Amendment No. 2 dated August 24, 2017 by and among the parties to the Amended and Restated Credit Agreement dated October 26, 2016 (Exhibit 10.85 above)
EXHIBIT 10.80.2
Execution Version
AMENDMENT NO. 2 to AMENDED AND RESTATED Credit Agreement
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT dated as of August 24, 2017 (this “Agreement”) is entered into among DIODES INCORPORATED, a Delaware corporation (the “Domestic Borrower”), DIODES INTERNATIONAL B.V., a besloten vennootschap met beperkte aansprakelijkheid organized under the laws of the Netherlands, having its statutory seat in Amsterdam, the Netherlands and registered with the trade register of the Chambers of Commerce in the Netherlands under number 34274981 (the “Foreign Borrower” and together with the Domestic Borrower, the “Borrowers” and each, individually, a “Borrower”), certain Subsidiaries of the Domestic Borrower identified on the signature pages hereto as subsidiary guarantors (the “Subsidiary Guarantors”), the Lenders identified on the signature pages hereto and BANK OF AMERICA, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”).
PRELIMINARY STATEMENTS
The Borrowers, Subsidiary Guarantors, the Lenders and the Administrative Agent are parties to that certain Amended and Restated Credit Agreement dated as of October 26, 2016, as amended by that certain Amendment No. 1 to Amended and Restated Credit Agreement and Limited Waiver dated as of February 13, 2017 (as further amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Credit Agreement”).
On or about March 1, 2017, Diodes Taiwan Incorporated, a corporation organized under the laws of Taiwan (“DTI”), merged into Diodes Taiwan SARL, an entity organized under the laws of Luxembourg (“DTSARL”), with DTSARL being the surviving entity and continuing to operate in Taiwan. The Borrowers have advised that before the merger, DTSARL had no operations or operating assets; thus, the post-merger entity is the same business as DTI, now organized as an SARL under Luxembourg law.
The Borrowers have requested that the Administrative Agent and the Lenders agree to amend the Credit Agreement to allow DTSARL to utilize the exception to the Indebtedness negative covenant set forth in Section 7.02(g) previously available to DTI as a Subsidiary organized under the laws of a jurisdiction in Asia. Subject to the terms and conditions set forth herein, the Administrative Agent and each of the Lenders party hereto have agreed to grant such requests of the Borrowers.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1.Defined Terms. Except as otherwise provided herein, all capitalized undefined terms used in this Agreement (including, without limitation, in the introductory paragraph and the preliminary statements hereto) shall have the meanings assigned thereto in the Credit Agreement.
2.Credit Agreement Amendment.
Section 7.02(g) of the Credit Agreement is hereby amended and restated as follows:
(g)Indebtedness of Subsidiaries (inclusive of the Indebtedness of such Subsidiaries set forth on Schedule 7.02) organized under the laws of a jurisdiction in Asia and of Diodes Taiwan SARL, an entity organized under the laws of Luxembourg, in an aggregate amount not to exceed $70,000,000 at any time, all of which may be refinanced, amended or replaced from time to time; provided that the aggregate amount of such Indebtedness does not exceed $70,000,000;
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3.Conditions to Effectiveness. This Agreement shall be effective upon the Administrative Agent's receipt of the following, each of which shall be originals or electronic images in a portable document format (e.g. “.pdf” or “.tif”) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the date hereof (the first date all the conditions precedent in this Section 4 are satisfied or waived in accordance with Section 11.01 of the Credit Agreement (the “Second Amendment Effective Date”)) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Required Lenders:
(a)executed counterparts of this Agreement signed by the Borrowers, the Guarantors, the Administrative Agent and the Required Lenders; and
(b)such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
Without limiting the generality of the provisions of the last paragraph of Section 9.03 of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, the L/C Issuer and each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Second Amendment Effective Date specifying its objection thereto.
4.Effect of this Agreement. Except as expressly provided herein, the Credit Agreement, the Collateral Agreement and the other Loan Documents shall remain unmodified and in full force and effect. Except as expressly set forth herein, this Agreement shall not be deemed (a) to be a waiver of, or consent to a modification of or amendment of, any other term or condition of the Credit Agreement, the Collateral Agreement or any other Loan Document, (b) to prejudice any other right or rights which the Administrative Agent or the Lenders may now have or may have in the future under or in connection with the Credit Agreement, the Collateral Agreement or the other Loan Documents or any of the instruments or agreements referred to therein, as the same may be amended, restated, supplemented or otherwise modified from time to time, (c) to be a commitment or any other undertaking or expression of any willingness to engage in any further discussion with the Borrowers or any other Person with respect to any waiver, amendment, modification or any other change to the Credit Agreement, the Collateral Agreement or the other Loan Documents or any rights or remedies arising in favor of the Lenders or the Administrative Agent, or any of them, under or with respect to any such documents or (d) to be a waiver of, or consent to a modification or amendment of, any other term or condition of any other agreement by and among any Loan Party, on the one hand, and the Administrative Agent or any other Lender, on the other hand. References in this Agreement to the Credit Agreement (and indirect references such as “hereunder”, “hereby”, “herein”, and “hereof”) and in any Loan Document to the Credit Agreement shall be deemed to be references to the Credit Agreement as modified hereby.
5.Representations and Warranties/No Default. By their execution hereof, each Loan Party hereby represents and warrants as follows:
(a)Such Loan Party has the right, power and authority and has taken all necessary corporate and other action to authorize the execution and delivery of, and the performance in accordance with their respective terms of the transactions consented to in, this Agreement and each other document executed in connection herewith to which it is a party.
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(b)This Agreement and each other document executed in connection herewith has been duly executed and delivered by its duly authorized officers, and each such document constitutes the legal, valid and binding obligation of such Loan Party, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies.
(c)Each of the representations and warranties set forth in the Credit Agreement and the other Loan Documents is true and correct as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 of the Credit Agreement.
(d)No Default or Event of Default has occurred or is continuing (after giving effect to this Agreement) nor would any Default or Event of Default result after giving effect to this Agreement and the transactions contemplated hereby.
(e)No Loan Party is an EEA Financial Institution.
6.Reaffirmations. (a) Each Loan Party agrees that the transactions contemplated by this Agreement shall not limit or diminish the obligations of such Person under, or release such Person from any obligations under, the Credit Agreement (including the Guaranty), the Collateral Agreement and each other Loan Document to which it is a party, (b) each Loan Party confirms, ratifies and reaffirms its obligations under the Credit Agreement (including the Guaranty), the Collateral Agreement and each other Loan Document to which it is a party, and (c) each Loan Party agrees that, except as otherwise expressly agreed in this Agreement, the Credit Agreement (including the Guaranty), the Collateral Agreement and each other Loan Document to which it is a party remain in full force and effect and are hereby ratified and confirmed.
7.Confirmation as to Dutch Collateral Documents. Reference is made to (i) that certain Deed of Pledge of Shares dated October 20, 2016, among the Domestic Borrower, Pericom Semiconductor Corporation and Diodes Investment Company, as pledgors, Bank of America, N.A. as pledgee and Diodes Holding B.V., a besloten vennootschap met beperkte aansprakelijkheid (private limited company) incorporated under the laws of the Netherlands, having its statutory seat in Amsterdam, the Netherlands, and registered with the trade register of the Chambers of Commerce in the Netherlands under number ###-###-#### (“Dutch NewCo”), as company (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “NewCo Dutch Share Pledge”), (ii) that certain Deed of Pledge of Shares dated July 21, 2016, among Dutch NewCo, as pledgor, the Administrative Agent as pledgee and the Foreign Borrower as company (the “Foreign Borrower Dutch Share Pledge”), (iii) that certain omnibus pledge agreement dated 8 January 2013, between the Foreign Borrower as pledgor and Bank of America, N.A. as pledgee (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Foreign Borrower Omnibus Pledge Agreement”) and (iv) that certain omnibus pledge agreement dated July 18, 2016, between Dutch NewCo as pledgor and Bank of America, N.A. as pledgee (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Dutch NewCo Omnibus Pledge Agreement”, together with the Foreign Borrower Omnibus Pledge Agreement, the Foreign Borrower Dutch Share Pledge and the NewCo Dutch Share Pledge, the “Dutch Collateral Documents”). Each party to the Dutch Collateral Documents hereby confirms that:
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(a)the Credit Agreement (as amended by this Agreement), and the other Loan Documents will remain in full force and effect and any reference in the Loan Documents to the Credit Agreement or to any provision of the Credit Agreement will be construed as a reference to the Credit Agreement, or that provision, as amended by this Agreement;
(b)notwithstanding the amendments made to the Credit Agreement pursuant to this Agreement, the Dutch Collateral Documents and the security interests created thereunder will remain in full force and effect and will continue to secure all liabilities which are expressed to be secured by them and the rights of the Loan Parties under such security interest will not be affected by this Agreement;
(c)any amount owed by any Borrower under this Agreement and the Credit Agreement (as amended by this Agreement) is part of (i) the definition of Secured Obligations (as included/defined in the Dutch Collateral Documents) and (ii) each Loan Party’s Parallel Debts (as included/defined in the Credit Agreement); and
(d)at the time of the entering into the Dutch Collateral Documents, it was their intention that the security rights created pursuant to the Dutch Collateral Documents would secure the Foreign Obligations as they may be amended, restated, supplemented or otherwise modified from time to time, including amendments to the Credit Agreement and the Loan Documents such as the amendments to be effected by this Agreement.
8.Miscellaneous
(a)Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. Without limiting the general applicability of the foregoing and the terms of the other Loan Documents to this Agreement and the parties hereto, the terms of Section 11.14 and Section 11.15 of the Credit Agreement are incorporated herein by reference, mutatis mutandis.
(b)Loan Document. This Agreement shall constitute a “Loan Document” under and as defined in the Credit Agreement.
(c)Counterparts; Electronic Execution. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.
(d)Severability. If any provision of this Agreement is determined to be illegal, invalid or unenforceable, such provision shall be fully severable and the remaining provisions shall remain in full force and effect and shall be construed without giving effect to the illegal, invalid or unenforceable provisions.
(e)Entirety. This Agreement, the other Loan Documents and the other documents relating to the Obligations represent the entire agreement of the parties hereto and thereto, and supersede all prior agreements and understandings, oral or written, if any, including any commitment letters or correspondence relating to the Loan Documents, any other documents relating to the Obligations, or the transactions contemplated herein and therein.
(f)Netherlands Law. If the Foreign Borrower and/or Dutch NewCo is represented by an attorney in connection with the signing and/or execution of this Agreement or any other agreement,
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deed or document referred to in or made pursuant to this Agreement, it is hereby expressly acknowledged and accepted by the other parties to this Agreement that the existence or extent of the attorney’s authority and the effects of the attorney’s exercise or purported exercise of his or her authority shall be governed by the laws of the Netherlands.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
DOMESTIC BORROWER:
DIODES INCORPORATED
By: /s/ Richard D. White
Name:Richard D. White
Title:Chief Financial Officer
FOREIGN BORROWER:
DIODES INTERNATIONAL B.V.
By: /s/ Richard D. White
Name: Richard D. White
Title:Managing Director A
By: /s/ B. B. Faber
Name: B. B. Faber
Title:Managing Director B
SUBSIDIARY GUARANTORS:
DIODES INVESTMENT COMPANY
By: /s/ Richard D. White
Name: Richard D. White
Title:Chief Financial Officer
Signature Page to Amendment No. 2 to A&R Credit Agreement
Diodes Incorporated
DIODES FABTECH INC.
By: /s/ Richard D. White
Name: Richard D. White
Title:Director
DIODES HOLDINGS UK LIMITED
By: /s/ Richard D. White
Name: Richard D. White
Title:Director
DIODES ZETEX LIMITED
By: /s/ Richard D. White
Name: Richard D. White
Title:Director
PERICOM SEMICONDUCTOR CORPORATION
By: /s/ Richard D. White
Name: Richard D. White
Title:Chief Financial Officer and Secretary
Signature Page to Amendment No. 2 to A&R Credit Agreement
Diodes Incorporated
DIODES HOLDING B.V.
By: /s/ Richard D. White
Name: Richard D. White
Title: Managing Director A
By: /s/ B. B. Faber
Name: B. B. Faber
Title: Managing Director
Signature Page to Amendment No. 2 to A&R Credit Agreement
Diodes Incorporated
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Mollie S. Canup
Name: Mollie S. Canup
Title:Vice President
Signature Page to Amendment No. 2 to A&R Credit Agreement
Diodes Incorporated
BANK OF AMERICA, N.A.,
as a Lender, L/C Issuer and Swing Line Lender
By: /s/ Jennifer Yan
Name: Jennifer Yan
Title:Senior Vice President
Signature Page to Amendment No. 2 to A&R Credit Agreement
Diodes Incorporated
COMPASS BANK,
as a Lender
By: /s/ Jay S. Tweed
Name: Jay S. Tweed
Title:SVP
Signature Page to Amendment No. 2 to A&R Credit Agreement
Diodes Incorporated
CITIBANK, N.A.,
as a Lender
By: /s/ D. Sowards
Name: Debbie Sowards
Title:Senior Vice President
Signature Page to Amendment No. 2 to A&R Credit Agreement
Diodes Incorporated
BMO HARRIS BANK N.A.,
as a Lender
By: /s/ Josh Hovermale
Name: Josh Hovermale
Title:Director
Signature Page to Amendment No. 2 to A&R Credit Agreement
Diodes Incorporated
REGIONS BANK,
as a Lender
By: /s/ Mohamed Saadalla
Name: Mohamed Saadalla
Title:Vice President
Signature Page to Amendment No. 2 to A&R Credit Agreement
Diodes Incorporated
SILICON VALLEY BANK,
as a Lender
By: /s/ Robert Clouse
Name: Robert Clouse
Title:Director
Signature Page to Amendment No. 2 to A&R Credit Agreement
Diodes Incorporated
CAPITAL ONE, N.A.,
as a Lender
By: /s/ Richard O’Neill
Name: Richard O’Neill
Title:Managing Director
Signature Page to Amendment No. 2 to A&R Credit Agreement
Diodes Incorporated
COMERICA BANK,
as a Lender
By: /s/ John Smithson
Name: John Smithson
Title:Vice President
Signature Page to Amendment No. 2 to A&R Credit Agreement
Diodes Incorporated
MUFG UNION BANK, N.A.,
as a Lender
By: /s/ Lillian Kim
Name: Lillian Kim
Title:Director
Signature Page to Amendment No. 2 to A&R Credit Agreement
Diodes Incorporated
WELLS FARGO BANK, N.A.,
as a Lender
By: /s/ Mitsoo Iravani
Name: Mitsoo Iravani
Title:Sr. Vice Presdent
Signature Page to Amendment No. 2 to A&R Credit Agreement
Diodes Incorporated
