CONFORMED COPY
AMENDMENT NO. 1 AND WAIVER dated as of
January 28, 2000 (this "Amendment"), to the CREDIT
AGREEMENT dated as of August 13, 1999 (the "Credit
Agreement"), among INTERSIL CORPORATION, a Delaware
corporation (the "Borrower"), INTERSIL HOLDING
CORPORATION, a Delaware corporation ("Holdings"), the
Lenders (as defined in Article I of the Credit
Agreement), CREDIT SUISSE FIRST BOSTON, a bank
organized under the laws of Switzerland, acting
through its New York branch, as swingline lender (in
such capacity, the "Swingline Lender"), as an Issuing
Bank (as defined in Article I of the Credit
Agreement), as administrative agent (in such
capacity, the "Administrative Agent") and as
collateral agent (in such capacity, the "Collateral
Agent") for the Lenders, XXXXXXX XXXXX XXXXXX INC.,
as syndication agent (in such capacity, the
"Syndication Agent"), and XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as documentation agent (in such
capacity, the "Documentation Agent").
A. Pursuant to the Credit Agreement, the Lenders and the Issuing Bank
have extended, and have agreed to extend, credit to the Borrower.
B. Holdings and the Borrower have requested that the Required Lenders
(i) grant a limited waiver of Section 6.12(ii) of the Credit Agreement to allow
Holdings, among other things, to prepay the Holdings Subordinated Notes and the
Seller Subordinated Notes with part of the Net Cash Proceeds (the "IPO
Proceeds") from the initial Public Equity Offering by Holdings of its common
stock (the "IPO"), (ii) grant a limited waiver of Section 6.12(iii) of the
Credit Agreement to allow Holdings to repurchase up to $70,000,000 aggregate
principal amount of its Senior Subordinated Notes with part of the IPO Proceeds
and (iii) agree to amend the Credit Agreement to allow, among other things, the
Borrower to request from time to time that the Total Revolving Credit Commitment
be increased to $150,000,000.
C. The Required Lenders are willing to grant such limited waivers and
to amend the Credit Agreement pursuant to the terms and subject to the
conditions set forth herein.
D. Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Limited Waiver of Section 6.12. The Required Lenders hereby
waive compliance by Holdings with the provisions of clauses (ii) and (iii)
Section 6.12 of the Credit Agreement to the extent (but only to the extent)
necessary to allow Holdings, so long as no Default or Event of Default shall
have occurred and be continuing at the time thereof or after giving effect
thereto, to repurchase, redeem or otherwise prepay with a portion of the IPO
Proceeds, (a) all of its outstanding Holdings Subordinated Notes and Seller
Subordinated Notes in an aggregate original principal amount of $120,000,000,
plus accrued interest, if any, to the date of such repurchase, redemption or
prepayment,
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and (b) up to $70,000,000 aggregate principal amount of its Senior
Subordinated Notes, plus prepayment premiums; provided that the balance of the
IPO Proceeds shall be used to prepay Term Loans pursuant to Section 2.13(c) of
the Credit Agreement.
SECTION 2. Addition of Section 2.24. The following Section 2.24 is
hereby inserted following Section 2.23 of the Credit Agreement:
"SECTION 2.24. Increase in Revolving Credit Commitments. (a)
The Borrower may, by written notice to the Administrative Agent from
time to time, request that the Total Revolving Credit Commitment be
increased to an amount not to exceed $150,000,000 minus any amount by
which Revolving Credit Commitments shall have been reduced pursuant to
Section 2.09(b) (the aggregate amount of such increase being referred
to herein as the "Incremental Revolving Facility Amount"). Upon the
approval of such request by the Administrative Agent, the
Administrative Agent shall deliver a copy thereof to each Revolving
Credit Lender. Such notice shall set forth the amount of the requested
increase in the Total Revolving Credit Commitment (which shall be in
minimum increments of $5,000,000 and a minimum amount of $20,000,000 or
equal to the remaining Incremental Revolving Facility Amount) and the
date on which such increase is requested to become effective (which
shall be not less than 10 Business Days nor more than 60 days after the
date of such notice), and shall offer each Revolving Credit Lender the
opportunity to increase its Revolving Credit Commitment by its Pro Rata
Percentage of the proposed increased amount. Each Revolving Credit
Lender shall, by notice to the Borrower and the Administrative Agent
given not more than 10 days after the date of the Administrative
Agent's notice, either agree to increase its Revolving Credit
Commitment by all or a portion of the offered amount (each Revolving
Credit Lender so agreeing being an "Increasing Revolving Lender") or
decline to increase its Revolving Credit Commitment (and any Revolving
Credit Lender that does not deliver such a notice within such period of
10 days shall be deemed to have declined to increase its Revolving
Credit Commitment) (each Revolving Credit Lender so declining or being
deemed to have declined being a "Non-Increasing Revolving Lender"). In
the event that, on the 10th day after the Administrative Agent shall
have delivered a notice pursuant to the second sentence of this
paragraph, the Increasing Revolving Credit Lenders shall have agreed
pursuant to the preceding sentence to increase their Revolving Credit
Commitments by an aggregate amount less than the increase in the Total
Revolving Credit Commitment requested by the Borrower, the Borrower may
arrange for one or more banks or other financial institutions (any such
bank or other financial institution referred to in this clause (a)
being called an "Augmenting Revolving Lender"), which may include any
Revolving Credit Lender, to extend Revolving Credit Commitments or
increase their existing Revolving Credit Commitments in an aggregate
amount equal to the unsubscribed amount; provided that each Augmenting
Revolving Lender, if not already a Revolving Credit Lender hereunder,
shall be subject to the approval of the Administrative Agent and the
Issuing Bank (which approvals shall not be unreasonably withheld) and
the Borrower and each Augmenting Revolving Lender shall execute all
such documentation as the Administrative Agent shall reasonably specify
to evidence its Revolving Credit Commitment and/or its status as a
Revolving Credit Lender hereunder. Any increase in the Total Revolving
Credit Commitment may be made in an amount which is less than the
increase requested by the Borrower if the Borrower is unable to arrange
for, or chooses not to arrange for, Augmenting Revolving Lenders.
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(b) On the effective date (the "Increase Effective Date") of
any increase in the Total Revolving Credit Commitment pursuant to this
Section 2.24 (the "Commitment Increase"), (i) the aggregate principal
amount of the Revolving Loans outstanding (the "Initial Loans")
immediately prior to giving effect to the Commitment Increase on the
Increase Effective Date shall be deemed to be paid, (ii) the Borrower
shall pay each Increasing Revolving Lender and each Non- Increasing
Revolving Lender any and all accrued but unpaid interest on the Initial
Loans, (iii) each Increasing Revolving Lender and each Augmenting
Revolving Lender that shall have been a Revolving Credit Lender prior
to the Commitment Increase shall pay to the Administrative Agent in
same day funds an amount equal to the difference between (A) the
product of (1) such Revolving Credit Lender's Pro Rata Percentage
(calculated after giving effect to the Commitment Increase) multiplied
by (2) the amount of the Subsequent Revolving Borrowings (as
hereinafter defined) and (B) the product of (1) such Revolving Credit
Lender's Pro Rata Percentage (calculated without giving effect to the
Commitment Increase) multiplied by (2) the amount of the Initial Loans,
(iv) each Augmenting Revolving Lender that shall not have been a
Revolving Credit Lender prior to the Commitment Increase shall pay to
Administrative Agent in same day funds an amount equal to the product
of (1) such Augmenting Revolving Lender's Pro Rata Percentage
(calculated after giving effect to the Commitment Increase) multiplied
by (2) the amount of the Subsequent Revolving Borrowings, (v) after the
Administrative Agent receives the funds specified in clauses (ii) and
(iii) above, the Administrative Agent shall pay to each Non-Increasing
Revolving Lender the portion of such funds that is equal to the
difference between (A) the product of (1) such Non-Increasing Revolving
Lender's Pro Rata Percentage (calculated without giving effect to the
Commitment Increase) multiplied by (2) the amount of the Initial Loans,
and (B) the product of (1) such Non-Increasing Revolving Lender's Pro
Rata Percentage (calculated after giving effect to the Commitment
Increase) multiplied by (2) the amount of the Subsequent Revolving
Borrowings, (vi) after the effectiveness of the Commitment Increase,
the Borrower shall be deemed to have made new Revolving Credit
Borrowings (the "Subsequent Revolving Borrowings") in an aggregate
principal amount equal to the aggregate principal amount of the Initial
Loans and of the Types and for the Interest Periods specified in a
Borrowing Request delivered to the Administrative Agent in accordance
with Section 2.03 and (vii) each Non-Increasing Revolving Lender, each
Increasing Revolving Lender and each Augmenting Revolving Lender shall
be deemed to hold its Pro Rata Percentage of each Subsequent Revolving
Borrowing (each calculated after giving effect to the Commitment
Increase). The deemed payments made pursuant to clause (i) above in
respect of each Eurodollar Loan shall be subject to indemnification by
the Borrower pursuant to the provisions of Section 2.16 if the Increase
Effective Date occurs other than on the last day of the Interest Period
relating thereto.
(c) Notwithstanding the foregoing, no increase in the Total
Revolving Credit Commitment (or in the Revolving Credit Commitment of
any Revolving Credit Lender) or addition of a new Revolving Credit
Lender shall become effective under this Section 2.24 unless, (i) on
the date of such increase, the conditions set forth in paragraphs (b)
and (c) of Section 4.01 shall be satisfied and the Administrative Agent
shall have received a certificate to that effect dated such
date and executed by a Financial Officer of the Borrower, and (ii) the
Administrative Agent shall have received (with sufficient copies for
each of the Revolving Credit Lenders) documents consistent with those
delivered on the
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Effective Date under clauses (a) and (c) of Section 4.02 as to the
corporate power and authority of the Borrower to borrow hereunder after
giving effect to such increase."
SECTION 3. Amendment to Section 1.01. The definition of "Permitted
Acquisition" in Section 1.01 of the Credit Agreement is hereby amended by
deleting the amount "$25,000,000" in clause (b)(iii) of the proviso and
substituting therefor the amount "$50,000,000".
SECTION 4. Amendment to Section 2.13(c). Section 2.13(c) of the Credit
Agreement is hereby amended by deleting the words "Senior Subordinated Notes" in
the second proviso thereof and substituting therefor the words "Holdings
Subordinated Notes".
SECTION 5. Amendment to Section 5.04. (a) Section 5.04(c) of the Credit
Agreement is hereby amended by deleting sub-paragraph (c) in it entirety and
substituting therefor the phrase "[Intentionally omitted.]".
(b) Section 5.04(d)(i) of the Credit Agreement is hereby amended by
deleting the phrase "(a), (b) or (c)" and substituting therefor the phrase "(a)
or (b)".
SECTION 6. Amendment to Section 6.12(ii). Section 6.12(ii) of the
Credit Agreement is hereby amended by deleting the words "Senior Subordinated
Notes" in the parenthetical phrase therein and substituting therefor the words
"Holdings Subordinated Notes".
SECTION 7. Amendment to Section 6.12(iii). Section 6.12(iii) of the
Credit Agreement is hereby amended by adding at the end thereof, immediately
prior to the comma, the following clause:
"; provided, however, that Holdings may make any such payment
or prepayment on or redemption of such Senior Subordinated
Notes in an aggregate principal amount not to exceed
$25,000,000 if (A) after giving effect to such payment,
prepayment or redemption, there is at least $15,000,000 of
unused and available Revolving Credit Commitments and (B)
Holdings shall be in Pro Forma Compliance"
SECTION 8. Representations and Warranties. To induce the other parties
hereto to enter into this Amendment, the Borrower and Holdings represent and
warrant to each of the Lenders, the Administrative Agent, the Issuing Bank, the
Collateral Agent and the Documentation Agent that, after giving effect to this
Amendment, (a) the representations and warranties set forth in Article III of
the Credit Agreement are true and correct in all material respects on and as of
the date hereof, except to the extent such representations and warranties
expressly relate to an earlier date, and (b) no Default or Event of Default has
occurred and is continuing.
SECTION 9. Effectiveness. This Amendment shall become effective as of
the date first written above on the date on which the IPO is consummated, which
shall be evidenced by a certificate of an officer of Holdings, if prior to such
time the Administrative Agent shall have received counterparts of this Amendment
that, when taken together, bear the signatures of the Borrower, the Guarantors
and the Required Lenders.
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SECTION 10. Effect of Amendment. Except as expressly set forth herein,
this Amendment shall not by implication or otherwise limit, impair, constitute a
waiver of, or otherwise affect the rights and remedies of the Lenders, the
Issuing Bank, the Collateral Agent, the Administrative Agent or the
Documentation Agent under the Credit Agreement or any other Loan Document, and
shall not alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document, all of which are ratified and affirmed in
all respects and shall continue in full force and effect. Nothing herein shall
be deemed to entitle any Loan Party to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any other Loan
Document in similar or different circumstances. This Amendment shall apply and
be effective only with respect to the provisions of the Credit Agreement
specifically referred to herein. After the date hereof, any reference to the
Credit Agreement shall mean the Credit Agreement, as modified hereby. This
Amendment shall constitute a "Loan Document" for all purposes of the Credit
Agreement and the other Loan Documents.
SECTION 11. Counterparts. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same contract.
Delivery of an executed counterpart of a signature page of this Amendment by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 12. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 13. Headings. The headings of this Amendment are for purposes
of reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 14. Expenses. The Borrower agrees to reimburse the
Administrative Agent for all out-of-pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of Cravath,
Swaine & Xxxxx, counsel for the Administrative Agent.
SECTION 15. Acknowledgment of Guarantors. Each of the Guarantors hereto
hereby acknowledges receipt and notice of, and consents to the terms of, this
Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their duly authorized officers, all as of the
date and year first above written.
INTERSIL CORPORATION,
by /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
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INTERSIL HOLDING CORPORATION,
by /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
INTERSIL (OH), LLC,
by /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
INTERSIL (PA), LLC,
by /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
INTERSIL (FL), LLC,
by /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
CHOICE-INTERSIL MICROSYSTEMS, INC.,
by /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
CREDIT SUISSE FIRST BOSTON,
individually, and as Administrative
Agent, Collateral Agent, Swingline
Lender and an Issuing Bank,
by /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
by /s/ Xxxxxx Xxxx
------------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
7
XXXXXXX XXXXX BARNEY INC.,
individually, and as Syndication
Agent,
by
------------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, individually, and as
Documentation Agent,
by
------------------------------------
Name:
Title:
BANKBOSTON N.A.,
by /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
SCOTIABANC INC.,
by /s/ X.X. Xxxxx
------------------------------------
Name: X.X. Xxxxx
Title: Managing Director
CYPRESSTREE SENIOR FLOATING RATE
FUND
By: CypressTree Investment
Management Company, Inc.,
as Portfolio Manager,
by /s/ Xxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Principal
CYPRESSTREE INVESTMENT PARTNERS I,
LTD.
By: CypressTree Investment
Management Company, Inc., as
Portfolio Manager,
8
by /s/ Xxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Principal
XXXXX XXXXX INSTITUTIONAL SENIOR
LOAN FUND
By: Xxxxx Xxxxx Management, as
Investment Advisor,
by /s/ Xxxxx X. Page
------------------------------------
Name: Xxxxx X. Page
Title: Vice President
GALAXY CLO 1999-1, LTD.
By: SAI Investment Adviser, Inc.,
its Collateral Manager,
by /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Authorized Signatory
IBM CREDIT CORPORATION,
by /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager of Credit
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management,
L.P., as Investment Advisor,
by /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND II, INC.,
by /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
9
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.,
by /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
NORTH AMERICAN SENIOR FLOATING
RATE FUND,
By: CypressTree Investment
Management Company, Inc., as
Portfolio Manager,
by /s/ Xxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Principal
PPM SPYGLASS FUNDING TRUST,
by /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Agent
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor,
by /s/ Xxxxx X. Page
------------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management, as
Investment Advisor,
by /s/ Xxxxx X. Page
------------------------------------
Name: Xxxxx X. Page
Title: Vice President
SRF TRADING, INC.,
by /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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XXXXXXXXX CLO LTD.
By: Xxxxxxxxx Capital Partners
LLC, as Investment
Manager to Various Funds,
by /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Partner
XXXXX XXX & FARNHAM CLO 1 LTD.
By: Xxxxx Xxx & Xxxxxxx
Incorporated, as Portfolio
Manager,
by /s/ Xxxxx X. Good
------------------------------------
Name: Xxxxx X. Good
Title: Vice President & Portfolio
Manager
XXXXX XXX FLOATING RATE LIMITED
LIABILITY COMPANY,
by /s/ Xxxxx X. Good
------------------------------------
Name: Xxxxx X. Good
Title: Vice President, Xxxxx Xxx &
Farnham Incorporated, as
Advisor to the Xxxxx Xxx
Floating Rate Limited
Liability Company
SUNTRUST BANK,
by /s/ W. Xxxxx Xxxxxx
------------------------------------
Name: W. Xxxxx Xxxxxx
Title: Vice President
TRANSAMERICA COMMERCIAL FINANCE
CORP.,
by /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
