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EXHIBIT 4.22
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as
of March 21, 1997, is entered into by and among CYPRESS SEMICONDUCTOR
CORPORATION, a Delaware corporation (the "Company"), FLEET NATIONAL BANK, as
Co-Agent, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as agent for
itself and the Banks (the "Agent") and as letter of credit issuing bank, and
the several financial institutions party to the Credit Agreement (collectively,
the "Banks").
RECITALS
A. The Company, Banks, and Agent are parties to a Credit Agreement
dated as of July 24, 1996, as amended by a First Amendment to Credit Agreement
dated as of October 10, 1996, effective as of September 30, 1996 (as so
amended, the "Credit Agreement") pursuant to which the Agent and the Banks have
extended certain credit facilities to the Company.
B. The Company has requested that the Banks agree to certain
amendments of the Credit Agreement.
C. The Banks are 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) The definition of Applicable Margin in Section 1.01
shall be amended and restated in its entirety to read as follows:
"'Applicable Margin' means
(i) with respect to Base Rate Loans, 0%; and
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(ii) with respect to Offshore Rate Loans, as follows:
(A) 0.45%, if the Facility Utilization is less
than 25%,
(B) 0.525%, if the Facility Utilization is
greater than or equal to 25% and less
than 50%,
(C) 0.60%, if the Facility Utilization is greater
than or equal to 50% and less than 75%, or
(D) 0.70%, if the Facility Utilization is
greater than or equal to 75%;
provided, however, that if at any time the Company's Total
Debt/Capitalization Ratio as reported in the Company's most recent
Compliance Certificate delivered to the Agent and the Banks as
provided in Section 7.02 exceeds 0.35 to 1.00, then 0.10% shall be
added to the Applicable Margin with respect to Offshore Rate Loans,
effective 90 days after the last day of the fiscal year or 45 days
after the last day of the fiscal quarter, as the case may be, to which
such Compliance Certificate relates. For the period from the Closing
Date until the date on which a change in the Total Debt/Capitalization
Ratio becomes effective as provided in the preceding proviso, the
Total Debt/Capitalization Ratio shall be as reported in the Company's
Compliance Certificate delivered to the Agent and the Banks on the
Closing Date."
(b) The first sentence of Subsection 3.08(a) shall be
amended and restated in its entirety to read as follows:
"(a) The Company shall pay to the Agent for the
account of each of the Banks a letter of credit fee with respect to
the Letters of Credit at a rate per annum equal to:
(i) 0.45%, if the Facility Utilization is
less than 25%;
(ii) 0.525%, if the Facility Utilization is
greater than or equal to 25% and less than 50%;
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(iii) 0.60%, if the Facility Utilization is
greater than or equal to 50% and less than 75%; or
(iv) 0.70%, if the Facility Utilization is
greater than or equal to 75%,
of the average daily maximum amount available to be drawn under
the outstanding Letters of Credit, computed on a 360-day
basis in arrears on the last Business Day of each calendar
quarter based upon Letters of Credit oustanding for that
quarter as calculated by the Agent."
(c) Section 7.12 of the Credit Agreement shall
be amended by deleting the period and inserting the following at the end
thereof:
"; including, for the avoidance of doubt, for the redemption
of the outstanding Convertible Subordinated Notes to the
extent permitted by Section 8.13."
(d) Subsection 7.13(d) of the Credit Agreement shall be
amended and restated in its entirety to read as follows:
"(d) (i) at the end of each fiscal quarter after the
Closing Date through and including the quarter ending December
31, 1996, on a rolling four-quarter basis, a ratio of (x)
earnings before interest income and interest expense and taxes
plus lease expense, to (y) interest expense plus lease expense
plus current maturities of long term debt plus outstanding
Loans and issued and outstanding Letters of Credit hereunder,
of not less than 1.25 to 1.00; and (ii) at the end of each
fiscal quarter after the Closing Date commencing with the
fiscal quarter ending March 31, 1997, on a rolling
four-quarter basis, a ratio of (x) earnings before interest
income and interest expense and taxes plus lease expense, to
(y) interest expense plus lease expense plus current
maturities of long term debt, of not less than 1.25 to 1.00."
(e) Section 8.01 of the Credit Agreement shall be
amended as follows:
(i) The word "and" at the end of Subsection (l)
shall be deleted, the periods at the end of Subsections (m)
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and (n) shall be deleted and replaced with semi-colons, and the
period at the end of Subsection (o) shall be deleted and replaced
with "; and".
(ii) A new Subsection (p) shall be added which reads
as follows:
"(p) Liens on equipment owned by the Company
or one or more of its Subsidiaries given solely to secure new
financing pursuant to which the present market value of such
equipment plus the present market value of equipment disposed
of in sale and leaseback transactions permitted by Subsection
8.02(h) does not exceed $100,000,000; provided that the amount
of debt secured thereby does not exceed the value of the
equipment subject to the Liens permitted hereby."
(f) Section 8.02 of the Credit Agreement shall be
amended as follows:
(i) The word "and" at the end of Subsection (f)
shall be deleted, and the period at the end of Subsection (g) shall be
deleted and replaced with "; and".
(ii) A new Subsection (h) shall be added which reads
as follows:
"(h) dispositions of equipment made as a
part of sale and leaseback transactions conducted by the
Company or one or more of its subsidiaries pursuant to which
the present market value of such equipment plus the present
market value of equipment subjected to Liens permitted by
Subsection 8.01(p) does not exceed $100,000,000."
(g) Section 8.05 of the Credit Agreement shall be
amended as follows:
(i) The word "and" at the end of
Subsection (c) shall be deleted, and the period at the end of
Subsection (d) shall be deleted and replaced with "; and"".
(ii) A new Subsection (e) shall be added
which reads as follows:
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"Indebtedness secured by the Permitted Liens which are set
forth in Subsections 8.01 (i), (j), (n), and (p)."
(h) Section 8.13 of the Credit Agreement shall be
amended by deleting the period and adding the following proviso at the end of
the first sentence thereof:
"; and provided further that on or before March 31, 1997, the
Company shall be permitted to redeem for cash the outstanding
Convertible Subordinated Notes for a redemption price of up to
$100,000,000 for which a call was issued on February 24,
1997."
(i) Exhibit C to the Credit Agreement shall be amended
at Schedule 1 thereof by amending and restating such Schedule 1 in its entirety
to read as set forth in Schedule 1 attached hereto.
3. Representations and Warranties. The Company hereby
represents and warrants to the Agent and the Banks 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.
All representations and warranties of the Company contained
in the Credit Agreement are in all material respects 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 Agent and the Banks or any other Person.
4. Effective Date. This Amendment will become effective as of
March 21, 1997 (the "Effective Date"), provided that (a) the
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Agent has received from the Company and the Majority Banks a duly executed
original (or, if elected by the Agent, an executed facsimile copy) of this
Amendment, (b) the Agent has received payment of an amendment fee equal to
0.10% of the aggregate Commitments for the benefit of the Banks each in
accordance with its Pro Rata Share, and (c) BofA shall have received the
Arrangement Fee to be paid pursuant to that certain Fee Letter dated March 19,
1997.
5. Reservation of Rights. The Company acknowledges and
agrees that the execution and delivery by the Agent and the Banks of this
Amendment shall not be deemed to create a course of dealing or otherwise
obligate the Agent or the Banks 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 Agent of a facsimile transmitted document purportedly
bearing the signature of a Bank or the Company shall bind such Bank or the
Company, respectively, with the same force and effect as the delivery of a hard
copy
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original. Any failure by the Agent 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 Agent.
(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 11.01 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
Agent within 30 Business Days after demand, for all reasonable costs and
expenses (including allocated costs of in-house counsel) incurred in connection
with the development, preparation, negotiation, execution and delivery of this
Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment as of the date first above written.
CYPRESS SEMICONDUCTOR CORPORATION
By: __________________________
Title: _______________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Agent
By: _________________________
Title: ______________________
FLEET NATIONAL BANK, as Co-Agent
By: _________________________
Title: ______________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Bank and as Issuing Bank
By: _________________________
Title: ______________________
FLEET NATIONAL BANK,
as a Bank
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By: _________________________
Title: ______________________
BANQUE NATIONALE DE PARIS
By: _________________________
Title: ______________________
By: _________________________
Title: ______________________
THE SUMITOMO TRUST & BANKING
CO., LTD., LOS ANGELES AGENCY
By: _________________________
Title: ______________________
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