B.Consolidated
Current Liabilities
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$__________
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Quick
Ratio (ratio of A to B)
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___
to 1.0
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For
fiscal quarters ending prior to November 27, 2005, not less than 1.00 to
1.00
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For
fiscal quarters ending on or after the November 27, 2005, not less than
1.25 to 1.00
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S-
