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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM 10-Q
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934.
For the quarterly period ended June 30, 1998.
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934.
For the period from ________ to ________.
Commission File Number 0-11348
SILICON VALLEY GROUP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-2264681
(State of incorporation) (IRS Employer Identification No.)
101 METRO DRIVE, SUITE #400, SAN JOSE, CALIFORNIA 95110
(Address of principal executive offices) (Zip Code)
(408) 441-6700
(Registrant's telephone number, including area code)
NONE
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
The number of shares outstanding of the Registrant's Common Stock as of
July 31, 1998 was 32,570,344.
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SILICON VALLEY GROUP, INC.
INDEX
<TABLE>
<CAPTION>
PART I. FINANCIAL INFORMATION
PAGE NO.
--------
<S> <C>
Consolidated Condensed Balance Sheets as of June 30,
1998 and September 30, 1997 3
Consolidated Condensed Statements of Operations for the
Quarters and Nine Months Ended June 30, 1998 and 1997 4
Consolidated Condensed Statements of Cash Flows for
the Nine Months Ended June 30, 1998 and 1997 5
Notes to Consolidated Condensed Financial Statements 6
Management's Discussion and Analysis of Financial
Condition and Results of Operations 8
PART II. OTHER INFORMATION 19
SIGNATURES 21
</TABLE>
<PAGE> 3
PART I. FINANCIAL INFORMATION
SILICON VALLEY GROUP, INC.
CONSOLIDATED CONDENSED BALANCE SHEETS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
June 30, September 30,
1998 1997
------------ ------------
(Unaudited)
ASSETS
<S> <C> <C>
CURRENT ASSETS:
Cash and equivalents $ 116,754 $ 129,689
Temporary investments 42,969 76,972
Accounts receivable (net of allowance for doubtful
accounts of $7,641 and $6,794, respectively) 134,756 145,794
Inventories 236,028 228,453
Prepaid expenses and other assets 7,117 7,507
Deferred taxes 19,250 5,863
------------ ------------
Total current assets 556,874 594,278
PROPERTY AND EQUIPMENT - NET 189,445 150,985
DEPOSITS AND OTHER ASSETS 6,514 6,170
INTANGIBLE ASSETS - NET 3,906 4,584
------------ ------------
TOTAL $ 756,739 $ 756,017
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $28,120 $ 43,707
Accrued liabilities 125,798 127,449
Current portion of long-term debt and capital leases 675 1,848
Income taxes payable 2,235 515
------------ ------------
Total current liabilities 156,828 173,519
LONG-TERM DEBT AND CAPITAL LEASES 6,000 6,515
DEFERRED AND OTHER LIABILITIES 5,593 2,873
STOCKHOLDERS' EQUITY:
Common Stock - shares outstanding:
June 30, 1998: 32,570,225
September 30, 1997: 32,272,342 402,856 399,663
Retained earnings 188,849 173,961
Minimum pension liability (274) (274)
Cumulative translation adjustment (3,113) (240)
------------ ------------
Stockholders' equity 588,318 573,110
------------ ------------
TOTAL $ 756,739 $ 756,017
============ ============
</TABLE>
See Notes to Consolidated Condensed Financial Statements
3
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SILICON VALLEY GROUP, INC.
CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
Quarters Ended Nine Months Ended
June 30, June 30,
1998 1997 1998 1997
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
NET SALES $ 116,385 $ 166,079 $ 500,964 $ 439,982
COST OF SALES 78,297 103,333 310,974 273,928
--------- --------- --------- ---------
GROSS PROFIT 38,088 62,746 189,990 166,054
OPERATING EXPENSES:
Research, development and
related engineering 20,673 18,261 67,302 53,210
Marketing, general and
administrative 29,884 37,136 106,040 96,554
Settlement of royalty
obligation -- -- -- 32,582
--------- --------- --------- ---------
OPERATING (LOSS) INCOME (12,469) 7,349 16,648 (16,292)
INTEREST AND OTHER INCOME - NET 1,339 2,854 4,650 8,256
INTEREST EXPENSE (227) (191) (736) (585)
--------- --------- --------- ---------
(LOSS) INCOME BEFORE INCOME
TAXES AND MINORITY INTEREST (11,357) 10,012 20,562 (8,621)
(BENEFIT) PROVISION FOR INCOME TAXES (4,540) 3,450 5,674 (2,877)
MINORITY INTEREST -- -- -- 92
--------- --------- --------- ---------
NET (LOSS) INCOME $ (6,817) $ 6,562 $ 14,888 $ (5,836)
========= ========= ========= =========
NET (LOSS) INCOME PER SHARE - BASIC $ (0.21) $ 0.21 $ 0.46 $ (0.19)
========= ========= ========= =========
SHARES USED IN BASIC PER SHARE
COMPUTATIONS 32,556 31,904 32,393 31,481
========= ========= ========= =========
NET (LOSS) INCOME PER SHARE - DILUTED $ (0.21) $ 0.20 $ 0.45 $ (0.19)
========= ========= ========= =========
SHARES USED IN DILUTED PER SHARE
COMPUTATIONS 32,556 32,664 32,890 31,481
========= ========= ========= =========
</TABLE>
See Notes to Consolidated Condensed Financial Statements
4
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SILICON VALLEY GROUP, INC.
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
Nine Months Ended
June 30,
---------
1998 1997
--------- ---------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) $ 14,888 $ (5,836)
Reconciliation to net cash provided by
operating activities:
Depreciation and amortization 27,918 18,576
Amortization of intangibles 678 257
Deferred income taxes (13,387) (2,698)
Minority interest -- 92
Settlement of royalty obligation -- 27,582
Changes in assets and liabilities:
Accounts receivable 11,038 (2,609)
Inventories (7,575) (6,522)
Prepaid expenses and other assets 390 1,245
Deposits and other assets (344) (80)
Accounts payable (15,587) 4,032
Accrued and deferred liabilities 1,520 (7,555)
Income taxes 1,720 (4,313)
Minimum pension liability -- (146)
--------- ---------
Net cash provided by operating activities 21,259 22,025
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of temporary investments (5,186) (78,789)
Maturities of temporary investments 39,189 41,551
Purchases of property and equipment (66,378) (57,220)
Purchase of minority interest in subsidiary -- (3,000)
--------- ---------
Net cash used for investing activities (32,375) (97,458)
--------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Repayment of debt (1,938) (1,062)
Proceeds from borrowings 250 6,462
Sale of Common Stock 3,193 3,338
--------- ---------
Net cash provided by financing activities 1,505 8,738
--------- ---------
EFFECT OF EXCHANGE RATE CHANGES ON CASH (3,324) (692)
--------- ---------
NET DECREASE IN CASH AND EQUIVALENTS (12,935) (67,387)
CASH AND EQUIVALENTS:
Beginning of period 129,689 219,317
--------- ---------
End of period $ 116,754 $ 151,930
========= =========
NON-CASH INVESTING AND FINANCING ACTIVITIES:
Note Payable issued for additional facilities $ -- $ 750
========= =========
</TABLE>
See Notes to Consolidated Condensed Financial Statements
5
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SILICON VALLEY GROUP, INC.
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
1. CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
The accompanying consolidated condensed financial statements have been prepared
by the Company without audit and reflect all adjustments, consisting only of
normal recurring adjustments, which in the opinion of management are necessary
to present fairly the financial position and the results of operations for the
interim periods. The statements have been prepared in accordance with the
regulations of the Securities and Exchange Commission, but omit certain
information and footnote disclosures necessary to present the statements in
accordance with generally accepted accounting principles. For further
information, refer to the Consolidated Financial Statements and Notes thereto
included in the Company's Annual Report on Form 10-K for the year ended
September 30, 1997. Results for fiscal 1998 interim periods are not necessarily
indicative of results to be expected for the fiscal year ending September 30,
1998.
2. RECLASSIFICATIONS
Certain reclassifications have been made to the prior year's Consolidated
Condensed Financial Statements to conform to the current fiscal period
presentation.
3. INVENTORIES
Inventories are comprised of:
<TABLE>
<CAPTION>
June 30, September 30,
-------- -------------
1998 1997
---- ----
(In thousands)
<S> <C> <C>
Raw materials $107,310 $ 92,660
Work-in-process 118,375 128,662
Finished goods 10,343 7,131
-------- --------
$236,028 $228,453
======== ========
</TABLE>
4. NET INCOME (LOSS) PER SHARE
The Company adopted Statement of Financial Accounting Standards (SFAS) No. 128,
"Earnings Per Share," effective October 1, 1997, which replaces prior earnings
per share (EPS) reporting and requires dual presentation of basic and diluted
EPS. The Company has restated all prior periods to conform with this Statement.
Basic net income per share is computed by dividing net income by the weighted
average number of common shares outstanding.
The quarter ended June 30, 1998 was a loss period, therefore common stock
equivalents would be anti-dilutive and were not included in the calculation of
net loss per share. Diluted net income per share includes an additional 760,000
shares for the quarter ended June 30, 1997 to reflect the potential dilution
that could occur if dilutive stock options were converted into common stock.
6
<PAGE> 7
5. TINSLEY LABORATORIES, INC. ACQUISITION
On November 26, 1997, the Company acquired Tinsley Laboratories, Inc. (TLI), in
a stock for stock transaction whereby approximately 1,091,000 shares of the
Company's Common Stock were exchanged for all outstanding shares of TLI Common
Stock. TLI designs, manufactures and sells precision optical components,
assemblies and systems to customers in a variety of industries and research
endeavors. The transaction was accounted for as a pooling of interests for
financial reporting purposes. All prior periods have been restated to include
TLI financial results.
6. LINE OF CREDIT
On June 30, 1998 the Company entered into an unsecured $150,000,000 bank
revolving line of credit agreement which expires in June, 2001. Advances under
the line of credit bear interest at either the U.S. prime rate or the LIBOR rate
plus 0.65% to 1.50%. The agreement includes covenants regarding liquidity,
profitability, leverage, coverage of certain charges and minimum net worth and
prohibits the payment of cash dividends.
7. REVENUE RECOGNITION
The Company recognizes revenue upon meeting the specifications under an
equipment purchase contract and when the buyer accepts and takes title to the
equipment, generally upon shipment. During the quarter ended June 30, 1998, the
Company recognized approximately $24 million of net sales to two customers who
accepted and took title to the related equipment, and agreed to normal payment
terms, but requested that the Company store the equipment until predetermined
shipment dates, which range through March 1999.
8. RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
In June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive Income",
which establishes standards for the reporting and display of comprehensive
income and its components in a full set of general purpose financial statements;
and SFAS No. 131, "Disclosures About Segments of an Enterprise and Related
Information", which establishes annual and interim reporting standards for a
Company's business segments and related disclosures about its products,
services, geographic areas and major customers. Both SFAS No. 130 and SFAS No.
131 are effective for the Company beginning October 1, 1998. The Company
believes that the adoption of the new standards will not have a material effect
on the financial statements.
7
<PAGE> 8
SILICON VALLEY GROUP, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The information in this discussion contains forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934, as amended. Such statements are subject to
certain risks and uncertainties, including those discussed below, as well as
risk factors included in the Company's Annual Report on Form 10-K for the fiscal
year ended September 30, 1997, that could cause actual results to differ
materially from those projected. Readers are cautioned not to place undue
reliance on these forward-looking statements, which speak only as of the date
hereof. Forward-looking statements are indicated by an asterisk (*) following
the sentence in which such statement is made. The Company undertakes no
obligation to publicly release the results of any revisions to these
forward-looking statements which may be made to reflect events or circumstances
after the date hereof or to reflect the occurrence of unanticipated events.
RESULTS OF OPERATIONS
The Company designs, manufactures, markets and services semiconductor processing
equipment used in the fabrication of integrated circuits. The Company's products
are used in photolithography for exposure and photoresist processing, and in
deposition for oxidation/diffusion and low pressure chemical vapor deposition
(LPCVD). The Company manufactures and markets its photolithography exposure
products through its wholly owned subsidiary, SVG Lithography Systems, Inc.
(SVGL), its photoresist processing products through its Track Systems Division
(Track), its oxidation/diffusion and LPCVD products through its Thermco Systems
Division (Thermco), and certain of its precision optical components through its
wholly owned subsidiary Tinsley Laboratories, Inc.
On November 26, 1997, the Company acquired Tinsley Laboratories, Inc. ("TLI").
(See "Liquidity and Capital Resources.") The transaction has been accounted for
as a pooling of interests for financial reporting purposes. All amounts
discussed below have been retroactively restated to reflect the inclusion of
TLI, which does not have a material effect on the overall results of the
Company.
The semiconductor industry into which the Company sells its products is highly
cyclical and has, historically, experienced periodic downturns that have had a
severe effect on the semiconductor industry's demand for semiconductor
processing equipment. As a result of the Asian economic crisis, an oversupply of
certain semiconductor products, the impact of low cost personal computers, and
various other factors, semiconductor manufacturers have reduced planned
expenditures and cancelled or delayed the construction of new fabrication
facilities. This slowdown in demand began to impact the Company during the
fourth quarter of calendar 1997 (the Company's first fiscal quarter) as the
Company experienced lower customer bookings (bookings), customer deferrals of
scheduled equipment delivery dates and, to a lesser extent, customer order
cancellations. During the fourth quarter of fiscal 1997, the Company recorded
bookings of $205,711,000, significantly above bookings in fiscal 1998's first
three quarters of $175,253,000, $135,793,000 and $135,041,000, respectively. As
a result of the lower bookings, order rescheduling and cancellations, the
Company believes sales during the second half of fiscal 1998 will be as much as
35% to 40% below sales during the first half of fiscal 1998.* A
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<PAGE> 9
decrease in sales of this magnitude will result in significant reductions in the
Company's gross margin and net income.* There can be no assurance that the
Company will not experience further customer delivery deferrals, additional
order cancellations or a prolonged period of customer orders at reduced levels,
any or a combination of which would have a material adverse effect on the
Company's business and results of operations.*
In an effort to lessen the impact of these lower volumes, the Company reduced
its workforce by approximately 6% in the third quarter of 1998 and in July 1998
announced an additional reduction of approximately 21%. Additionally, the
Company shutdown the majority of its operations for five days during the third
quarter of fiscal 1998, has scheduled an additional ten shutdown days in the
fourth quarter of fiscal 1998 and has severely restricted personnel additions.*
The Company estimates that the operating results for the fourth quarter of
fiscal 1998 will include a charge of approximately $3,000,000 in severence and
other costs related to the reduction in its workforce discussed above.*
Historically, the Company has relied on a limited number of customers for a
substantial percentage of its net sales. In fiscal 1997, the Company's two
largest customers accounted for 60% of net sales, the largest representing 38%
of the total. During the first nine months of fiscal 1998, the Company's three
largest customers comprised 70% of net sales, the largest representing 39% of
the total. Further, the Company believes that, for the foreseeable future, it
will continue to rely on a limited number of major customers for a substantial
percentage of its net sales.* As a result of delays in delivering initial
quantities of 200-APS Track systems, the Company believes that one of its
largest Track customers will purchase systems with similar capabilities from
another supplier, which will have an adverse effect on Track's sales in future
periods.* See "Risks Inherent in the Company's Business - Rapid Technological
Change; Dependence on New Product Development". The loss of any other
significant customers, further delays in shipments due to rescheduling or
additional reductions in orders by a significant customer, including reductions
in orders due to market, economic or competitive conditions in the semiconductor
industry, will further exacerbate the adverse effect the customer order
rescheduling and cancellations discussed above have on the Company's business
and results of operations.*
During the quarter ended June 30, 1998, the Company recognized net sales of
approximately $24,000,000 to two customers who accepted and took title to the
related equipment and agreed to normal payment terms, but requested that the
Company store the equipment until predetermined shipment dates, which extend
through March 1999. The Company anticipates that it will receive similar
requests during the fourth quarter of fiscal 1998.
Net sales for the third fiscal quarter ended June 30, 1998 were $116,385,000,
down 41% from net sales for the preceding quarter of $195,872,000, and 30% below
third quarter fiscal 1997 net sales of $166,079,000. The decrease in third
quarter fiscal 1998 net sales compared to both the preceding and year-earlier
quarters was principally due to lower shipments by SVGL, Track and Thermco
resulting from lower customer order bookings during the first three quarters of
fiscal 1998, customer deferrals of scheduled equipment delivery dates and
customer order cancellations.
For the first nine months of fiscal 1998, the Company's net sales totaled
$500,964,000, approximately 14% above net sales of $439,982,000 for the first
nine months of fiscal 1997. The increased net sales were primarily due to
significantly higher SVGL and Track shipments during the first six months of
fiscal 1998, offset in part by the decreased third quarter fiscal 1998 shipments
discussed above.
During the third quarter of fiscal 1998, the Company recorded customer order
bookings of $135,041,000, approximately level with second quarter fiscal 1998
bookings of $135,793,000 but
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<PAGE> 10
significantly below bookings for the year-earlier quarter of $188,396,000. The
Company includes in backlog only those orders to which a purchase order number
has been assigned by the customer, with all terms and conditions agreed upon and
for which delivery has been specified within twelve months. During the third
quarter of fiscal 1998, a customer order totaling $7,200,000 was removed from
the Company's backlog due to the customer deferring its scheduled delivery to a
date outside the Company's one-year parameter and $4,210,000 in other customer
orders were cancelled. After giving effect to such rescheduled and cancelled
orders, the Company's backlog at June 30, 1998 totaled $295,854,000,
significantly below the September 30, 1997 backlog of $435,482,000. At June 30,
1998, the backlog included orders for 40 Micrascan photolithography systems.
Additionally, SVGL had orders for 26 additional Micrascan systems with scheduled
delivery dates outside the twelve-month backlog window.
Gross margin was 32.7% in the third quarter of fiscal 1998, compared to 39.6%
during the preceding quarter and 37.8% in the third quarter of fiscal 1997. In
comparison to both the preceding and year-earlier quarters, the decreased gross
margin was primarily the result of lower overall volumes at SVGL and Track .
For the first nine months of fiscal 1998, gross margin was 37.9% compared to
37.7% for the first nine months of fiscal 1997. Improvements in gross margin
during the first six months of fiscal 1998 were substantially offset by the
decreased gross margin in the third quarter of fiscal 1998 discussed above.
Research, development and related engineering expenses are net of funding
received from outside parties under development agreements. Such funding is
typically payable upon the attainment of one or more development milestones that
are specified in the agreement. Neither the spending, nor the recognition of the
funding related to the development milestones is ratable over the term of the
agreements. For all the periods being compared, such funding was primarily
related to agreements between SVGL and certain customers for the development of
a 193 nanometer Micrascan system. (See "SVG Lithography Systems, Inc. (SVGL)").
Research, development and related engineering expenses (R&D) were $20,673,000
(18% of net sales) for the third quarter of fiscal 1998, $25,560,000 (13% of net
sales) for the preceding quarter and $18,261,000 (11% of net sales) for the
third quarter of fiscal 1997. For the third and second quarters of fiscal 1998
and the third quarter of fiscal 1997, development funding of $3,731,000,
$3,136,000 and $2,777,000, respectively, was recognized and offset against R&D.
The decrease in third quarter fiscal 1998 R&D from the preceding quarter was
primarily the result of reductions in costs related to certain development
programs. The increase in third quarter fiscal 1998 R&D over the year-earlier
quarter was primarily due to new product and process development, particularly
multiple lithography development programs, and the design and development of
equipment capable of processing the next generation 300mm wafer. Over both the
earlier quarters, the increase in third quarter fiscal 1998 R&D as a percentage
of net sales reflects the significantly lower level of shipments during the
current quarter.
For the first nine months of fiscal 1998 R&D was $67,302,000, up from
$53,210,000 for the same period of fiscal 1997. For the nine month periods ended
June 30, 1998 and 1997, funding received under joint development agreements of
$9,235,000 and $4,963,000, respectively, was offset against R&D expenditures.
Compared to the first nine months of fiscal 1997, the increase in R&D was
primarily due to new product and process development, particularly at SVGL, the
design and development of equipment capable of processing the next generation
300mm wafer and costs associated with Track's 200APS program.
10
<PAGE> 11
Marketing, general and administrative expenses (MG&A) were $29,884,000 (26% of
net sales) for the third quarter of fiscal 1998 compared to $39,469,000 (20% of
net sales) for the preceding quarter and $37,136,000 (22% of net sales) for the
third quarter of fiscal 1997. The decrease in MG&A from the preceding quarter
was principally due to a reduction in certain shipment related costs. During the
year-earlier quarter, MG&A included a net charge of approximately $4,000,000
(the SMT Charge) related to an uncollectible receivable from Submicron
Technology PLC (SMT), a newly established semiconductor foundry in Thailand.
Compared to the year-earlier quarter, the decrease in MG&A is principally due to
the SMT Charge recorded in the earlier quarter and a reduction in certain
shipment related costs corresponding to the lower shipments during the quarter.
For the first nine months of fiscal 1998, marketing, general and administrative
expenses were $106,040,000 (21% of net sales) compared to $96,554,000 (22% of
net sales) for the first nine months of fiscal 1997. The year to year increase
in MG&A was primarily the result of costs related to the significantly increased
level of shipments during the first half of fiscal 1998 and, to a lesser degree,
additional administrative costs incurred in supporting the Company's operations.
These increases were offset in part by the effect of the SMT Charge recorded in
the year-earlier period.
Under the terms of a research and development agreement, SVGL owed IBM certain
royalties based on future operating results. In fulfillment of its obligation
under the agreement, during the second quarter of fiscal 1997 the Company
recognized an expense of $32,582,000 which represented royalties related to
products which were still under development at the settlement date.
For the third quarter of fiscal 1998, the Company had an operating loss of
$12,469,000, compared to operating income of $12,485,000 for the second quarter
of fiscal 1998 and operating income of $7,349,000 for the third quarter of
fiscal 1997. In comparison to the operating income in both of the earlier
quarters, the operating loss was the result of lower gross profits on
significantly lower net sales, offset in part by reduced operating expenses.
The Company had operating income of $16,648,000 for the first nine months of
fiscal 1998 compared to an operating loss of $16,292,000 for the corresponding
period of fiscal 1997. Without regard to the one-time royalty settlement with
IBM recorded during the first nine months of fiscal 1997, operating income was
approximately level from period to period.
Interest and other income was $1,339,000 during the third quarter of fiscal 1998
compared to $1,829,000 for the preceding quarter and $2,854,000 for the
year-earlier quarter. The decrease from the preceding quarter was due to lower
average cash balances available for investment and foreign currency translation
and exchange losses. The decrease in interest and other income from the
year-earlier quarter was due to lower average cash balances available for
investment, foreign currency translation and exchange losses and the absence of
certain royalty income under an agreement which expired during the fourth
quarter of fiscal 1997.
For the first nine months of fiscal 1998, interest and other income totaled
$4,650,000 compared to $8,256,000 for the first nine months of fiscal 1997. The
decrease from the year-earlier period was primarily the result of lower interest
income due to lower average cash balances available for investment, foreign
currency translation and exchange losses, in large part due to the strength of
the U.S. dollar, and the absence of certain royalty income under an agreement
which expired during the fourth quarter of fiscal 1997.
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<PAGE> 12
Interest expense was $227,000 during the third quarter of fiscal 1998, compared
to $255,000 during the preceding quarter and $191,000 during the year-earlier
quarter. During the first nine months of fiscal 1998, interest expense was
$736,000, compared to $585,000 during the first nine months of fiscal 1997.
The Company recorded a 28% provision for income taxes for the first nine months
of fiscal 1998, compared to a 36% provision for all of fiscal 1997. Variations
in the Company's effective tax rate relate primarily to changes in the
geographic distribution of the Company's pretax income and certain tax free
interest income.
The minority interest represented that share of SVGL's operating results
attributable to its minority stockholder, IBM. In March 1997, the Company
purchased IBM's interest in SVGL for $3,000,000. The Company now accounts for
SVGL as a wholly owned subsidiary.
The Company had a net loss of $6,817,000 ($0.21 loss per share) for the third
quarter of fiscal 1998 compared to net income of $9,560,000 ($0.29 earnings per
share) for the second quarter of fiscal 1998 and net income of $6,562,000 ($0.20
earnings per share) for the third quarter of fiscal 1997. For the first nine
months of fiscal 1998, the Company had net income of $14,888,000 ($0.45 earnings
per share), compared to a net loss of $5,836,000 ($0.19 loss per share) for the
first nine months of fiscal 1997.
RISKS INHERENT IN THE COMPANY'S BUSINESS
Fluctuations in Quarterly Results. The Company has, at times during its
existence, experienced quarterly fluctuations in its operating results. Due to
the relatively small number of systems sold during each fiscal quarter and the
relatively high revenue per system, customer order rescheduling or
cancellations, or production or shipping delays can significantly effect
quarterly revenues and profitability. The Company has experienced, and may again
experience, quarters during which a substantial portion of the Company's net
sales are realized near the end of the quarter.* Accordingly, shipments
scheduled near the end of a quarter which are delayed for any reason can cause
quarterly net sales to fall short of anticipated levels. Since most of the
Company's expenses are fixed in the short term, such shortfalls in net sales
could have an adverse effect on the Company's business and results of
operations.* The Company's operating results may also vary from quarter to
quarter based upon numerous factors including the timing of new product
introductions, product mix, level of sales, the relative proportion of domestic
and international sales, activities of competitors, acquisitions, international
events, currency exchange fluctuations, and difficulties obtaining materials or
components on a timely basis.* In light of these factors, the Company may again
experience variability in its quarterly operating results.*
Rapid Technological Change; Dependence on New Product Development. Semiconductor
manufacturing equipment and processes are subject to rapid technological change.
The Company believes that its future success will depend upon its ability to
continue to enhance its existing products and their process capabilities and to
develop and manufacture new products with improved process capabilities that
enable semiconductor manufacturers to fabricate semiconductors more
efficiently.* The Company is developing Track and Lithography products, and has
begun shipping Thermco products, capable of processing 300mm wafers in
anticipation of the industry's transition to this larger wafer standard.*
Failure to successfully introduce these or any other new products in a timely
manner could result in the loss of competitive position and could reduce sales
of existing products.* In addition, new product introductions
12
<PAGE> 13
could contribute to quarterly fluctuations in operating results as orders for
new products commence and increase the potential for a decline in orders of
existing products, particularly if new products are delayed.*
From time-to-time, the Company has experienced delays in the introduction of its
products and product enhancements due to technical, manufacturing and other
difficulties and may experience similar delays in the future.* For example,
during fiscal 1996, the Company announced a new Track product, the 200-APS.
Initial shipments of the 200-APS were scheduled to commence during the second
quarter of fiscal 1997, but did not ship until the second quarter of fiscal
1998. There can be no assurance that the Company will not experience
manufacturing problems as a result of instability of the design of either the
hardware or software elements of this or other new technology, or be able to
efficiently manufacture the 200-APS or other new products.* These issues could
result in product delivery delays and a subsequent loss of future sales.*
Semiconductor manufacturers tend to select either a single supplier or a primary
supplier for a certain type of equipment. The Company believes that prolonged
delays in delivering initial quantities of newly developed products to multiple
customers, whether due to the protracted release of product from engineering
into manufacturing or due to manufacturing difficulties, could result in
semiconductor manufacturers electing to install competitive equipment in their
fabrication facilities and could preclude industry acceptance of the Company's
products.* The Company believes that the 200-APS delay will result in its
largest Track customer purchasing systems with similar capabilities from another
supplier, which will have an adverse effect on Track's sales in future periods.*
The Company's inability to effect the timely production of new products or any
failure of these products to achieve market acceptance could have a material
adverse effect on the Company's business and results of operations.*
Historically, the unit cost of the Company's products has been the highest when
they are newly introduced into production and cost reductions have come over
time through engineering improvements, economies of scale and improvements in
the manufacturing process.* As a result, new products have, at times, had an
unfavorable impact on the Company's gross margins and results of operations.
There can be no assurance that the initial shipments of new products will not
have an adverse effect on the Company's profitability or that the Company will
be able to attain design improvements, manufacturing efficiencies or
manufacturing process improvements over time.* Further, the potential
unfavorable effect of newly introduced products on profitability can be
exacerbated when there is intense price competition in the marketplace.*
Competition. The semiconductor equipment industry is intensely competitive. The
Company faces substantial competition both in the United States and other
countries in all of its products. Significant competitive factors include
technology and cost of ownership, a formula which includes such data as initial
price, system throughput and reliability and time to maintain or repair. Other
competitive factors include familiarity with particular manufacturers' products,
established relationships between suppliers and customers, product availability
and technological differentiation. Occasionally, the Company has encountered
intense price competition with respect to particular orders and has had
difficulty establishing new relationships with certain customers who have
long-standing relationships with other suppliers.
Many of the Company's competitors are Japanese corporations. As a result of the
recent strength of the U.S. dollar in relation to the Japanese yen, the Company
is at a disadvantage when competing on the basis of price. In light of the
recent economic downturn in certain Asian countries which represent significant
markets for such competitors, the Company believes that it may encounter more
severe price competition in its non-Asian markets.
13
<PAGE> 14
Importance of the Japanese and Pacific Rim Markets. The Company's customers are
heavily concentrated in the United States and Europe. The Japanese and Pacific
Rim markets (including fabrication plants located in other parts of the world
which are operated by Japanese and Pacific Rim semiconductor manufacturers)
represent a substantial portion of the overall market for semiconductor
manufacturing equipment. To date, neither the Company's shipments into Japan nor
into the Pacific Rim have been significant. The Company believes that the
Japanese companies with which it competes have a competitive advantage because
their dominance of the Japanese and Pacific Rim semiconductor equipment market
provides them with the sales and technology base to compete more effectively
throughout the rest of the world. The Company is not engaged in any significant
collaborative effort with any Japanese or Pacific Rim semiconductor
manufacturers. As a result, the Company may be at a competitive disadvantage to
the Japanese equipment suppliers which are engaged in such collaborative efforts
with Japanese and Pacific Rim semiconductor manufacturers. The Company believes
that it must substantially increase its share of these markets if it is to
compete as a global supplier.* Further, in many instances, Japanese and Pacific
Rim semiconductor manufacturers fabricate devices such as dynamic random access
memory devices ("DRAMs"), with potentially different economic cycles than those
affecting the sales of devices manufactured by the majority of the Company's
U.S. and European customers. Failure to secure customers in these markets may
limit the global market share available to the Company and may increase the
Company's vulnerability to industry or geographic downturns.* Recent economic
difficulties in certain Asian countries, particularly Korea, will adversely
effect the Company's ability to penetrate such markets.*
In the past, several of the Company's larger customers have entered into joint
ventures ("JV") with European, Japanese or Pacific Rim semiconductor
manufacturers. In such cases, the Company has encountered intense price
competition from foreign competitors who are suppliers to the non-U.S. member of
the JV. Further, in certain instances the Company has not secured the equipment
order when the non-U.S. member has had the responsibility for selecting the
equipment to be used by the JV in its U.S. operations. There can be no assurance
that as the Company's customers form additional alliances, whether in the U.S.
or in other parts of the world, that the Company will be successful in obtaining
equipment orders or that it will be able to obtain orders with sufficient gross
margin to generate profitable transactions, either of which could have an
adverse effect on the Company's results of operations.*
Throughout the Pacific Rim, the Company is attempting to compete with major
equipment suppliers having significant market share and established service and
support infrastructures in place. Although the Company has invested in the
staffing and facilities that it believes are necessary to sell, service and
support customers, it anticipates that it will encounter significant price
competition as well as competition based on technological ability.* There can be
no assurance that the Company's Pacific Rim operations will be profitable, even
if it is successful in obtaining significant sales into this region.* Further,
due to recent economic issues in certain Asian countries, particularly Korea,
the Company's ability to penetrate such markets has been diminished. Failure to
secure customers in these markets would have an adverse effect on the Company's
business and results of operations.*
Year 2000. As the year 2000 approaches, a universal issue has emerged regarding
how existing application software programs and operating systems can accommodate
date values. The Company has completed a thorough analysis of the impact of
modifying its computer software for the year 2000. The Company believes that the
year 2000 modifications to the software necessary to effectively operate and
manage its business will be completed by the end of fiscal 1998.* Further, the
Company believes that the related costs of such solutions will not have a
material effect on its operating results.*
14
<PAGE> 15
The Company is in the process of initiating formal communications with
significant suppliers and large customers to determine the extent to which the
Company is vulnerable if such parties fail to remediate their own Year 2000
issues. There can be no guarantee that such a failure would not have a material
adverse effect on the Company.
Business Interruption. The Company manufactures its Track products in San Jose,
California and substantially all of its Thermco products in Orange, California.
SVGL's photolithography exposure products are manufactured in Wilton and
Ridgefield, Connecticut. If the Company were to lose the use of one of its
facilities as a result of an earthquake, flood or other natural disaster, the
resultant interruptions in operations would have a material adverse effect on
the Company's results of operations and financial condition.* The Company's
California facilities are located in seismically active regions.
SVG Lithography Systems, Inc. (SVGL)
SVGL - Uncertain Market for Micrascan Products. The Company believes that the
photolithography exposure equipment market is one of the largest segments of the
semiconductor processing equipment industry.* To address this market, the
Company has invested and expects to continue to invest substantial resources in
SVGL's Micrascan technology and its family of Micrascan deep ultraviolet ("Deep
UV") step and scan photolithography systems, capable of producing line widths of
.18 micron and below. The development of a market for the Company's Micrascan
step and scan photolithography products will be highly dependent on the
continued trend towards finer line widths in integrated circuits. Lithography
manufacturers have been successful in extending the capability of I-Line
steppers which have been utilized in the fabrication of complex semiconductor
devices with line widths of less than 0.5 micron, such as 64 megabit DRAMs. The
Company believes Deep UV lithography will be required to fabricate devices with
line widths below 0.3 micron.* Semiconductor manufacturers can purchase Deep UV
steppers to produce product at .25 micron line widths. However, the Company
believes that as devices increase in complexity and size and require finer line
widths, the technical advantages of Deep UV step and scan systems in the
exposure of critical layers, as compared to Deep UV steppers, will enable
semiconductor manufacturers to achieve finer line widths, higher yields and
superior critical dimension control.* The Company also believes that the
transition to Deep UV step and scan systems for the exposure of critical layers
will accelerate in calendar 1999 and that advanced semiconductor manufacturers
are beginning to require volume quantities of production equipment as advanced
as the current and pending versions of Micrascan.* Currently, competitive Deep
UV step and scan equipment capable of producing .25 micron line widths is
available in limited quantities from two competitors, and the Company believes
that at least one other manufacturer of advanced photolithography systems has
shipped at least one step and scan machine.* There can be no assurance that the
Company will be successful in competing with such systems.* Further, if
manufacturers of I-Line steppers and step and scan systems or manufacturers of
Deep UV steppers are able to further enhance existing technology to achieve
finer line widths sufficiently to erode the competitive and technological
advantages of Deep UV step and scan systems, demand for the Micrascan technology
may not develop as the Company expects.*
The Company believes that advanced logic devices and DRAMs will require
increasingly finer line widths.* Consequently, SVGL must continue to develop
advanced technology equipment capable of meeting its customers' current and
future requirements while offering those customers a progressively lower cost of
ownership.* In particular, the Company believes that it must continue its
development of future systems capable of printing line widths finer than .18
micron and processing 300mm wafers.*
15
<PAGE> 16
SVGL - Need to Increase Manufacturing Capacity and System Output. The Company
believes that its ability to supply systems in volume will be a major factor in
customer decisions to commit to the Micrascan technology.* Based upon its
forecast of continued high growth in demand for photolithography equipment and
potential future demand for advanced lithography products, the Company has been
in the process of increasing SVGL's production capacity under an extremely
aggressive expansion schedule. In August 1996, as part of this expansion, the
Company purchased from The Perkin-Elmer Corporation a 243,000 square foot
facility occupied by SVGL in Wilton, Connecticut and an additional 201,000
square foot building, which SVGL now occupies, in Ridgefield, Connecticut.
Through the first half of fiscal 1998, the Company has invested in significant
capital improvements related to the buildings purchased and the equipment
required to expand the production capabilities of SVGL. While the Company
intends to continue certain of the expansion activities through the remainder of
fiscal 1998, it may not invest in all of the metrology and other equipment
required to maximize manufacturing capacity until industry demand recovers.*
However, the Company plans to continue its ramp of optical components, thus
enabling it to quickly respond to customer requirements. Once demand recovers,
the timely construction and equipping of facilities to successfully complete the
increase in capacity will require the continued recruitment, training and
retention of a high quality workforce, as well as the achievement of
satisfactory manufacturing results on a scale greater than SVGL has attempted in
the past. There can be no assurance that the Company can manage these efforts
successfully. Any failure to manage such efforts could result in product
delivery delays and a subsequent loss of future revenues. In particular, the
Company believes that protracted delays in delivering quantities of current and
future Micrascan products could result in semiconductor manufacturers electing
to install competitive equipment in their advanced fabrication facilities, which
could impede acceptance of the Micrascan products on an industry-wide basis. In
addition, the Company's operating results could also be adversely affected by
the increase in fixed costs and operating expenses related to increases in
production capacity if net sales, for any reason, do not increase
commensurately.
The time required to build a Micrascan system is significant. If SVGL is to be
successful in supplying increased quantities of Micrascan systems, it will not
only need to be able to build more systems, it will need to build them faster.*
SVGL will require additional trained personnel and additional raw materials and
components, as well as improved manufacturing and testing techniques to both
facilitate volume and shorten manufacturing cycle time.* To that end, SVGL is
continuing to develop its vendor supply infrastructure, and implement
manufacturing improvements.* Additionally, the Company believes that once
industry demand recovers, it must resume increasing its factory, field service
and technical support organization staffing and infrastructure to support the
anticipated customer requirements. There can be no assurance that the Company
will not experience manufacturing difficulties or encounter problems in its
attempt to increase production and upgrade or expand existing operations.*
One of the most critical components of the Micrascan systems is the projection
optics, which are primarily manufactured by SVGL. As part of its overall
investment in capacity, the Company has increased SVGL's optical manufacturing
floorspace. The Company believes that in order for SVGL to be a viable supplier
of advanced lithography systems in the future, it must successfully reduce the
cycle times required to build projection optics.*
On November 26, 1997, the Company acquired Tinsley Laboratories, Inc. ("TLI").
(See "Liquidity and Capital Resources".) A primary reason for the acquisition
was TLI's technology and expertise relating to aspherical lenses, a key
component of SVGL's photolithography products, the adaptation of certain of
TLI's manufacturing processes by SVGL and TLI's commencement of the fabrication
of non-aspherical lenses which are currently produced by SVGL.* There can be no
assurance that TLI's
16
<PAGE> 17
manufacturing technology is scaleable, or that such expertise can be transferred
without substantial time or expense, if at all.* The inability of SVGL to
transfer this production technology for use in processes of a substantially
larger scale or the inability of TLI to manufacture non-aspherical lenses for
SVGL in sufficient quantities to realize efficiencies of scale could adversely
effect the Company's ability to realize any significant benefits from the
acquisition of TLI.*
The Company believes that protracted delays in delivering quantities of both
current and future generations of Micrascan products to multiple customers could
result in semiconductor manufacturers electing to install competitive equipment
in their advanced fabrication facilities, and could preclude industry acceptance
of the Micrascan technology and products.* In addition, the Company's operating
results could also be adversely affected by the increase in fixed costs and
operating expenses related to increases in production capacity and field service
and technical support activities if net sales do not increase commensurately.*
SVGL - Sole Source Materials and Components. The raw material for a proprietary
component of the optical system for the Micrascan is available from only one
supplier. The supplier has expanded its capacity to meet SVGL's projected
requirements and has created and stored agreed upon quantities of safety stock.
Additionally, a version of the Company's Micrascan III photolithography system
utilizes an Excimer laser that is manufactured in volume by only one supplier,
which until the first quarter of fiscal 1998 was the only vendor the Company had
determined could meet its specifications. There can be no assurance that either
supplier will be able to supply the quantities of material required by SVGL.* If
either supplier was unable to meet its commitments, SVGL would be unable to
manufacture the quantity of systems required to meet the anticipated future
demand, which would have a material adverse effect on the Company's business and
results of operations.* SVGL has qualified an additional source of lasers for
its current and future versions of Micrascan systems, allowing the potential for
the integration of such lasers into its system configurations.*
Certain other components are obtained from single sources. Although the Company
has not experienced significant production delays due to unavailability or delay
in procurement of such component parts or raw materials to date, disruption or
termination of certain of these sources could occur and such disruptions could
have an adverse effect on the Company's business and could result in damage to
customer relationships.
SVGL - Research and Development Funding. Historically, the Company has depended
on external funding to assist in the high cost of development in its
photolithography operation. Beginning in fiscal 1996, the Company entered into
agreements with certain customers (the "Participants") whereby each agreed to
assist in funding the Company's development of an advanced technology 193
nanometer Micrascan system. In exchange for such funding, each Participant
received the right to purchase one such system and, in addition, received a
right of first refusal (ratable among such Participants) to all such machines
manufactured during the first two years following the initial system shipments.
For each initial system ordered, each Participant agreed to fund $5,000,000 in
such development costs. The agreements call for each Participant to pay
$1,000,000 of initial development funding and four subsequent payments of
$1,000,000 upon the completion of certain development milestones. The
Participants may withdraw from the development program without penalty, but
payments made against completed development milestones are not refundable and
all preferential rights to future equipment are forfeited. At June 30, 1998, the
Company had received $19,000,000 in funding from Participants, of which
$17,178,000 had been recognized and offset against research and development
expenditures. There can be no assurances that the Participants will remain in
the program.* In the event that the Company does not receive the funding
17
<PAGE> 18
anticipated under the agreements, it would be required to replace the shortfall
from its own funds or other sources. If the Company were required to use its own
funds, its research and development expenses would increase and its operating
income would be reduced correspondingly. The agreements with the Participants
stipulate that if the Company receives funding for the development program in
excess of $25,000,000, it will issue, ratably to the Participants, credits
totaling such excess in the form of a cash discount which can be applied to the
purchase of additional systems by each Participant. There is no assurance that
the Company will receive all funding which it currently anticipates or that it
will be able to obtain future outside funding beyond that which it is currently
receiving.
SVGL - Market Penetration. The Company believes that for SVGL to succeed in the
long term, it must sell its Micrascan products on a global basis.* The Japanese
market (including fabrication plants operated outside Japan by Japanese
semiconductor manufacturers) and the Korean market represent a substantial
portion of the overall market for photolithography exposure equipment. To date,
the Company has not been successful penetrating either of these markets. Recent
economic difficulties in certain Asian economies, particularly Korea, may
adversely effect the Company's ability to penetrate such markets.*
SVGL - Future Profitability. If SVGL is to attain its objective of being a
volume supplier of advanced photolithography systems, the Company believes that
it must expand its customer base to include additional customers from whom it
secures and successfully fulfills orders for production-quantities of Micrascan
systems.* The Company believes that in light of the downturn in industry demand,
costs associated with the continued development of the Micrascan technology, the
expansion of SVGL's manufacturing capacity, the related increase in manpower and
customer support, and the potential difficulties inherent in manufacturing
sub-.25 micron Micrascan systems, in particular the projection optics required
for these systems, there can be no assurance that SVGL will be able to operate
profitably in the future.*
LIQUIDITY AND CAPITAL RESOURCES
At June 30, 1998, cash and cash equivalents and temporary investments totaled
$159,723,000, a decrease of $46,938,000 from the September 30, 1997 total of
$206,661,000. The decrease was primarily due to purchases of property and
equipment to facilitate the expansion of SVGL's manufacturing capacity and was
partially offset by cash generated from operating activities.
On November 26, 1997, the Company acquired Tinsley Laboratories, Inc. ("TLI") in
exchange for approximately 1,091,000 shares of the Company's Common Stock. TLI
designs, manufactures and sells precision optical components, assemblies and
systems to customers in a variety of industries and research endeavors. The
transaction was accounted for as a pooling of interests for financial reporting
purposes.
On June 30, 1998, the Company entered into an unsecured $150,000,000 bank
revolving line of credit agreement which expires June 30, 2001. Advances under
the line bear interest at the Prime Rate or 0.65% to 1.50% over LIBOR. The
agreement includes covenants regarding liquidity, profitability, leverage,
coverage of certain charges and minimum net worth and prohibits the payment of
cash dividends. At August 11, 1998, there were no borrowings outstanding under
the facility.
The Company believes that it has sufficient working capital and available bank
credit to sustain operations and provide for the expansion of its business for
the next twelve months.*
18
<PAGE> 19
PART II. OTHER INFORMATION
SILICON VALLEY GROUP, INC.
ITEM 1. LEGAL PROCEEDINGS.
None.
ITEM 2. CHANGES IN SECURITIES.
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES.
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
None.
ITEM 5. OTHER INFORMATION.
None.
19
<PAGE> 20
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits.
10.46 Credit agreement dated as of June 30, 1998 among
Silicon Valley Group, Inc. and the Lenders named
therein and ABN AMRO Bank, N.V., as Agent.
27.0 Financial Data Schedule for the fiscal quarter ended
June 30, 1998.
(a) Reports on Form 8-K.
None.
20
<PAGE> 21
SILICON VALLEY GROUP, INC.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
SILICON VALLEY GROUP, INC.
...........................
(Registrant)
Date: August 11, 1998 By:/s/ Papken S. Der Torossian
-----------------------
Papken S. Der Torossian
Chief Executive Officer and
Chairman of the Board
Date: August 11, 1998 By:/s/ Russell G. Weinstock
--------------------
Russell G. Weinstock
Vice President Finance and
Chief Financial Officer
21
<PAGE> 22
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
- ------- -------
<S> <C>
10.46 Credit agreement dated as of June 30, 1998 among Silicon Valley
Group, Inc. and the Lenders named therein and ABN AMRO Bank, N.V.,
as agent.
27.0 Financial Data Schedule for the fiscal quarter ended June 30,
1998.
</TABLE>
<PAGE> 1
Exhibit 10.46
EXECUTION VERSION
================================================================================
CREDIT AGREEMENT
AMONG
SILICON VALLEY GROUP, INC.
AND
LENDERS NAMED HEREIN
AND
ABN AMRO BANK N.V.,
AS AGENT FOR LENDERS
JUNE 30, 1998
================================================================================
<PAGE> 2
<TABLE>
<CAPTION>
PAGE
<S> <C>
SECTION I. INTERPRETATION.............................................1
1.01. Definitions....................................................1
1.02. GAAP..........................................................18
1.03. Headings......................................................18
1.04. Plural Terms..................................................18
1.05. Time..........................................................18
1.06. Governing Law.................................................18
1.07. Construction..................................................18
1.08. Entire Agreement..............................................18
1.09. Calculation of Interest and Fees..............................19
1.10. References....................................................19
1.11. Other Interpretive Provisions.................................19
SECTION II. CREDIT FACILITIES.........................................20
2.01. Loan Facility.................................................20
2.02. Letter of Credit Facility.....................................23
2.03. Amount Limitations, Commitment Reductions, Etc................28
2.04. Fees..........................................................29
2.05. Prepayments...................................................30
2.06. Other Payment Terms...........................................30
2.07. Loan Accounts; Notes..........................................31
2.08. Loan Funding..................................................32
2.09. Pro rata Treatment............................................32
2.10. Change of Circumstances.......................................34
2.11. Taxes on Payments.............................................36
2.12. Funding Loss Indemnification..................................37
2.13. Replacement of Lenders........................................38
2.14. Limitation on Collection of Costs.............................38
SECTION III. CONDITIONS PRECEDENT......................................38
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
<S> <C>
3.01. Initial Conditions Precedent..................................38
3.02. Conditions Precedent to Each Credit Event.....................39
3.03. Covenant to Deliver...........................................39
SECTION IV. REPRESENTATIONS AND WARRANTIES............................39
4.01. Borrower's Representations and Warranties.....................39
4.02. Reaffirmation.................................................44
SECTION V. COVENANTS.................................................44
5.01. Affirmative Covenants.........................................44
5.02. Negative Covenants............................................47
5.03. Financial Covenants...........................................54
SECTION VI. DEFAULT...................................................56
6.01. Events of Default.............................................56
6.02. Remedies......................................................58
SECTION VII. THE AGENT AND RELATIONS AMONG LENDERS.....................59
7.01. Appointment, Powers and Immunities............................59
7.02. Reliance by Agent.............................................59
7.03. Defaults......................................................59
7.04. Indemnification...............................................60
7.05. Non-Reliance..................................................60
7.06. Resignation or Removal of Agent...............................61
7.07. Authorization.................................................61
7.08. Agent in its Individual Capacity..............................61
SECTION VIII. MISCELLANEOUS.............................................61
8.01. Notices.......................................................61
8.02. Expenses......................................................62
8.03. Indemnification...............................................63
8.04. Waivers; Amendments...........................................63
8.05. Successors and Assigns........................................64
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
<S> <C>
8.06. Setoff........................................................67
8.07. No Third Party Rights.........................................67
8.08. Partial Invalidity............................................67
8.09. Jury Trial....................................................67
8.10. Confidentiality...............................................67
8.11. Counterparts..................................................68
</TABLE>
SCHEDULES
I Lenders
II Pricing Grid
3.01 Initial Conditions Precedent
4.01(q) Subsidiaries
5.02(e) Existing Investments
EXHIBITS
A Notice of Borrowing (2.01(b))
B Notice of Conversion (2.01(d))
C Notice of Interest Period Selection (2.01(e))
D Extension Request (2.01(h)
E Note (2.07(a))
F Assignment Agreement (8.05(c))
iii
<PAGE> 5
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of June 30, 1998, is entered into by and
among:
(1) SILICON VALLEY GROUP, INC., a Delaware corporation
("Borrower");
(2) Each of the financial institutions from time to time listed
in Schedule I hereto, as amended from time to time (such financial
institutions to be referred to herein collectively as "Lenders"); and
(3) ABN AMRO BANK N.V., acting through its San Francisco
International Branch, as agent for Lenders (in such capacity, "Agent").
RECITALS
A. Borrower has requested Lenders to provide certain credit facilities
to Borrower.
B. Lenders are willing to provide such credit facilities upon the terms
and subject to the conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION I. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or any
other Credit Document, each term set forth below, when used in this Agreement or
any other Credit Document, shall have the respective meaning given to that term
below or in the provision of this Agreement or other document, instrument or
agreement referenced below.
"ABN AMRO" shall mean ABN AMRO Bank N.V.
"Accounts" shall mean, with respect to any Person, all accounts
receivable owned by such Person including all "accounts" within the
meaning of Section 9106 of the California Uniform Commercial Code and
"Account" shall mean any one of the Accounts.
"Acquisition Charge Cap" shall mean, as of any date of
calculation, the lesser of (a) $50,000,000 and (b) an amount equal to
five percent (5%) of Borrower's Tangible Net Worth on the last day of
the immediately preceding fiscal year.
<PAGE> 6
"Adjusted Net Income" shall mean, with respect to Borrower for any
period, the sum, determined on a consolidated basis in accordance with
GAAP where applicable, of:
(a) The net income or net loss of Borrower and its
Subsidiaries for such period after provision for income taxes;
plus
(b) To the extent deducted in calculating such net income
or net loss for such period under clause (a) above, all
non-recurring, non-cash charges taken by Borrower and its
Subsidiaries during such period in connection with acquisitions
permitted by Subparagraph 5.02(d) (including charges for the
write-off of in-process research and development costs relating
to such acquisitions); provided, however, that the sum of all
such charges so added to net income or net loss in calculating
the Adjusted Net Income of Borrower during the period from the
date of this Agreement through the Maturity Date shall not at any
time exceed the Acquisition Charge Cap at such time.
"Affiliate" shall mean, with respect to any Person, (a) each
Person that, directly or indirectly, owns or controls, whether
beneficially or as a trustee, guardian or other fiduciary, five percent
(5%) or more of any class of Equity Securities of such Person, (b) each
Person that controls, is controlled by or is under common control with
such Person or any Affiliate of such Person or (c) each of such Person's
officers, directors, joint venturers and partners; provided, however,
that in no case shall any Lender Party be deemed to be an Affiliate of
Borrower or any of its Subsidiaries for purposes of this Agreement. For
the purpose of this definition, "control" of a Person shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership
of voting securities, by contract or otherwise.
"Agent" shall have the meaning given to that term in clause (3)
of the introductory paragraph hereof.
"Agent's Fee Letter" shall mean the letter agreement dated as of
April 16, 1998, between Borrower and Agent regarding certain fees
payable by Borrower to Agent.
"Agreement" shall mean this Credit Agreement.
"Applicable Lending Office" shall mean, with respect to any
Lender, (a) in the case of its Base Rate Loans, its Domestic Lending
Office, and (b) in the case of its LIBOR Loans, its Euro-Dollar Lending
Office.
"Applicable Margin" shall mean, with respect to any Loan during
any Pricing Period, the per annum margin for such Loan during such
Pricing Period determined pursuant to the Pricing Grid and added to the
Base Rate or LIBO Rate, as the case may be, for such Loan; provided,
however, that each Applicable Margin determined pursuant
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<PAGE> 7
to the Pricing Grid shall be increased by two percent (2.00%) at the
option of Agent or the Required Lenders on the date an Event of Default
occurs and shall continue at such increased rate unless and until such
Event of Default is waived in accordance with this Agreement.
"Assignee Lender" shall have the meaning given to that term in
Subparagraph 8.05(c).
"Assignment" shall have the meaning given to that term in
Subparagraph 8.05(c).
"Assignment Agreement" shall have the meaning given to that term
in Subparagraph 8.05(c).
"Assignment Effective Date" shall have, with respect to each
Assignment Agreement, the meaning set forth therein.
"Assignor Lender" shall have the meaning given to that term in
Subparagraph 8.05(c).
"Base Rate" shall mean, on any day, the greater of (a) the Prime
Rate in effect on such date and (b) the Federal Funds Rate for such day
plus one-half percent (0.50%).
"Base Rate Loan" shall mean, at any time, a Loan which then bears
interest as provided in clause (i) of Subparagraph 2.01(c).
"Borrower" shall have the meaning given to that term in clause
(1) of the introductory paragraph hereof.
"Borrowing" shall mean a borrowing by Borrower consisting of the
Loans made by each of the Lenders on the same date and of the same Type
pursuant to a single Notice of Borrowing.
"Business Day" shall mean any day on which (a) commercial banks
are not authorized or required to close in San Francisco, California,
Chicago, Illinois or New York, New York and (b) if such Business Day is
related to a LIBOR Loan, dealings in Dollar deposits are carried out in
the London interbank market.
"Capital Adequacy Requirement" shall have the meaning given to
that term in Subparagraph 2.10(d).
"Capital Asset" shall mean, with respect to any Person, any
tangible fixed or capital asset owned or, in the case of a Capital Lease
or "synthetic" lease, leased by such Person, and any expense incurred by
such Person that is required by GAAP to be reported as a non-current
asset on such Person's balance sheet.
"Capital Expenditures" shall mean, with respect to any Person and
any period, all amounts expended by such Person during such period for
the acquisition of Capital
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<PAGE> 8
Assets (including all amounts paid or accrued on Capital Leases and
"synthetic" leases and other Indebtedness incurred or assumed to acquire
Capital Assets).
"Capital Leases" shall mean any and all lease obligations that,
in accordance with GAAP, are required to be capitalized on the books of
a lessee.
"Change of Control" shall mean the occurrence of any of the
following events: (a) any person or group of persons (within the meaning
of Section 13 or 14 of the Securities Exchange Act of 1934, as amended)
shall (i) acquire beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended) of thirty percent (30%) or
more of the outstanding Equity Securities of Borrower entitled to vote
for members of the board of directors, or (ii) acquire all or
substantially all of the assets of Borrower and its Subsidiaries taken
as a whole, or (b) during any period of twelve (12) consecutive calendar
months, individuals who are directors of Borrower on the first day of
such period ("Initial Directors") and any directors of Borrower who are
specifically approved by two-thirds of the Initial Directors and
previously-approved Directors ("Approved Directors") shall cease to
constitute a majority of the Board of Directors of Borrower before the
end of such period.
"Change of Law" shall have the meaning given to that term in
Subparagraph 2.10(b).
"Closing Date" shall mean the date, not later than June 30, 1998,
designated by Borrower in the initial Notice of Borrowing as the date
for the initial Borrowing.
"Commitment" shall mean, with respect to each Lender, the Dollar
amount set forth under the caption "Commitment" opposite such Lender's
name on Part A of Schedule I, or, if changed, such Dollar amount as may
be set forth for such Lender in the Register. "Commitments" shall mean,
collectively, the Commitments of all Lenders and, if the context so
permits, the LC Commitment of Issuing Bank.
"Commitment Fee Rate" shall mean, during any Pricing Period, the
per annum rate for such Pricing Period determined pursuant to the
Pricing Grid.
"Commitment Fees" shall have the meaning given to that term in
Subparagraph 2.04(b).
"Compliance Certificate" shall have the meaning given to that
term in Subparagraph 5.01(a).
"Contingent Obligation" shall mean, with respect to any Person,
(a) any Guaranty Obligation of that Person; and (b) any direct or
indirect obligation or liability, contingent or otherwise, of that
Person in respect of any Surety Instrument issued for the account of
that Person or as to which that Person is otherwise liable for
reimbursement of drawings or payments, (iii) to purchase any materials,
supplies or other property from, or to obtain
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<PAGE> 9
the services of, another Person if the relevant contract or other
related document or obligation requires that payment for such materials,
supplies or other property, or for such services, shall be made
regardless of whether delivery of such materials, supplies or other
property is ever made or tendered, or such services are ever performed
or tendered, or (iv) in respect to any Rate Contract that is not entered
into in connection with a bona fide hedging operation that provides
offsetting benefits to such Person. The amount of any Contingent
Obligation shall (subject, in the case of Guaranty Obligations, to the
last sentence of the definition of "Guaranty Obligation") be deemed
equal to the maximum reasonably anticipated liability in respect
thereof, and shall, with respect to item (b)(iv) of this definition be
marked to market on a current basis.
"Contractual Obligation" of any Person shall mean, any indenture,
note, lease, loan agreement, security, deed of trust, mortgage, security
agreement, guaranty, instrument, contract, agreement or other form of
contractual obligation or undertaking to which such Person is a party or
by which such Person or any of its property is bound.
"Credit Documents" shall mean and include this Agreement, the
Notes , all Rate Contracts of Borrower with any Lender related to any
Loan, the LC Applications, the Letters of Credit and the Agent's Fee
Letter; all other documents, instruments and agreements delivered to any
Lender Party pursuant to Paragraph 3.01; and all other documents,
instruments and agreements delivered by Borrower or any of its
Subsidiaries to any Lender Party in connection with this Agreement on or
after the date of this Agreement.
"Credit Event" shall mean the making of any Loan; the conversion
of any Loan into a LIBOR Loan; the selection of a new Interest Period
for any LIBOR Loan; or the issuance of any Letter of Credit or any
amendment of any Letter of Credit that increases its stated amount or
extends its expiration date.
"Default" shall mean an Event of Default or any event or
circumstance not yet constituting an Event of Default which, with the
giving of any notice or the lapse of any period of time or both, would
become an Event of Default.
"Defaulting Lender" shall mean a Lender which has failed to fund
its portion of any Borrowing or any Reimbursement Obligation which it is
required to fund under this Agreement and has continued in such failure
for three (3) Business Days after written notice from Agent.
"Disclosure Letter" shall mean the letter from Borrower to Agent,
dated the date of this Agreement, which is identified as the "Disclosure
Letter" under this Agreement.
"Dollars" and "$" shall mean the lawful currency of the United
States of America and, in relation to any payment under this Agreement,
same day or immediately available funds.
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<PAGE> 10
"Domestic Lending Office" shall mean, with respect to any Lender,
(a) initially, its office designated as such in Part B of Schedule I
(or, in the case of any Lender which becomes a Lender by an assignment
pursuant to Subparagraph 8.05(c), its office designated as such in the
applicable Assignment Agreement) and (b) subsequently, such other office
or offices as such Lender may designate to Agent as the office at which
such Lender's Base Rate Loans will thereafter be maintained and for the
account of which all payments of principal of, and interest on, such
Lender's Base Rate Loans will thereafter be made.
"Drawing Payment" shall have the meaning given to that term in
Subparagraph 2.02(c).
"EBITDA" shall mean, with respect to Borrower for any period, the
sum, determined on a consolidated basis in accordance with GAAP, of the
following:
(a) The net income or net loss of Borrower for such period
before provision for income taxes;
plus
(b) To the extent deducted in calculating such net income
or net loss for such period under clause (a) above, the sum of
(i) all Interest Expenses of Borrower and its Subsidiaries
accruing during such period and (ii) all depreciation and
amortization expenses of Borrower and its Subsidiaries accruing
during such period;
minus
(c) To the extent added in calculating such net income or
net loss for such period under clause (a) above, all interest
income of Borrower and its Subsidiaries accruing during such
period;
plus
(d) To the extent deducted in calculating such net income
or net loss for such period under clause (a) above, all
non-recurring, non-cash charges taken by Borrower and its
Subsidiaries during such period in connection with acquisitions
permitted by Subparagraph 5.02(d) (including charges for the
write-off of in-process research and development costs relating
to such acquisitions); provided, however, that the sum of all
such charges so added to net income or net loss in calculating
the EBITDA of Borrower during the period from the date of this
Agreement through the Maturity Date shall not at any time exceed
the Acquisition Charge Cap at such time;
plus
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<PAGE> 11
(e) In calculating EBITDA of Borrower for any period that
includes the fiscal quarter ending June 30, 1997, the lesser of
(i) the sum (to the extent deducted in calculating net income or
net loss for such period under clause (a) above) of all charges
taken by Borrower during the fiscal quarter ending June 30, 1997
in connection with the IBM royalty settlement and (ii)
$32,000,000.
"Eligible Assignee" shall mean (a) a commercial bank organized
under the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $100,000,000; (b) a commercial
bank organized under the laws of any other country or a political
subdivision thereof and having a combined capital and surplus of at
least $100,000,000, provided that such bank is acting through a branch
or agency located in the United States; or (c) a Person that is (i) a
Subsidiary of a Lender, (ii) a Subsidiary of a Person of which a Lender
is a Subsidiary, or (iii) a Person of which a Lender is a Subsidiary.
"Employee Benefit Plan" shall mean any employee benefit plan
within the meaning of section 3(3) of ERISA maintained or contributed to
by Borrower or any ERISA Affiliate, other than a Multiemployer Plan.
"Environmental Laws" shall mean the Clean Air Act, 42 U.S.C.
Section 7401 et seq.; the Federal Water Pollution Control Act, 33 U.S.C.
Section 1251 et seq.; the Resource Conservation and Recovery Act of
1976, 42 U.S.C. Section 6901 et seq.; the Comprehensive Environment
Response, Compensation and Liability Act of 1980 (including the
Superfund Amendments and Reauthorization Act of 1986, "CERCLA"), 42
U.S.C. Section 9601 et seq.; the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq.; the Occupational Safety and Health Act, 29 U.S.C.
Section 651; the Emergency Planning and Community Right-to-Know Act of
1986, 42 U.S.C. Section 11001 et seq.; the Mine Safety and Health Act of
1977, 30 U.S.C. Section 801 et seq.; the Safe Drinking Water Act, 42
U.S.C. Section 300f et seq.; and all other Governmental Rules relating
to the protection of human health and the environment, including all
Governmental Rules pertaining to the reporting, licensing, permitting,
transportation, storage, disposal, investigation or remediation of
emissions, discharges, releases, or threatened releases of Hazardous
Materials into the air, surface water, groundwater, or land, or relating
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transportation or handling of Hazardous Materials.
"Equity Securities" of any Person shall mean (a) all common
stock, preferred stock, participations, shares, partnership interests or
other equity interests in and of such Person (regardless of how
designated and whether or not voting or non-voting) and (b) all
warrants, options and other rights to acquire any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may from time to time be amended or supplemented,
including any rules or regulations issued in connection therewith.
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<PAGE> 12
"ERISA Affiliate" shall mean any Person which is treated as a
single employer with Borrower under Section 414 of the IRC.
"Euro-Dollar Lending Office" shall mean, with respect to any
Lender, (a) initially, its office designated as such in Part B of
Schedule I (or, in the case of any Lender which becomes a Lender by an
assignment pursuant to Subparagraph 8.05(c), its office designated as
such in the applicable Assignment Agreement) and (b) subsequently, such
other office or offices as such Lender may designate to Agent as the
office at which such Lender's LIBOR Loans will thereafter be maintained
and for the account of which all payments of principal of, and interest
on, such Lender's LIBOR Loans will thereafter be made.
"Event of Default" shall have the meaning given to that term in
Paragraph 6.01.
"Extension Request" shall have the meaning given to that term in
Subparagraph 2.01(h).
"Federal Funds Rate" shall mean, for any day, the rate per annum
set forth in the weekly statistical release designated as H.15(519), or
any successor publication, published by the Federal Reserve Board
(including any such successor publication, "H.15 (519)") for such day
opposite the caption "Federal Funds (Effective)". If on any relevant
day, such rate is not yet published in H.15 (519), the rate for such day
shall be the rate set forth in the daily statistical release designated
as the Composite 3:30 p.m. Quotations for U.S. Government Securities, or
any successor publication, published by the Federal Reserve Bank of New
York (including any such successor publication, the "Composite 3:30 p.m.
Quotations") for such day under the caption "Federal Funds Effective
Rate". If on any relevant day, such rate is not yet published in either
H.15 (519) or the Composite 3:30 p.m. Quotations, the rate for such day
shall be the arithmetic means, as determined by Agent, of the rates
quoted to Agent for such day by three (3) Federal funds brokers of
recognized standing selected by Agent.
"Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System.
Financial Standby Letter of Credit" shall have the meaning given
to that term in Section III.D.1.d. of Appendix A to Regulation Y issued
by the Federal Reserve Board.
"Financial Statements" shall mean, with respect to any accounting
period for any Person, statements of income, shareholders' equity and
cash flows of such Person for such period, and a balance sheet of such
Person as of the end of such period, setting forth in each case in
comparative form figures for the corresponding period in the preceding
fiscal year if such period is less than a full fiscal year or, if such
period is a full fiscal year, corresponding figures from the preceding
annual audit, all prepared in reasonable detail and in accordance with
GAAP.
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<PAGE> 13
"Fixed Charge Coverage Ratio" shall mean, with respect to
Borrower for any period, the ratio, determined on a consolidated basis
in accordance with GAAP, of:
(a) The sum of (i) Borrower's EBITDA for such period plus
(ii) to the extent deducted in calculating such EBITDA for such
period, all operating lease and "synthetic" lease payments of
Borrower and its Subsidiaries for such period;
to
(b) The sum of (i) to the extent deducted in calculating
such EBITDA for such period, all Interest Expenses of Borrower
and its Subsidiaries for such period, plus (ii) to the extent
deducted in calculating such EBITDA for such period, all
operating lease and "synthetic" lease payments of Borrower and
its Subsidiaries for such period, plus (iii) the aggregate
principal amount of all long-term Indebtedness of Borrower and
its Subsidiaries that matures during the consecutive four-quarter
period immediately following such period, plus (iv) twenty
percent (20%) of the Outstanding Credit on the last day of such
period;
Provided, however, that, in calculating Borrower's Fixed Charge Coverage
Ratio for the quarter ending on March 31, 1999, the consecutive
two-quarter period ending on June 30, 1999 and the consecutive
three-quarter period ending on September 30, 1999, the amounts to be
used in clauses (a)(i), (a)(ii), (b)(i) and (b)(ii) shall be the actual
respective amounts for such periods annualized.
"GAAP" shall mean generally accepted accounting principles and
practices as in effect in the United States of America from time to
time, consistently applied.
"Governmental Authority" shall mean any domestic or foreign
national, state or local government, any political subdivision thereof,
any department, agency, authority or bureau of any of the foregoing, or
any other entity exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to government, including,
without limitation, the Federal Deposit Insurance Corporation, the
Federal Reserve Board, the Comptroller of the Currency, any central bank
or any comparable authority.
"Governmental Charges" shall mean, with respect to any Person,
all levies, assessments, fees, claims or other charges imposed by any
Governmental Authority upon such Person or any of its property or
otherwise payable by such Person.
"Governmental Rule" shall mean any law, rule, regulation,
ordinance, order, code interpretation, judgment, decree, directive,
guidelines, policy or similar form of decision of any Governmental
Authority.
"Guaranty Obligation" shall mean, with respect to any Person, any
direct or indirect liability of that Person with respect to any
indebtedness, lease, dividend, letter of credit or other obligation (the
"primary obligations") of another Person (the "primary obligor"),
including any obligation of that Person, whether or not contingent, (a)
to
9
<PAGE> 14
purchase, repurchase or otherwise acquire such primary obligations or
any property constituting direct or indirect security therefor, or (b)
to advance or provide funds (i) for the payment or discharge of any such
primary obligation, or (ii) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet item, level of income or financial
condition of the primary obligor, or (c) to purchase property,
securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to
make payment of such primary obligation, or (d) otherwise to assure or
hold harmless the holder of any such primary obligation against loss in
respect thereof. The amount of any Guaranty Obligation shall be deemed
equal to the stated or determinable amount of the primary obligation in
respect of which such Guaranty Obligation is made or, if not stated or
if indeterminable, the maximum reasonably anticipated liability in
respect thereof.
"Hazardous Materials" shall mean all pollutants, contaminants and
other materials, substances and wastes which are hazardous, toxic,
caustic, harmful or dangerous to human health or the environment,
including petroleum and petroleum products and byproducts, radioactive
materials, asbestos, polychlorinated biphenyls and all materials,
substances and wastes which are classified or regulated as "hazardous,"
"toxic" or similar descriptions under any Environmental Law.
"Indebtedness" of any Person shall mean, without duplication:
(a) All obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments and all other
obligations of such Person for borrowed money (including
obligations to repurchase receivables and other assets sold with
recourse);
(b) All obligations of such Person for the deferred
purchase price of property or services (including obligations
under letters of credit and other credit facilities which secure
or finance such purchase price and obligations under "synthetic"
leases);
(c) All obligations of such Person under conditional sale
or other title retention agreements with respect to property
acquired by such Person (to the extent of the value of such
property if the rights and remedies of the seller or lender under
such agreement in the event of default are limited solely to
repossession or sale of such property);
(d) All obligations of such Person as lessee under or with
respect to Capital Leases;
(e) All obligations of such Person, contingent or
otherwise, under or with respect to Surety Instruments;
(f) All obligations of such Person, contingent or
otherwise, under or with respect to Rate Contracts;
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<PAGE> 15
(g) All Guaranty Obligations of such Person with respect
to the obligations of other Persons of the types described in
clauses (a) - (f) above and all other Contingent Obligations of
such Person; and
(h) All obligations of other Persons of the types
described in clauses (a) - (f) above to the extent secured by (or
for which any holder of such obligations has an existing right,
contingent or otherwise, to be secured by) any Lien in any
property (including accounts and contract rights) of such Person,
even though such Person has not assumed or become liable for the
payment of such obligations.
"Interest Expenses" shall mean, with respect to Borrower and its
Subsidiaries for any period, the sum, determined on a consolidated basis
in accordance with GAAP, of (a) all interest accrued on the Indebtedness
of Borrower and its Subsidiaries during such period (including interest
attributable to Capital Leases and imputed interest on zero-coupon,
original issue discount and other similar instruments) and (b) all
letter of credit fees payable by Borrower and its Subsidiaries accrued
during such period.
"Interest Period" shall mean, with respect to any LIBOR Loan, the
time period selected by Borrower pursuant to Subparagraph 2.01(b) or
Subparagraph 2.01(d) which commences on the first day of such Loan or
the effective date of any conversion and ends on the last day of such
time period, and thereafter, each subsequent time period selected by
Borrower pursuant to Subparagraph 2.01(e) which commences on the last
day of the immediately preceding time period and ends on the last day of
that time period.
"Investment" of any Person shall mean any loan or advance of
funds by such Person to any other Person (other than advances to
employees of such Person for moving and travel expenses, drawing
accounts and similar expenditures in the ordinary course of business),
any purchase or other acquisition of any Equity Securities or
Indebtedness of any other Person, any capital contribution by such
Person to or any other investment by such Person in any other Person;
provided, however, that Investments shall not include (a) accounts
receivable or other indebtedness owed by customers of such Person which
are current assets and arose from sales of inventory in the ordinary
course of such Person's business or (b) prepaid expenses of such Person
incurred and prepaid in the ordinary course of business.
"IRC" shall mean the Internal Revenue Code of 1986.
"Issuing Bank" shall have the meaning given to that term in
Subparagraph 2.02(a).
"LC Application" shall have the meaning given to that term in
Subparagraph 2.02(b).
"LC Commitment" shall mean Ten Million Dollars ($10,000,000).
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<PAGE> 16
"LC Facility Expiration Date" shall have the meaning given to
that term in Subparagraph 2.02(a).
"LC Issuance Fees" shall have the meaning given to that term in
Subparagraph 2.04(c).
"LC Usage Fees" shall have the meaning given to that term in
Subparagraph 2.04(c).
"LC Usage Fee Rate" shall mean (a) with respect to any Financial
Standby Letter of Credit during any Pricing Period, the per annum rate
for Financial Letters of Credit during such Pricing Period determined
pursuant to the Pricing Grid and (b) with respect to any Performance
Standby Letter of Credit during any Pricing Period, the per annum rate
for Performance Letters of Credit during such Pricing Period determined
pursuant to the Pricing Grid.
"Lender Parties" shall mean Lenders, Agent and Issuing Bank.
"Lenders" shall have the meaning given to that term in clause (2)
of the introductory paragraph hereof.
"Letter of Credit" shall have the meaning given to that term in
Subparagraph 2.02(a).
"Leverage Ratio" shall mean, with respect to Borrower at any
time, the ratio, determined on a consolidated basis in accordance with
GAAP, of (a) the Senior Indebtedness of Borrower and its Subsidiaries at
such time to (b) the Total Capital of Borrower and its Subsidiaries at
such time.
"LIBO Rate" shall mean, with respect to any Interest Period for
the LIBOR Loans in any Borrowing consisting of LIBOR Loans, a rate per
annum equal to the quotient (rounded upward if necessary to the nearest
1/100 of one percent) of (a) the arithmetic mean (rounded upward if
necessary to the nearest 1/16 of one percent) of the rates per annum
appearing on the Telerate Page 3750 (or any successor publication) on
the second Business Day prior to the first day of such Interest Period
at or about 11:00 A.M. (London time) (for delivery on the first day of
such Interest Period) for a term comparable to such Interest Period,
divided by (b) one minus the Reserve Requirement for such Loans in
effect from time to time. If for any reason rates are not available as
provided in clause (a) of the preceding sentence, the rate to be used in
clause (a) shall be the rate per annum at which Dollar deposits are
offered to Agent in the London interbank eurodollar currency market on
the second Business Day prior to the commencement of such Interest
Period at or about 10:00 A.M. (New York time) (for delivery on the first
day of such Interest Period) in an amount substantially equal to Agent's
Proportionate Share of such Borrowing and for a term comparable to such
Interest Period. The LIBO Rate shall be adjusted automatically as to all
LIBOR Loans then outstanding as of the effective date of any change in
the Reserve Requirement.
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<PAGE> 17
"LIBOR Loan" shall mean, at any time, a Loan which then bears
interest as provided in clause (ii) of Subparagraph 2.01(c).
"Lien" shall mean, with respect to any property, any security
interest, mortgage, pledge, lien, charge or other encumbrance in, of, or
on such property or the income therefrom, including, without limitation,
the interest of a vendor or lessor under a conditional sale agreement,
Capital Lease or other title retention agreement, or any agreement to
provide any of the foregoing, and the filing of any financing statement
or similar instrument under the Uniform Commercial Code or comparable
law of any jurisdiction.
"Loan" shall have the meaning given to that term in Subparagraph
2.01(a).
"Loan Account" shall have the meaning given to that term in
Subparagraph 2.07(a).
"Margin Stock" shall have the meaning given to that term in
Regulation U issued by the Federal Reserve Board.
"Material Adverse Effect" shall mean a material adverse effect on
(a) the business, assets, operations, prospects or financial or other
condition of Borrower and its Subsidiaries, taken as a whole; (b) the
ability of Borrower to pay or perform the Obligations in accordance with
the terms of this Agreement and the other Credit Documents; or (c) the
rights and remedies of any Lender Party under this Agreement, the other
Credit Documents or any related document, instrument or agreement.
"Material Subsidiary" shall mean SVGL, SVGIS, Tinsley, and any
other Subsidiary which at any time has assets with a book value equal to
or greater than ten percent (10%) of the total consolidated assets of
Borrower and its Subsidiaries and any Subsidiary which owns more than
ten percent (10%) of the capital stock of any Material Subsidiary.
"maturity" shall mean, with respect to any Loan, Reimbursement
Payment, interest, fee or other amount payable by Borrower under this
Agreement or the other Credit Documents, the date such Loan,
Reimbursement Payment, interest, fee or other amount becomes due,
whether upon the stated maturity or due date, upon acceleration or
otherwise.
"Maturity Date" shall mean June 30, 2001 or, if such date is
extended from time to time pursuant to Subparagraph 2.01(h), any later
date to which so extended.
"Multiemployer Plan" shall mean any multiemployer plan within the
meaning of section 3(37) of ERISA maintained or contributed to by
Borrower or any ERISA Affiliate.
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<PAGE> 18
"Net Proceeds" shall mean, with respect to any issuance of Equity
Securities by Borrower or any of its Subsidiaries, the aggregate
consideration received by Borrower or such Subsidiary from such issuance
less the sum of the actual amount of the reasonable fees and commissions
payable to Persons other than Borrower or any Affiliate of Borrower and
the other reasonable costs and expenses (including reasonable legal
expenses) directly related to such issuance that are to be paid by
Borrower or any of its Subsidiaries.
"Note" shall have the meaning given to that term in Subparagraph
2.07(b).
"Notice of Borrowing" shall have the meaning given to that term
in Subparagraph 2.01(b).
"Notice of Conversion" shall have the meaning given to that term
in Subparagraph 2.01(d).
"Notice of Interest Period Selection" shall have the meaning
given to that term in Subparagraph 2.01(e).
"Obligations" shall mean and include, with respect to Borrower,
all loans, advances, debts, liabilities, and obligations, howsoever
arising, owed by Borrower to any Lender Party of every kind and
description (whether or not evidenced by any note or instrument and
whether or not for the payment of money), direct or indirect, absolute
or contingent, due or to become due, now existing or hereafter arising
pursuant to the terms of this Agreement or any of the other Credit
Documents, including without limitation all interest, fees, charges,
expenses, attorneys' fees and accountants' fees chargeable to Borrower
or payable by Borrower hereunder or thereunder.
"Outstanding Credit" shall mean, at any time, the sum of (a) the
aggregate principal amount of all Loans outstanding at such time, (b)
the aggregate amount available for drawing under all Letters of Credit
outstanding at such time and (c) the aggregate amount of all
Reimbursement Obligation outstanding at such time.
"Participant" shall have the meaning given to that term in
Subparagraph 8.05(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
Performance Standby Letter of Credit" shall have the meaning
given to that term in Section III.D.1.d. of Appendix A to Regulation Y
issued by the Federal Reserve Board.
"Permitted Indebtedness" shall have the meaning given to that
term in Subparagraph 5.02(a).
"Permitted Liens" shall have the meaning given to that term in
Subparagraph 5.02(b).
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"Person" shall mean and include an individual, a partnership, a
corporation (including a business trust), a joint stock company, an
unincorporated association, a limited liability company, a joint
venture, a trust or other entity or a Governmental Authority.
"Pricing Grid" shall mean Schedule II.
"Pricing Period" shall mean (a) the period commencing on the date
of this Agreement and ending on June 30, 1998, (b) the three-calendar
month period commencing July 1, 1998 and ending September 30, 1998 and
(c) each consecutive three-calendar month period thereafter which
commences on the day following the last day of the immediately preceding
three-calendar month period and ends on the last day of that time
period.
"Prime Rate" shall mean the per annum rate publicly announced by
ABN AMRO from time to time at its office in Chicago, Illinois as its
"prime rate". The Prime Rate is determined by ABN AMRO from time to time
as a means of pricing credit extensions to some customers and is neither
directly tied to any external rate of interest or index nor necessarily
the lowest rate of interest charged by ABN AMRO at any given time for
any particular class of customers or credit extensions. Any change in
the Base Rate resulting from a change in the Prime Rate shall become
effective on the Business Day on which each change in the Prime Rate
occurs.
"Prior Credit Agreement" shall mean the Credit Agreement dated as
of December 7, 1995 among Borrower, SVG Lithography Systems, Inc., the
financial institutions parties thereto and ABN AMRO, as agent for such
financial institutions.
"Proportionate Share" shall mean:
(a) With respect to any Lender at any time prior to the
Maturity Date, the ratio (expressed as a percentage rounded to
the eighth digit to the right of the decimal point) of (i) such
Lender's Commitment at such time to (ii) the Total Commitment at
such time; and
(b) With respect to any Lender at any time after the
Maturity Date, the ratio (expressed as a percentage rounded to
the eighth digit to the right of the decimal point) of (i) such
Lender's Commitment on the Maturity Date to (ii) the Total
Commitment on the Maturity Date.
The initial Proportionate Share of each Lender is set forth under the
caption "Proportionate Share" opposite such Lender's name on Part A of
Schedule I.
"Quick Ratio" shall mean, with respect to Borrower at any time,
the ratio, determined on a consolidated basis in accordance with GAAP,
of:
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(a) The remainder at such time of (i) the sum of (A) all
cash of Borrower and its Subsidiaries, (B) the current market
value of all cash equivalents of Borrower and its Subsidiaries
and (C) all accounts receivable of Borrower and its Subsidiaries
(net of all reserves therefor) minus (ii) to the extent included
in the foregoing sum, the sum of all cash, cash equivalents and
accounts receivable of Borrower and its Subsidiaries that are
subject to a Lien or otherwise restricted;
to
(b) The sum at such time of (i) the current liabilities of
Borrower and its Subsidiaries and (ii) to the extent not included
in such current liabilities, the Outstanding Credit at such time;
Provided, however, that, in calculating the Quick Ratio of Borrower for
any date on or prior to September 30, 1998, only fifty percent (50%) of
the Outstanding Credit shall be included under clause (b)(ii) above.
"Rate Contracts" shall mean swap agreements (as that term is
defined in Section 101 of the Federal Bankruptcy Reform Act of 1978, as
amended) and any other agreements or arrangements designed to provide
protection against fluctuations in interest or currency exchange rates.
"Reimbursement Obligation" shall have the meaning given to that
term in Subparagraph 2.02(c).
"Reimbursement Payment" shall have the meaning given to that term
in Subparagraph 2.02(c).
"Register" shall have the meaning given to that term in
Subparagraph 8.05(d).
"Reportable Event" shall have the meaning given to that term in
ERISA and applicable regulations thereunder.
"Required Lenders" shall mean, at any time, Lenders whose
Proportionate Shares then equal or exceed sixty-six and two-thirds
percent (66 2/3%), except at any time any Lender is a Defaulting Lender.
At any time any Lender is a Defaulting Lender, all Defaulting Lenders
shall be excluded in determining "Required Lenders", and "Required
Lenders" shall mean non-defaulting Lenders having total Commitments that
then equal or exceed sixty-six and two-thirds percent (66 2/3%) of the
total Commitments of all non-defaulting Lenders.
"Requirement of Law" applicable to any Person shall mean (a) the
Articles or Certificate of Incorporation and By-laws, Partnership
Agreement or other organizational or governing documents of such Person,
(b) any Governmental Rule applicable to such Person, (c) any license,
permit, approval or other authorization granted by any Governmental
Authority to or for the benefit of such Person or (d) any judgment,
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<PAGE> 21
decision or determination of any Governmental Authority or arbitrator,
in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
"Reserve Requirement" shall mean, with respect to any day in an
Interest Period for a LIBOR Loan, the aggregate of the reserve
requirement rates (expressed as a decimal) in effect on such day for
eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D of the Federal Reserve Board) maintained by
a member bank of the Federal Reserve System. As used herein, the term
"reserve requirement" shall include, without limitation, any basic,
supplemental or emergency reserve requirements imposed on any Lender by
any Governmental Authority.
"Senior Indebtedness" shall mean, with respect to Borrower and
its Subsidiaries at any time, the remainder, determined on a
consolidated basis in accordance with GAAP, of (a) the total
Indebtedness of Borrower and its Subsidiaries at such time minus (b) the
total Subordinated Indebtedness of Borrower and its Subsidiaries at such
time.
"Solvent" shall mean, with respect to any Person on any date,
that on such date (a) the fair value of the property of such Person is
greater than the fair value of the liabilities (including contingent,
subordinated, matured and unliquidated liabilities) of such Person, (b)
the present fair saleable value of the assets of such Person is greater
than the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured, (c) such
Person does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Person's ability to pay as such debts
and liabilities mature and (d) such Person is not engaged in or about to
engage in business or transactions for which such Person's property
would constitute an unreasonably small capital.
"Subordinated Indebtedness" shall mean Indebtedness which is
unsecured and subordinated to the Obligations on terms reasonably
acceptable to Agent and the Required Lenders.
"Subsidiary" of any Person shall mean (a) any corporation of
which more than 50% of the issued and outstanding Equity Securities
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall or
might have voting power upon the occurrence of any contingency) is at
the time directly or indirectly owned or controlled by such Person, by
such Person and one or more of its other Subsidiaries or by one or more
of such Person's other Subsidiaries, (b) any partnership, joint venture,
limited liability company or other association of which more than 50% of
the equity interest having the power to vote, direct or control the
management of such partnership, joint venture or other association is at
the time owned and controlled by such Person, by such Person and one or
more of the other Subsidiaries or by one or more of such Person's other
Subsidiaries or (c) any other Person included in the Financial
Statements of such Person on a consolidated basis.
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"Surety Instruments" shall mean all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties, shipside
bonds, surety bonds and similar instruments.
"SVGL" shall mean SVG Lithography Systems, Inc., a Delaware
corporation.
"SVGIS" shall mean SVG International Service, a California
corporation.
"Tangible Net Worth" shall mean, with respect to Borrower at any
time, the remainder at such time, determined on a consolidated basis in
accordance with GAAP, of (a) the total assets of Borrower and its
Subsidiaries minus (b) the sum (without limitation and without
duplication of deductions) of (i) the total liabilities of Borrower and
its Subsidiaries, (ii) all reserves established by Borrower and its
Subsidiaries for anticipated losses and expenses (to the extent not
deducted in calculating total assets in clause (a) above), and (iii) all
intangible assets of Borrower and its Subsidiaries (to the extent
included in calculating total assets in clause (a) above), including,
without limitation, goodwill (including any amounts, however designated
on the balance sheet, representing the cost of acquisition of businesses
and investments in excess of underlying tangible assets), trademarks,
trademark rights, trade name rights, copyrights, patents, patent rights,
licenses, unamortized debt discount, marketing expenses, organizational
expenses, non-compete agreements and deferred research and development.
"Taxes" shall have the meaning given to such term in Subparagraph
2.11(a).
"Tinsley" shall mean Tinsley Laboratories, Inc., a California
corporation.
"Total Capital" shall mean, with respect to Borrower at any time,
the sum, determined on a consolidated basis in accordance with GAAP, of
(a) the total Indebtedness of Borrower and its Subsidiaries (including
Subordinated Indebtedness) at such time plus (b) the stockholders'
equity of Borrower and its Subsidiaries at such time.
"Total Commitment" shall mean, at any time, One Hundred, Fifty
Million Dollars ($150,000,000) or, if such amount is reduced pursuant to
Subparagraph 2.03(b), the amount to which so reduced and in effect at
such time.
"Type" shall mean, with respect to any Loan or Borrowing at any
time, the classification of such Loan or Borrowing by the type of
interest rate it then bears, whether an interest rate based upon the
Base Rate or the LIBO Rate.
"UCP" shall have the meaning given to that term in Subparagraph
2.02(a).
"Unused Commitment" shall mean, at any time, the remainder of (a)
the Total Commitment at such time minus (b) the sum of (i) the aggregate
principal amount of all Loans outstanding at such time plus (ii) the
aggregate amount of all Letters of Credit outstanding at such time.
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1.02. GAAP. Unless otherwise indicated in this Agreement or any other
Credit Document, all accounting terms used in this Agreement or any other Credit
Document shall be construed, and all accounting and financial computations
hereunder or thereunder shall be computed, in accordance with GAAP. If GAAP
changes during the term of this Agreement such that any covenants contained
herein would then be calculated in a different manner or with different
components, Borrower, Lenders and Agent agree to negotiate in good faith to
amend this Agreement in such respects as are necessary to conform those
covenants as criteria for evaluating Borrower's financial condition to
substantially the same criteria as were effective prior to such change in GAAP;
provided, however, that, until Borrower, Lenders and Agent so amend this
Agreement, all such covenants shall be calculated in accordance with GAAP as in
effect immediately prior to such change.
1.03. Headings. Headings in this Agreement and each of the other Credit
Documents are for convenience of reference only and are not part of the
substance hereof or thereof.
1.04. Plural Terms. All terms defined in this Agreement or any other Credit
Document in the singular form shall have comparable meanings when used in the
plural form and vice versa.
1.05. Time. All references in this Agreement and each of the other Credit
Documents to a time of day shall mean San Francisco, California time, unless
otherwise indicated.
1.06. Governing Law. Unless otherwise expressly provided in any Credit
Document, this Agreement and each of the other Credit Documents shall be
governed by and construed in accordance with the laws of the State of California
without reference to conflicts of law rules.
1.07. Construction. This Agreement is the result of negotiations among, and
has been reviewed by, Borrower, each Lender, Agent and their respective counsel.
Accordingly, this Agreement shall be deemed to be the product of all parties
hereto, and no ambiguity shall be construed in favor of or against Borrower, any
Lender or Agent.
1.08. Entire Agreement. This Agreement and each of the other Credit
Documents, taken together, constitute and contain the entire agreement of
Borrower, Lenders and Agent and supersede any and all prior agreements,
negotiations, correspondence, understandings and communications among the
parties, whether written or oral, respecting the subject matter hereof
(including the commitment letter dated as of April 16, 1998 between Borrower and
Agent but excluding the Agent's Fee Letter).
1.09. Calculation of Interest and Fees. All calculations of interest and
fees under this Agreement and the other Credit Documents for any period (a)
shall include the first day of such period and exclude the last day of such
period and (b) shall be calculated on the basis of a year of 360 days for actual
days elapsed, except that during any period any Loan bears interest based upon
the Prime Rate, such interest shall be calculated on the basis of a year of 365
or 366 days, as appropriate, for actual days elapsed.
1.10. References.
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(a) References in this Agreement to "Recitals," "Sections,"
"Paragraphs," "Subparagraphs," "Exhibits" and "Schedules" are to
recitals, sections, paragraphs, subparagraphs, exhibits and schedules
therein and thereto unless otherwise indicated.
(b) References in this Agreement or any other Credit Document to
any document, instrument or agreement (i) shall include all exhibits,
schedules and other attachments thereto, (ii) shall include all
documents, instruments or agreements issued or executed in replacement
thereof if such replacement is permitted hereby, and (iii) shall mean
such document, instrument or agreement, or replacement or predecessor
thereto, as amended, modified and supplemented from time to time and in
effect at any given time if such amendment, modification or supplement
is permitted hereby.
(c) References in this Agreement or any other Credit Document to
any Governmental Rule (i) shall include any successor Governmental Rule,
(ii) shall include all rules and regulations promulgated under such
Governmental Rule (or any successor Governmental Rule), and (iii) shall
mean such Governmental Rule (or successor Governmental Rule) and such
rules and regulations, as amended, modified, codified or reenacted from
time to time and in effect at any given time.
(d) References in this Agreement or any other Credit Document to
any Person in a particular capacity (i) shall include any permitted
successors to and assigns of such Person in that capacity and (ii) shall
exclude such Person individually or in any other capacity.
1.11. Other Interpretive Provisions. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement or any other
Credit Document shall refer to this Agreement or such other Credit Document, as
the case may be, as a whole and not to any particular provision of this
Agreement or such other Credit Document, as the case may be. The words "include"
and "including" and words of similar import when used in this Agreement or any
other Credit Document shall not be construed to be limiting or exclusive. In the
event of any inconsistency between the terms of this Agreement and the terms of
any other Credit Document, the terms of this Agreement shall govern.
SECTION II.
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CREDIT FACILITIES.
2.01. Loan Facility.
(a) Loan Availability. Subject to the terms and conditions of
this Agreement (including the amount limitations set forth in Paragraph
2.03), each Lender severally agrees to advance to Borrower from time to
time during the period beginning on the Closing Date and ending on the
Maturity Date such loans as Borrower may request under this Paragraph
2.01 (individually, a "Loan"); provided, however, that (i) the aggregate
principal amount of all Loans made by such Lender at any time
outstanding shall not exceed such Lender's Commitment at such time and
(ii) the aggregate principal amount of all Loans made by all Lenders at
any time outstanding shall not exceed the Total Commitment at such time.
All Loans shall be made on a pro rata basis by Lenders in accordance
with their respective Proportionate Shares, with each Borrowing to be
comprised of a Loan by each Lender equal to such Lender's Proportionate
Share of such Borrowing. Except as otherwise provided herein, Borrower
may borrow, repay and reborrow Loans until the Maturity Date.
(b) Notice of Borrowing. Borrower shall request each Borrowing by
delivering to Agent an irrevocable written notice in the form of Exhibit
A, appropriately completed (a "Notice of Borrowing"), which specifies,
among other things:
(i) The principal amount of the requested Borrowing, which
shall be in the amount of (A) $1,000,000 or an integral multiple
of $100,000 in excess thereof in the case of a Borrowing
consisting of Base Rate Loans; or (B) $1,000,000 or an integral
multiple of $500,000 in excess thereof in the case of a Borrowing
consisting of LIBOR Loans;
(ii) Whether the requested Borrowing is to consist of Base
Rate Loans or LIBOR Loans;
(iii) If the requested Borrowing is to consist of LIBOR
Loans, the initial Interest Period selected by Borrower for such
LIBOR Loans in accordance with Subparagraph 2.01(e); and
(iv) The date of the requested Borrowing, which shall be a
Business Day;
Provided, however, that all Borrowings made during the period commencing
on the date of this Agreement and ending three (3) Business Days
thereafter shall consist solely of Base Rate Loans. Borrower shall give
each Notice of Borrowing to Agent at least three (3) Business Days
before the date of the requested Borrowing in the case of a Borrowing
consisting of LIBOR Loans and at least one (1) Business Day before the
date of the requested Borrowing in the case of a Borrowing consisting of
Base Rate Loans. Each Notice of Borrowing shall be delivered by
first-class mail or facsimile to Agent at the office or facsimile number
and during the hours specified in Paragraph 8.01; provided,
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however, that Borrower shall promptly deliver to Agent the original of
any Notice of Borrowing initially delivered by facsimile. Agent shall
promptly notify each Lender of the contents of each Notice of Borrowing
and of the amount and Type of (and, if applicable, the Interest Period
for) each Loan to be made by such Lender as part of the requested
Borrowing.
(c) Loan Interest Rates. Borrower shall pay interest on the
unpaid principal amount of each Loan from the date of such Loan until
the maturity thereof, at one of the following rates per annum:
(i) During such periods as such Loan is a Base Rate Loan,
at a rate per annum equal to the Base Rate plus the Applicable
Margin therefor, such rate to change from time to time as the
Applicable Margin or Base Rate shall change; and
(ii) During such periods as such Loan is a LIBOR Loan, at
a rate per annum equal at all times during each Interest Period
for such LIBOR Loan to the LIBO Rate for such Interest Period
plus the Applicable Margin therefor, such rate to change from
time to time during such Interest Period as the Applicable Margin
shall change.
All Loans in each Borrowing shall, at any given time prior to maturity,
bear interest at one, and only one, of the above rates. The number of
Borrowings consisting of LIBOR Loans shall not exceed ten (10) at any
time.
(d) Conversion of Loans. Borrower may convert any Borrowing from
one Type of Borrowing to the other Type; provided, however, that any
conversion of a Borrowing consisting of LIBOR Loans into a Borrowing
consisting of Base Rate Loans shall be made on, and only on, the last
day of an Interest Period for such LIBOR Loans. Borrower shall request
such a conversion by an irrevocable written notice to Agent in the form
of Exhibit B, appropriately completed (a "Notice of Conversion"), which
specifies, among other things:
(i) The Borrowing which is to be converted;
(ii) The Type of Borrowing into which such Borrowing
is to be converted;
(iii) If such Borrowing is to be converted into a
Borrowing consisting of LIBOR Loans, the initial Interest Period
selected by Borrower for such LIBOR Loans in accordance with
Subparagraph 2.01(e); and
(iv) The date of the requested conversion, which shall be
a Business Day.
Borrower shall give each Notice of Conversion to Agent at least three
(3) Business Days before the date of the requested conversion. Each
Notice of Conversion shall be
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delivered by first-class mail or facsimile to Agent at the office or to
the facsimile number and during the hours specified in Paragraph 8.01;
provided, however, that Borrower shall promptly deliver to Agent the
original of any Notice of Conversion initially delivered by facsimile.
Agent shall promptly notify each Lender of the contents of each Notice
of Conversion.
(e) LIBOR Loan Interest Periods.
(i) The initial and each subsequent Interest Period
selected by Borrower for a Borrowing consisting of LIBOR Loans
shall be one (1), two (2), three (3) or six (6) months; provided,
however, that (A) any Interest Period which would otherwise end
on a day which is not a Business Day shall be extended to the
next succeeding Business Day unless such next Business Day falls
in another calendar month, in which case such Interest Period
shall end on the immediately preceding Business Day; (B) any
Interest Period which begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar
month; and (C) no Interest Period shall end after the Maturity
Date.
(ii) Borrower shall notify Agent by an irrevocable written
notice in the form of Exhibit C, appropriately completed (a
"Notice of Interest Period Selection"), at least three (3)
Business Days prior to the last day of each Interest Period for a
Borrowing consisting of LIBOR Loans of the Interest Period
selected by Borrower for the next succeeding Interest Period for
such LIBOR Loans. Each Notice of Interest Period Selection shall
be given by first-class mail or facsimile to the office or the
facsimile number and during the hours specified in Paragraph
8.01; provided, however, that Borrower shall promptly deliver to
Agent the original of any Notice of Interest Period Selection
initially delivered by facsimile. If Borrower fails to notify
Agent of the next Interest Period for a Borrowing consisting of
LIBOR Loans in accordance with this Subparagraph 2.01(e), such
LIBOR Loans shall automatically convert to Base Rate Loans on the
last day of the current Interest Period therefor.
(f) Scheduled Loan Payments. Borrower shall repay the principal
amount of the Loans on the Maturity Date. Borrower shall pay accrued
interest on the unpaid principal amount of each Loan in arrears (i) in
the case of a Base Rate Loan, on the last day in each March, June,
September and December, (ii) in the case of a LIBOR Loan, on the last
day of each Interest Period therefor (and, if any such Interest Period
is longer than three (3) months, every three (3) months); and (iii) in
the case of all Loans, upon prepayment (to the extent thereof) and at
maturity.
(g) Purpose. Borrower shall use the proceeds of the Loans for
Borrower's general corporate purposes, including working capital and
acquisitions.
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(h) Maturity Date Extensions. On or before the last Business Day
which is six (6) months prior to each anniversary date of this
Agreement, Borrower may request the Lenders to extend the Maturity Date
for an additional one-year period; provided, however, that Borrower may
request such an extension only twice. Borrower shall request each such
extension by appropriately completing, executing and delivering to Agent
a written request in the form of Exhibit D (an " Extension Request").
Borrower understands that this Subparagraph 2.01(h) is included in this
Agreement for Borrower's convenience in requesting extensions and
acknowledges that neither Agent nor any other Lender Party has promised
(either expressly or implicitly), or has any obligation or commitment,
to extend the Maturity Date at any time. Agent shall promptly deliver to
each Lender three (3) copies of each Extension Request received by
Agent. If a Lender, in its sole and absolute discretion, consents to any
Extension Request, such Lender shall evidence such consent by executing
and returning two (2) copies of the Extension Request to Agent not later
than the last Business Day which is five (5) months prior to the
Maturity Date. Any failure by any Lender so to execute and return an
Extension Request shall be deemed a denial thereof. If Borrower delivers
an Extension Request to Agent pursuant to the first sentence of this
Subparagraph 2.01(h), then not later than the last Business Day which is
four (4) months days prior to the Maturity Date, Agent shall notify
Borrower in writing whether (i) Agent has received a copy of the
Extension Request executed by each Lender, in which case the definition
of "Maturity Date" set forth in Schedule 3.01 shall be deemed amended as
provided in the Extension Request as of the date of such written notice
from Agent to Borrower, or (ii) Agent has not received a copy of the
Extension Request executed by each Lender, in which case such Extension
Request shall be deemed denied. Agent shall deliver to Borrower, with
each written notice under clause (i) of the preceding sentence which
notifies Borrower that Agent has received a Extension Request executed
by each Lender, a copy of the Extension Request so executed by each
Lender.
2.02. Letter of Credit Facility.
(a) Letter of Credit Availability. Subject to the terms and
conditions of this Agreement (including the amount limitations set forth
in Paragraph 2.03), ABN AMRO (in its capacity as the issuer of letters
of credit under this Paragraph 2.02, "Issuing Bank") agrees to issue on
behalf of Borrower from time to time during the period beginning on the
Closing Date and ending on the date which is fifteen (15) days prior to
the Maturity Date (the "LC Facility Expiration Date") such letters of
credit as Borrower may request under this Paragraph 2.02 (individually,
a "Letter of Credit"); provided, however, as follows:
(i) The aggregate amount available for drawing under all
Letters of Credit at any time outstanding shall not the LC
Commitment.
(ii) Each Letter of Credit shall be an irrevocable standby
letter of credit that is either a Financial Standby Letter of
Credit or a Performance Standby Letter of Credit.
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(iii) Each Letter of Credit shall expire on or prior to
the LC Facility Expiration Date.
(iv) Each Letter of Credit shall be governed by the
Uniform Customs and Practices for Documentary Credits as most
recently published by the International Chamber of Commerce (the
"UCP") prior to the date of issuance of such Letter of Credit and
the terms of the UCP are hereby incorporated by reference with
respect to each Letter of Credit.
(v) Each Letter of Credit shall be in the minimum amount
of $500,000.
(vi) Each Letter of Credit shall be in a form reasonably
acceptable to Issuing Bank.
Except as otherwise provided herein, Borrower may request Letters of
Credit, cause or allow Letters of Credit to expire and request
additional Letters of Credit until the LC Facility Expiration Date.
(b) LC Application. Borrower shall request each Letter of Credit
by delivering to Agent and Issuing Bank an irrevocable written
application in a form reasonably acceptable to Issuing Bank,
appropriately completed (an "LC Application"), which specifies, among
other things:
(i) The stated amount of the requested Letter of Credit;
(ii) The name and address of the beneficiary of the
requested Letter of Credit;
(iii) The expiration date of the requested Letter of
Credit;
(iv) The documentary conditions for drawing under the
requested Letter of Credit; and
(v) The date of issuance for the requested Letter of
Credit, which shall be a Business Day.
Borrower shall give each LC Application to Issuing Bank at least five
(5) Business Days before the proposed date of issuance of the requested
Letter of Credit. Each LC Application shall be delivered by first-class
mail or facsimile to Agent and Issuing Bank at their respective offices
or facsimile numbers and during the hours specified in Paragraph 8.01;
provided, however, that Borrower shall promptly deliver to Issuing Bank
the original of any LC Application initially delivered by facsimile.
Agent shall promptly notify each Lender of the contents of each LC
Application. In the event of any conflict between the terms of this
Agreement and the terms of any LC Application, the terms of this
Agreement shall control.
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(c) Disbursement and Reimbursement.
(i) Disbursement. Issuing Bank shall notify Borrower upon
receipt by Issuing Bank of the presentment of any demand for
payment under any Letter of Credit, together with notice of the
amount of such payment and the date such payment is to be made.
Subject to the terms and provisions of such Letter of Credit,
Issuing Bank shall make such payment (a "Drawing Payment") to the
appropriate beneficiary.
(ii) Time of Reimbursement. Not later than 11:00 a.m. on
the day each Drawing Payment is to be made by Issuing Bank (if
Borrower received notice from Issuing Bank pursuant to clause (i)
of Subparagraph 2.02(c) prior to 9:00 a.m. on such day, or not
later than 11:00 a.m. on the next Business Day if such notice is
received after 9:00 a.m. on such day), Borrower shall make or
cause to be made to Issuing Bank a payment in the amount of such
Drawing Payment (a "Reimbursement Payment"); provided, however,
that Borrower shall make such Reimbursement Payment to, or cause
such Reimbursement Payment to be made to, Agent for the benefit
of the Lenders if, prior to the time such Reimbursement
Payment is made, Issuing Bank has notified Borrower that it has
requested the Lenders pursuant to clause (ii) of Subparagraph
2.02(d) to pay to Issuing Bank their respective Proportionate
Shares of the Drawing Payment made by Issuing Bank. If any such
Reimbursement Payment is made to Agent, Agent shall promptly pay
to each Lender which has paid its Proportionate Share of the
Drawing Payment, such Lender's Proportionate Share of the
Reimbursement Payment and shall promptly pay to Issuing Bank the
balance of such Reimbursement Payment.
(iii) Reimbursement Obligation Absolute. The obligation of
Borrower to reimburse Issuing Bank or the Lenders, as the case
may be, for Drawing Payments (such obligation to be referred to
herein as a "Reimbursement Obligation") shall be absolute,
unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under and without
regard to any circumstances, including, without limitation (A)
any lack of validity or enforceability of any of the Credit
Documents, (B) the existence of any claim, setoff, defense or
other right which Borrower may have at any time against any
beneficiary or any transferee of any Letter of Credit (or any
Persons for whom any such beneficiary or transferee may be
acting), any Lender Party or any other Person, whether in
connection with this Agreement, the transactions contemplated
herein or in the other Credit Documents, or in any unrelated
transaction, (C) any breach of contract or dispute between
Borrower, any beneficiary or any transferee of any Letter of
Credit (or any Persons for whom any such beneficiary or
transferee may be acting), any Lender Party or any other Person,
(D) any demand, statement or other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue
or inaccurate in any respect, (E) payment by Issuing Bank under
any
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Letter of Credit against presentation of a demand for payment
which does not comply (but which appears on its face to comply)
with the terms of such Letter of Credit, (F) any non-application
or misapplication by any beneficiary or any transferee of any
Letter of Credit (or any Persons for whom any such beneficiary or
transferee may be acting) of the proceeds of any drawing under
such Letter of Credit or (G) any delay, extension of time,
renewal, compromise or other indulgence or modification granted
or agreed to by Issuing any Lender Party, with or without notice
to or approval by Borrower, with respect to Borrower's
indebtedness under this Agreement; provided, however, that this
Subparagraph 2.02(c) shall not abrogate any right which Borrower
may have to seek to enjoin any drawing under any Letter of Credit
or to recover damages from Issuing Bank pursuant to Subparagraph
2.02(e).
(d) Lender Participations; Loan Funding.
(i) Participation Agreement. Each Lender severally,
unconditionally and irrevocably agrees with Issuing Bank to
participate in the extension of credit arising from the issuance
of each Letter of Credit in an amount equal to such Lender's
Proportionate Share of the stated amount of such Letter of Credit
from time to time, and the issuance of each Letter of Credit
shall be deemed a confirmation by Issuing Bank of such
participation in such amount.
(ii) Participation Funding. Issuing Bank may request the
Lenders to fund their participations in Letters of Credit by
paying to Issuing Bank all or any portion of any Drawing Payment
made or to be made by Issuing Bank under any Letter of Credit.
Issuing Bank shall make such a request by delivering to Agent
(with a copy to Borrower), at any time after the drawing for
which such payment is requested has been made upon Issuing Bank,
a written request for such payment which specifies the amount of
such Drawing Payment and the date on which such Drawing Payment
is to be made or was made; provided, however, that Issuing Bank
shall not request the Lenders to make any payment under this
Subparagraph 2.02(d) in connection with any portion of a Drawing
Payment for which Issuing Bank has been reimbursed from a
Reimbursement Payment by Borrower unless such Reimbursement
Payment has been thereafter recovered by Borrower. Agent shall
promptly notify each Lender of the contents of each such request
and of such Lender's Proportionate Share of the applicable
portion of such Drawing Payment. Promptly following receipt of
such notice from Agent, each Lender shall pay to Agent, for the
benefit of Issuing Bank, such Lender's Proportionate Share of the
applicable portion of such Drawing Payment.
(iii) Funding Through Loans. At any time any Reimbursement
Obligations are outstanding, Agent may or, upon the written
request of Issuing Bank (if Borrower is not then the subject of a
bankruptcy proceeding), shall (subject to the terms and
conditions of this Subparagraph 2.02(d)), initiate a Borrowing in
an amount not exceeding the aggregate amount of such outstanding
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Reimbursement Obligations and use the proceeds of such Borrowing
to repay all or a portion of such Reimbursement Obligations.
Agent shall initiate such a Borrowing by delivering to each
Lender (with a copy to Borrower) a written notice which specifies
the aggregate amount of outstanding Reimbursement Obligations,
the amount of the Borrowing (which initially shall consist of
Base Rate Loans), the date of such Borrowing and the amount of
the Loan to be made by such Lender as part of such Borrowing.
Each Lender shall make available to Agent funds in the amount of
its Loan as provided in Subparagraph 2.08(a). After receipt of
such funds, Agent shall promptly disburse such funds to Issuing
Bank and the Lenders, as appropriate, in payment of the
outstanding Reimbursement Obligations.
(iv) Obligations Absolute. Each Lender's obligations to
fund its participations under this Subparagraph 2.02(d) shall be
absolute, unconditional and irrevocable and shall not be affected
by (A) the occurrence or existence of any Default or Event of
Default, (B) any failure to satisfy any condition set forth in
Section III, (C) any event or condition which might have a
Material Adverse Effect, (D) the failure of any other Lender to
make any payment under this Subparagraph 2.02(d), (E) any right
of offset, abatement, withholding or reduction which such Lender
may have against Issuing Bank, Agent, any other Lender or
Borrower, (F) any event, circumstance or condition set forth in
Subparagraph 2.02(c) or Subparagraph 2.02(e), or (G) any other
event, circumstance or condition whatsoever, whether or not
similar to any of the foregoing; provided, however, that nothing
in this Paragraph 2.02 shall prejudice any right which any Lender
may have against Issuing Bank for any action by Issuing Bank
which constitutes gross negligence or willful misconduct.
(e) Liability of Issuing Bank, Etc. Borrower agrees that neither
any Lender Party nor any of its respective directors, officers or
employees shall be liable or responsible for (i) the use which may be
made of any Letter of Credit or for any acts or omissions of any
beneficiary or transferee thereof in connection therewith; (ii) any
reference which may be made to this Agreement or to any Letter of Credit
in any agreements, instruments or other documents relating to
obligations secured by such Letter of Credit; (iii) the validity,
sufficiency or genuineness of documents, or of any endorsement(s)
thereon, even if such documents should in fact prove to be in any or all
respects invalid, insufficient, fraudulent or forged or any statement
therein prove to be untrue or inaccurate in any respect whatsoever; (iv)
payment by Issuing Bank against presentation of documents which do not
comply with the terms of any Letter of Credit, including failure of any
documents to bear any reference or adequate reference to any Letter of
Credit; or (v) any other circumstances whatsoever in making or failing
to make payment under any Letter of Credit, except only that Issuing
Bank shall be liable to Borrower for acts or events described in clauses
(i) through (v) above, to the extent, but only to the extent, of any
damages suffered by Borrower (excluding consequential damages) which
Borrower proves were caused by (A) Issuing Bank's willful misconduct,
bad faith or gross negligence in determining whether a drawing made
under any Letter of
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Credit complies with the terms and conditions therefor stated in such
Letter of Credit or (B) Issuing Bank's willful misconduct, bad faith or
gross negligence in failing to pay under any Letter of Credit after a
drawing by the beneficiary thereof strictly complying with the terms and
conditions of such Letter of Credit. Without limiting the foregoing,
Issuing Bank may accept a drawing that appears on its face to be in
order, without responsibility for further investigation. The
determination of whether a drawing has been made under any Letter of
Credit prior to its expiration or whether a drawing made under any
Letter of Credit is in proper and sufficient form shall be made by
Issuing Bank in its sole discretion, which determination shall be
conclusive and binding upon Borrower to the extent permitted by law.
Borrower hereby waives any right to object to any payment made under any
Letter of Credit with regard to a drawing that is in the form provided
in such Letter of Credit but which varies with respect to punctuation,
capitalization, spelling or similar matters of form (but not as to
dollar amounts).
(f) Reports of Issuing Bank. Issuing Bank shall, on a monthly
basis if requested by Agent, provide to Agent such information regarding
the Letters of Credit as Agent may reasonably request, including the
Letters of Credit outstanding, the stated amounts of outstanding Letters
of Credit, the expiration dates of outstanding Letters of Credit, the
names of the beneficiaries of outstanding Letters of Credit, the amounts
of unpaid Reimbursement Obligations and the amounts and times of Drawing
Payments and Reimbursement Payments.
(g) Purpose. Borrower shall use Letters of Credit for general
corporate needs.
2.03. Amount Limitations, Commitment Reductions, Etc.
(a) Amount Limitation. The Outstanding Credit shall not at any
time exceed the Total Commitment at such time. No Lender shall have any
obligation to make the Loan to be made by it as part of any Borrowing
and Issuing Bank shall have no obligation to issue any Letter of Credit
if, after giving effect to such Borrowing or Letter of Credit, the
Outstanding Credit would exceed the Total Commitment at such time.
(b) Reduction or Cancellation of Commitments. Borrower may, upon
five (5) Business Days written notice to Agent, permanently reduce the
Total Commitment by the amount of Ten Million Dollars ($10,000,000) or
an integral multiple of Five Million Dollars ($5,000,000) in excess
thereof or cancel the Total Commitment in its entirety; provided,
however, that:
(i) Borrower may not reduce the Total Commitment prior to
the Maturity Date, if, after giving effect to such reduction, the
Outstanding Credit would exceed the Total Commitment;
(ii) Borrower may not reduce the Total Commitment prior to
the LC Facility Expiration Date, if, after giving effect to such
reduction, the LC Commitment would exceed the Total Commitment;
and
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(iii) Borrower may not cancel the Total Commitment prior
to the Maturity Date, if, after giving effect to such
cancellation, any Loan, Letter of Credit or Reimbursement
Obligation would then remain outstanding or the LC Commitment
would remain in effect.
(c) Effect of Commitment Reductions. From the effective date of
any reduction of the Total Commitment, the Commitment Fees payable
pursuant to Subparagraph 2.04(b) shall be computed on the basis of the
Total Commitment as so reduced. Once reduced or cancelled, the Total
Commitment may not be increased or reinstated without the prior written
consent of all Lenders. Any reduction of the Total Commitment pursuant
to Subparagraph 2.03(b) shall be applied ratably to reduce each Lender's
Commitment in accordance with clause (i) of Subparagraph 2.09(a).
2.04. Fees.
(a) Agent's Fee. Borrower shall pay to Agent, for its own
account, agent's fees and other compensation in the amounts and at the
times set forth in the Agent's Fee Letter.
(b) Commitment Fees. Borrower shall pay to Agent, for the ratable
benefit of Lenders as provided in clause (iv) of Subparagraph 2.09(a),
commitment fees (the "Commitment Fees") equal to the Commitment Fee Rate
(as such rate changes from time to time) on the daily average Unused
Commitment for the period beginning on the date of this Agreement and
ending on the Maturity Date. Borrower shall pay the Commitment Fees in
arrears on the last day in each March, June, September and December
(commencing June 30, 1998) and on the Maturity Date (or if the Total
Commitment is cancelled on a date prior to the Maturity Date, on such
prior date).
(c) Letter of Credit Fees.
(i) LC Usage Fees. Borrower shall pay to Agent, for the
ratable benefit of the Lenders as provided in clause (vi) of
Subparagraph 2.09(a), nonrefundable letter of credit fees for the
Letters of Credit (the "LC Usage Fees") equal to the applicable
LC Usage Fee Rate (as such rate changes from time to time) on the
daily average available amount of each Letter of Credit for the
period beginning on the date such Letter of Credit is issued and
ending on the date such Letter of Credit expires. Borrower shall
pay the LC Usage Fees quarterly in arrears on the last day in
each March, June, September and December (commencing June 30,
1998) and on the LC Facility Expiration Date.
(ii) LC Issuance Fees. Borrower shall pay to Agent, for
the sole benefit of Issuing Bank, nonrefundable issuance fees for
the Letters of Credit (the "LC Issuance Fees") equal to
one-eighth of one percent (0.125%) per annum on the daily average
available amount of each Letter of Credit for the period
beginning on the date such Letter of Credit is issued and ending
on the date such Letter of Credit expires. Borrower shall pay the
LC Issuance Fees for each Letter
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of Credit in advance on the date of issuance of such Letter of
Credit and on the date of any amendment to such Letter of Credit
that increases its amount or extends its maturity.
(iii) Other Letter of Credit Fees. In addition to the LC
Usage Fees and the LC Issuance Fees, Borrower shall pay to Agent,
for the benefit of Issuing Bank, other standard fees of Issuing
Bank for drawings under, transfers of and amendments to any
Letter of Credit and other administrative actions performed by
Issuing Bank in connection with any Letter of Credit, payable at
such times and in such amounts as are consistent with Issuing
Bank's standard fee policy at the time of such amendment or other
action.
2.05.
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Prepayments.
(a) Terms of all Prepayments. Upon the prepayment of any Loan
(whether such prepayment is an optional prepayment under Subparagraph
2.05(b), a mandatory prepayment required by Subparagraph 2.05(c) or a
mandatory prepayment required by any other provision of this Agreement
or the other Credit Documents, including a prepayment upon
acceleration), Borrower shall pay to the Lender that made such Loan (i)
all accrued interest to the date of such prepayment on the amount
prepaid and (ii) if such prepayment is the prepayment of a LIBOR Loan on
a day other than the last day of an Interest Period for such LIBOR Loan,
all amounts payable to such Lender pursuant to Paragraph 2.12.
(b) Optional Prepayments. At its option, Borrower may, upon one
(1) Business Day notice to Agent in the case of Base Rate Loans or three
(3) Business Days notice to Agent in the case of LIBOR Loans, prepay the
Loans in any Borrowing in part, in an aggregate principal amount of
$1,000,000 or more, or in whole.
(c) Mandatory Prepayments. If, at any time, the Outstanding
Credit exceeds the Total Commitment at such time, Borrower shall
immediately prepay Loans in an aggregate principal amount equal to such
excess.
2.06. Other Payment Terms.
(a) Place and Manner. Borrower shall make all payments due to
each Lender Party hereunder by payments to Agent at Agent's office
located at the address specified in Paragraph 8.01, with each payment
due to a Lender to be for the account of such Lender and such Lender's
Applicable Lending Office. Borrower shall make all payments hereunder in
lawful money of the United States and in same day or immediately
available funds not later than 11:00 a.m. on the date due. Agent shall
promptly disburse to each Lender Party each payment received by Agent
for the account of such Lender Party.
(b) Date. Whenever any payment due hereunder shall fall due on a
day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall be included in
the computation of interest or fees, as the case may be.
(c) Late Payments. If any amount required to be paid by Borrower
under this Agreement or the other Credit Documents (including principal
or interest payable on any Loan, any fee or other amount payable to
Agent or any Lender) remains unpaid after such amount is due, Borrower
shall pay interest on the aggregate, outstanding balance of such amount
from the date due until such amount is paid in full at a per annum rate
equal to the Base Rate plus two percent (2.00%), such rate to change
from time to time as the Base Rate shall change.
(d) Application of Payments. All payments hereunder shall be
applied first to unpaid fees, costs and expenses then due and payable
under this Agreement or the other
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Credit Documents, second to accrued interest then due and payable under
this Agreement or the other Credit Documents, third to any unpaid
Reimbursement Obligations and finally to reduce the principal amount of
outstanding Loans.
(e) Failure to Pay Agent. Unless Agent shall have received notice
from Borrower at least one (1) Business Day prior to the date on which
any payment is due to Lenders hereunder that Borrower will not make such
payment in full, Agent shall be entitled to assume that Borrower has
made or will make such payment in full to Agent on such date and Agent
may, in reliance upon such assumption, cause to be paid to Lenders on
such due date an amount equal to the amount then due such Lenders. If
and to the extent Borrower shall not have so made such payment in full
to Agent, each such Lender shall repay to Agent forthwith on demand such
amount distributed to such Lender together with interest thereon, for
each day from the date such amount is distributed to such Lender until
the date such Lender repays such amount to Agent, at a per annum rate
equal to (i) the Federal Funds Rate for the first three (3) days and
(ii) the rate applicable to Base Rate Loans thereafter. A certificate of
Agent submitted to any Lender with respect to any amount owing by such
Lender under this Subparagraph 2.06(e) shall constitute prima facie
evidence of such amount.
2.07. Loan Accounts; Notes.
(a) Loan Accounts. The obligation of Borrower to repay the Loans
made to it by each Lender and to pay interest thereon at the rates
provided herein shall be evidenced by an account or accounts maintained
by such Lender on its books (individually, a "Loan Account"), except
that any Lender may request that its Loans be evidenced by a note or
notes pursuant to Subparagraph 2.07(b). Each Lender shall record in its
Loan Account (i) the date and amount of each Loan made by such Lender,
(ii) the interest rates applicable to each such Loan and the effective
dates of all changes thereto, (iii) the Interest Period for each LIBOR
Loan, (iv) the date and amount of each principal and interest payment on
each Loan and (v) such other information as such Lender may determine is
necessary for the computation of principal and interest payable to it by
Borrower hereunder; provided, however, that any failure by a Lender to
make, or any error by any Lender in making, any such notation shall not
affect Borrower's Obligations. The Loan Accounts shall constitute prima
facie evidence of the matters noted therein.
(b) Notes. If any Lender so requests, such Lender's Loans shall
be evidenced by a promissory note in the form of Exhibit E
(individually, a "Note") which note shall be (i) payable to the order of
such Lender, (ii) in the amount of such Lender's Commitment, (iii) dated
the Closing Date and (iv) otherwise appropriately completed. Borrower
authorizes each Lender to record on the schedule annexed to such
Lender's Note the date and amount of each Loan made by such Lender and
of each payment or prepayment of principal thereon made by Borrower, and
agrees that all such notations shall constitute prima facie evidence of
the matters noted; provided, however, that any failure by a Lender to
make, or any error by any Lender in making, any such notation shall not
affect
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Borrower's Obligations. Borrower further authorizes each Lender to
attach to and make a part of such Lender's Note continuations of the
schedule attached thereto as necessary.
2.08. Loan Funding.
(a) Lender Funding and Disbursement to Borrower. Each Lender
shall, before 11:00 a.m. on the date of each Borrowing, make available
to Agent at Agent's office specified in Paragraph 8.01, in same day or
immediately available funds, such Lender's Proportionate Share of such
Borrowing. After Agent's receipt of such funds and upon satisfaction of
the applicable conditions set forth in Section III, Agent shall promptly
disburse such funds to Borrower in same day or immediately available
funds. Agent shall disburse the proceeds of each Borrowing by
disbursement to the account or accounts specified in the applicable
Notice of Borrowing.
(b) Lender Failure to Fund. Unless Agent shall have received
notice from a Lender prior to the date of any Borrowing that such Lender
will not make available to Agent such Lender's Proportionate Share of
such Borrowing, Agent shall be entitled to assume that such Lender has
made or will make such portion available to Agent on the date of such
Borrowing in accordance with Subparagraph 2.08(a), and Agent may on such
date, in reliance upon such assumption, disburse or otherwise credit to
Borrower a corresponding amount. If any Lender does not make the amount
of its Proportionate Share of any Borrowing available to Agent on or
prior to the date of such Borrowing, such Lender shall pay to Agent, on
demand, interest which shall accrue on such amount from the date of such
Borrowing until such amount is paid to Agent at rates equal to (i) the
daily Federal Funds Rate during the period from the date of such
Borrowing through the third Business Day thereafter and (ii) the rate
applicable to Base Rate Loans thereafter. A certificate of Agent
submitted to any Lender with respect to any amount owing by such Lender
under this Subparagraph 2.08(b) shall constitute prima facie evidence of
such amount. If the amount of any Lender's Proportionate Share of any
Borrowing is not paid to Agent by such Lender within three (3) Business
Days after the date of such Borrowing, Borrower shall repay such amount
to Agent, on demand, together with interest thereon, for each day from
the date such amount was disbursed to Borrower until the date such
amount is repaid to Agent, at the interest rate applicable at the time
to the Loans comprising such Borrowing.
(c) Lenders' Obligations Several. The failure of any Lender to
make the Loan to be made by it as part of any Borrowing shall not
relieve any other Lender of its obligation hereunder to make its Loan as
part of such Borrowing, but no Lender shall be obligated in any way to
make any Loan which another Lender has failed or refused to make or
otherwise be in any way responsible for the failure or refusal of any
other Lender to make any Loan required to be made by such other Lender
on the date of any Borrowing.
2.09. Pro rata Treatment.
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(a) Borrowings, Commitment Reductions, Etc. Except as otherwise
provided herein:
(i) Each Borrowing, each reduction of the Total Commitment
and participations in each Letter of Credit shall be made or
shared among the Lenders pro rata according to their respective
Proportionate Shares;
(ii) Each payment of principal on Loans in any Borrowing
shall be shared among Lenders which made or funded the Loans in
such Borrowing pro rata according to the respective unpaid
principal amounts of such Loans then owed to such Lenders;
(iii) Each payment of interest on Loans in any Borrowing
shall be shared among Lenders which made or funded the Loans in
such Borrowing pro rata according to (A) the respective unpaid
principal amounts of such Loans so made or funded by such Lenders
and (B) the dates on which such Lenders so made or funded such
Loans;
(iv) Each payment of Commitment Fees shall be shared among
Lenders (excluding Defaulting Lenders) pro rata according to (A)
their respective Proportionate Shares and (B) in the case of each
Lender which becomes a Lender hereunder after the date hereof,
the date upon which such Lender so became a Lender;
(v) Each Reimbursement Payment and interest payable by
Borrower thereon shall be shared among the Lenders (including
Issuing Bank) which made or funded the applicable Drawing Payment
pro rata according to the respective amounts of such Drawing
Payment so made or funded by such Lenders;
(vi) Each payment of LC Usage Fees shall be shared among
the Lenders (including Issuing Bank in its capacity as a Lender
but excluding Defaulting Lenders) pro rata according to (A) their
respective Proportionate Shares and (B) in the case of each
Lender which becomes a Lender hereunder after the date hereof,
the date upon which such Lender so became a Lender;
(vii) Each payment of interest (other than interest on
Loans) shall be shared among Lenders and Agent owed the amount
upon which such interest accrues pro rata according to (A) the
respective amounts so owed such Lenders and Agent and (B) the
dates on which such amounts became owing to such Lenders and
Agent; and
(viii) All other payments under this Agreement and the
other Credit Documents shall be for the benefit of the Person or
Persons specified.
(b) Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any
right of setoff, or otherwise)
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on account of Loans owed to it in excess of its ratable share of
payments on account of such Loans obtained by all Lenders entitled to
such payments, such Lender shall forthwith purchase from the other
Lenders such participations in the Loans as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of
them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such
purchase shall be rescinded and each other Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery
together with an amount equal to such other Lender's ratable share
(according to the proportion of (i) the amount of such other Lender's
required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered.
Borrower agrees that any Lender so purchasing a participation from
another Lender pursuant to this Subparagraph 2.09(b) may, to the fullest
extent permitted by law, exercise all its rights of payment (including
the right of setoff) with respect to such participation as fully as if
such Lender were the direct creditor of Borrower in the amount of such
participation.
2.10. Change of Circumstances.
(a) Inability to Determine Rates. If, on or before the first day
of any Interest Period for any LIBOR Loan, (i) any Lender shall advise
Agent that the LIBO Rate for such Interest Period cannot be adequately
and reasonably determined due to the unavailability of funds in or other
circumstances affecting the London interbank market or (ii) Required
Lenders shall advise Agent that the rate of interest for such Loan does
not adequately and fairly reflect the cost to such Lenders of making or
maintaining such LIBOR Loan, Agent shall immediately give notice of such
condition to Borrower and the other Lenders. After the giving of any
such notice and until Agent shall otherwise notify Borrower that the
circumstances giving rise to such condition no longer exist, Borrower's
right to request the making of, conversion to or a new Interest Period
for LIBOR Loans shall be suspended. Any LIBOR Loans outstanding at the
commencement of any such suspension shall be converted at the end of the
then current Interest Period for such LIBOR Loans into Base Rate Loans,
unless such suspension has then ended.
(b) Illegality. If, after the date of this Agreement, the
adoption of any Governmental Rule, any change in any Governmental Rule
or the application or requirements thereof (whether such change occurs
in accordance with the terms of such Governmental Rule as enacted, as a
result of amendment or otherwise), any change in the interpretation or
administration of any Governmental Rule by any Governmental Authority,
or compliance by any Lender with any request or directive (whether or
not having the force of law) of any Governmental Authority (a "Change of
Law") shall make it unlawful or impossible for any Lender to make or
maintain any LIBOR Loan, such Lender shall immediately notify Agent and
Borrower of such Change of Law. Upon receipt of such notice, (i)
Borrower's right to request the making of, conversion to or a new
Interest Period for LIBOR Loans shall be terminated, and (ii) Borrower
shall, at the request of such Lender, either (A) pursuant to
Subparagraph 2.01(d) convert any such then outstanding LIBOR Loans into
Base Rate Loans at the end of the current Interest
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Period for such LIBOR Loans or (B) immediately repay or convert any such
LIBOR Loans if such Lender shall notify Borrower that such Lender may
not lawfully continue to fund and maintain such LIBOR Loans. Any
conversion or prepayment of LIBOR Loans made pursuant to the preceding
sentence prior to the last day of an Interest Period for such LIBOR
Loans shall be deemed a prepayment thereof for purposes of Paragraph
2.12. After any Lender notifies Agent and Borrower of such a Change of
Law and until such Lender notifies Agent and Borrower that it is no
longer unlawful or impossible for such Lender to make or maintain a
LIBOR Loan, all Loans of such Lender shall be Base Rate Loans.
(c) Increased Costs. If, after the date of this Agreement, any
Change of Law:
(i) Shall subject any Lender to any tax, duty or other
charge with respect to any LIBOR Loan, or shall change the basis
of taxation of payments by Borrower to any Lender on such a LIBOR
Loan or in respect to such a LIBOR Loan under this Agreement
(except for changes in the rate of taxation on the overall net
income of any Lender imposed by its jurisdiction of incorporation
or the jurisdiction in which its principal executive office is
located); or
(ii) Shall impose, modify or hold applicable any reserve
(excluding any Reserve Requirement or other reserve to the extent
included in the calculation of the LIBO Rate for any Loans),
special deposit or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances
or loans by, or any other acquisition of funds by any Lender for
any LIBOR Loan; or
(iii) Shall impose on any Lender any other condition
related to any LIBOR Loan or Letter of Credit or such Lender's
Commitments;
And the effect of any of the foregoing is to increase the cost to such
Lender of making, issuing, renewing, participating in or maintaining any
such LIBOR Loan, Letter of Credit or its Commitments or to reduce any
amount receivable by such Lender hereunder; then Borrower shall from
time to time, within thirty (30) days after demand by such Lender, pay
to such Lender additional amounts sufficient to reimburse such Lender
for such increased costs or to compensate such Lender for such reduced
amounts. A certificate setting forth in reasonable detail the amount of
such increased costs or reduced amounts, submitted by such Lender to
Borrower shall constitute prima facie evidence of such costs or amounts.
The obligations of Borrower under this Subparagraph 2.10(c) shall
survive the payment and performance of the Obligations and the
termination of this Agreement.
(d) Capital Requirements. If, after the date of this Agreement,
any Lender determines that (i) any Change of Law affects the amount of
capital required or expected to be maintained by such Lender or any
Person controlling such Lender (a "Capital Adequacy Requirement") and
(ii) the amount of capital maintained by such Lender or such Person
which is attributable to or based upon the Loans, the Letters of Credit,
the Commitments or this Agreement must be increased as a result of such
Capital Adequacy Requirement (taking into account such Lender's or such
Person's policies with respect to
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capital adequacy), Borrower shall pay to such Lender or such Person,
within thirty (30) days after demand of such Lender, such amounts as
such Lender or such Person shall determine are necessary to compensate
such Lender or such Person for the increased costs to such Lender or
such Person of such increased capital. A certificate setting forth in
reasonable detail the amount of such increased costs, submitted by any
Lender to Borrower shall constitute prima facie evidence of such costs.
The obligations of Borrower under this Subparagraph 2.10(d) shall
survive the payment and performance of the Obligations and the
termination of this Agreement.
(e) Mitigation. Any Lender which becomes aware of (i) any Change
of Law which will make it unlawful or impossible for such Lender to make
or maintain any LIBOR Loan or (ii) any Change of Law or other event or
condition which will obligate Borrower to pay any amount pursuant to
Subparagraph 2.10(c) or Subparagraph 2.10(d) shall notify Borrower and
Agent thereof as promptly as practical. If any Lender has given notice
of any such Change of Law or other event or condition and thereafter
becomes aware that such Change of Law or other event or condition has
ceased to exist, such Lender shall notify Borrower and Agent thereof as
promptly as practical. Each Lender affected by any Change of Law which
makes it unlawful or impossible for such Lender to make or maintain any
LIBOR Loan or to which Borrower is obligated to pay any amount pursuant
to Subparagraph 2.10(c) or Subparagraph 2.10(d) shall use reasonable
commercial efforts (including changing the jurisdiction of its
Applicable Lending Office) to avoid the effect of such Change of Law or
to avoid or materially reduce any amounts which Borrower is obligated to
pay pursuant to Subparagraph 2.10(c) or Subparagraph 2.10(d) if, in the
reasonable opinion of such Lender, such efforts would not be
disadvantageous to such Lender or contrary to such Lender's normal
banking practices.
2.11. Taxes on Payments.
(a) Payments Free of Taxes. All payments made by Borrower under
this Agreement and the other Credit Documents shall be made free and
clear of, and without deduction or withholding for or on account of, any
present or future income, stamp, documentary or other taxes, any duties,
or any other levies, imposts, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority (except net income taxes and franchise taxes in
lieu of net income taxes imposed on any Lender Party by its jurisdiction
of incorporation or the jurisdiction in which its Applicable Lending
Office is located) (all such non- excluded taxes, duties, levies,
imposts, charges, fees, deductions and withholdings being hereinafter
called "Taxes"). If any Taxes are required to be withheld from any
amounts payable to any Lender Party hereunder or under the other Credit
Documents, the amounts so payable to Agent or such Lender shall be
increased to the extent necessary to yield to Agent or such Lender
(after payment of all Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement and
the other Credit Documents. Whenever any Taxes are payable by Borrower,
as promptly as possible thereafter, Borrower shall send to Agent for its
own account or for the account of
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such Lender, as the case may be, a certified copy of an original
official receipt received by Borrower showing payment thereof. If
Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to Agent the required receipts or other
required documentary evidence, Borrower shall indemnify Agent and
Lenders for any taxes, interest or penalties that may become payable by
any Lender Party as a result of any such failure. The obligations of
Borrower under this Subparagraph 2.11(a) shall survive the payment and
performance of the Obligations and the termination of this Agreement.
(b) Withholding Exemption Certificates. On or prior to the date
of the initial Borrowing or, if such date does not occur within thirty
(30) days after the date of this Agreement, by the end of such 30-day
period, each Lender which is not organized under the laws of the United
States of America or a state thereof shall deliver to Borrower and Agent
two duly completed copies of United States Internal Revenue Service Form
1001 or 4224 (or successor applicable form), as the case may be,
certifying in each case that such Lender is entitled to receive payments
under this Agreement without deduction or withholding of any United
States federal income taxes. Each such Lender further agrees (i)
promptly to notify Borrower and Agent of any change of circumstances
(including any change in any treaty, law or regulation) which would
prevent such Lender from receiving payments hereunder without any
deduction or withholding of such taxes and (ii) if such Lender has not
so notified Borrower and Agent of any change of circumstances which
would prevent such Lender from receiving payments hereunder without any
deduction or withholding of taxes, then on or before the date that any
certificate or other form delivered by such Lender under this
Subparagraph 2.11(b) expires or becomes obsolete or after the occurrence
of any event requiring a change in the most recent such certificate or
form previously delivered by such Lender, to deliver to Borrower and
Agent a new certificate or form, certifying that such Lender is entitled
to receive payments under this Agreement without deduction or such
taxes. If any Lender fails to provide to Borrower or Agent pursuant to
this Subparagraph 2.11(b) (or, in the case of an Assignee Lender,
Subparagraph 8.05(c)) any certificates or other evidence required by
such provision to establish that such Lender is, at the time it becomes
a Lender hereunder, entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income
taxes, such Lender shall not be entitled to any indemnification under
Subparagraph 2.11(a) for any Taxes imposed on such Lender primarily as a
result of such failure.
(c) Mitigation. If any Lender Party claims any additional amounts
to be payable to it pursuant to this Paragraph 2.11, such Person shall
use reasonable commercial efforts to file any certificate or document
requested in writing by Borrower (including copies of Internal Revenue
Service Form 1001 (or successor forms) reflecting a reduced rate of
withholding or to change the jurisdiction of its Applicable Lending
Office if the making of such a filing or such change in the jurisdiction
of its Applicable Lending Office would avoid the need for or materially
reduce the amount of any such additional amounts which may thereafter
accrue and if, in the reasonable opinion of such Person, in the case of
a change in the jurisdiction of its Applicable Lending Office, such
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change would not be disadvantageous to such Person or contrary to such
Person's normal banking practices.
(d) Tax Returns. Nothing contained in this Paragraph 2.11 shall
require any Lender Party to make available any of its tax returns (or
any other information relating to its taxes which it deems to be
confidential).
2.12. Funding Loss Indemnification. If Borrower shall (a) repay, prepay or
convert any LIBOR Loan on any day other than the last day of an Interest Period
therefor (whether a scheduled payment, an optional prepayment or conversion, a
mandatory prepayment or conversion, a payment upon acceleration or otherwise),
(b) fail to borrow any LIBOR Loan for which a Notice of Borrowing has been
delivered to Agent (whether as a result of the failure to satisfy any applicable
conditions or otherwise) or (c) fail to convert any Loans into LIBOR Loans in
accordance with a Notice of Conversion delivered to Agent (whether as a result
of the failure to satisfy any applicable conditions or otherwise), Borrower
shall, within five (5) Business Days after demand by any Lender, reimburse such
Lender for and hold such Lender harmless from all costs and losses actually
incurred by such Lender as a result of such repayment, prepayment, conversion or
failure. Borrower understands that such costs and losses may include, without
limitation, losses incurred by a Lender as a result of funding and other
contracts entered into by such Lender to fund a LIBOR Loan. Each Lender
demanding payment under this Paragraph 2.12 shall deliver to Borrower, with a
copy to Agent, a certificate setting forth the amount of costs and losses for
which demand is made, which certificate shall set forth in reasonable detail the
calculation of the amount demanded. Such a certificate so delivered to Borrower
shall constitute prima facie evidence of such costs and losses. The obligations
of Borrower under this Paragraph 2.12 shall survive the payment and performance
of the Obligations and the termination of this Agreement.
2.13. Replacement of Lenders. If any Lender shall (a) become a Defaulting
Lender more than one (1) time in a period of twelve (12) consecutive months, (b)
continue as a Defaulting Lender for more than five (5) Business Days at any
time, (c) suspend its obligation to make or maintain LIBOR Loans pursuant to
Subparagraph 2.10(b) for a reason which is not applicable to any other Lender or
(d) demand any payment under Subparagraph 2.10(c), 2.10(d) or 2.11(a) for a
reason which is not applicable to any other Lender, then Agent may (or upon the
written request of Borrower, shall) replace such Lender (the "affected Lender"),
or cause such affected Lender to be replaced, with another lender (the
"replacement Lender") satisfying the requirements of an Assignee Lender under
Subparagraph 8.05(c), by having the affected Lender sell and assign all of its
rights and obligations under this Agreement and the other Credit Documents to
the replacement Lender pursuant to Subparagraph 8.05(c); provided, however, that
if Borrower seeks to exercise such right, it must do so within sixty (60) days
after it first knows or should have known of the occurrence of the event or
events giving rise to such right, and neither Agent nor any Lender shall have
any obligation to identify or locate a replacement Lender for Borrower. Upon
receipt by any affected Lender of a written notice from Agent stating that Agent
is exercising the replacement right set forth in this Paragraph 2.13, such
affected Lender shall sell and assign all of its rights and obligations under
this Agreement and the other Credit Documents to the replacement Lender pursuant
to an Assignment Agreement and
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Subparagraph 8.05(c) for a purchase price equal to the sum of the principal
amount of the affected Lender's Loans so sold and assigned, all accrued and
unpaid interest thereon and its ratable share of all fees to which it is
entitled.
2.14. Limitation on Collection of Costs . Notwithstanding anything to the
contrary contained herein, Borrower shall not be obligated to reimburse any
Lender for any cost or expense incurred by such Lender pursuant to Paragraph
2.10, Paragraph 2.11 or Paragraph 2.12 hereof unless demand for such payment is
made by Lender to Borrower within one (1) year after the date such cost or
expense was incurred.
SECTION III. CONDITIONS PRECEDENT.
3.01. Initial Conditions Precedent. The obligations of Lenders to make the
Loans comprising the initial Borrowing are subject to receipt by Agent, on or
prior to the Closing Date, of each item listed in Schedule 3.01, each in form
and substance satisfactory to Agent and each Lender, and with sufficient copies
for, Agent and each Lender.
3.02. Conditions Precedent to Each Credit Event. The occurrence of each
Credit Event (including the initial Borrowing) is subject to the further
conditions that:
(a) Borrower shall have delivered to Agent the Notice of
Borrowing, Notice of Conversion, Notice of Interest Period Selection, LC
Application or other applicable request, as the case may be, for such
Credit Event in accordance with this Agreement; and
(b) On the date such Credit Event is to occur and after giving
effect to such Credit Event, the following shall be true and correct:
(i) The representations and warranties of Borrower and its
Subsidiaries set forth in Paragraph 4.01 and in the other Credit
Documents are true and correct in all material respects as if
made on such date (except for representations and warranties
expressly made as of a specified date, which shall be true as of
such date);
(ii) No Default has occurred and is continuing or will
result from such Credit Event; and
(iii) All of the Credit Documents are in full force and
effect.
The submission by Borrower to Agent of each Notice of Borrowing, each
Notice of Conversion (other than a notice for a conversion to a Base
Rate Loan), each Notice of Interest Period Selection, each LC
Application and each other applicable request shall be deemed to be a
representation and warranty by Borrower that each of the statements set
forth above in this Subparagraph 3.03(b) is true and correct as of the
date of such notice.
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3.03. Covenant to Deliver. Borrower agrees (not as a condition but as a
covenant) to deliver to Agent each item required to be delivered to Agent as a
condition to the occurrence of any Credit Event if such Credit Event occurs.
Borrower expressly agrees that the occurrence of any such Credit Event prior to
the receipt by Agent of any such item shall not constitute a waiver by any
Lender Party of Borrower's obligation to deliver such item.
SECTION IV. REPRESENTATIONS AND WARRANTIES.
4.01. Borrower's Representations and Warranties. In order to induce Agent
and Lenders to enter into this Agreement, Borrower hereby represents and
warranties to Agent and Lenders as follows:
(a) Due Incorporation, Qualification, etc.
(i) Borrower (A) is a corporation duly organized, validly
existing and in good standing under the laws of its state of
incorporation; (B) has the power and authority to own, lease and
operate its properties and carry on its business as now
conducted; and (C) is duly qualified, licensed to do business and
in good standing as a foreign corporation in each jurisdiction
where the failure to be so qualified or licensed is reasonably
likely to have a Material Adverse Effect.
(ii) Each Material Subsidiary and, to the knowledge of
Borrower, each other Subsidiary, (A) is a corporation duly
organized, validly existing and in good standing under the laws
of its state of incorporation; (B) has the power and authority to
own, lease and operate its properties and carry on its business
as now conducted; and (C) is duly qualified, licensed to do
business and in good standing as a foreign corporation in each
jurisdiction where the failure to be so qualified or licensed is
reasonably likely to have a Material Adverse Effect.
(b) Authority. The execution, delivery and performance by
Borrower of each Credit Document executed, or to be executed, by
Borrower and the consummation of the transactions contemplated thereby
(i) are within the power of Borrower and (ii) have been duly authorized
by all necessary actions on the part of Borrower.
(c) Enforceability. Each Credit Document executed, or to be
executed, by Borrower has been, or will be, duly executed and delivered
by Borrower and constitutes, or will constitute, a legal, valid and
binding obligation of Borrower, enforceable against Borrower in
accordance with its terms, except as limited by bankruptcy, insolvency
or other laws of general application relating to or affecting the
enforcement of creditors' rights generally and general principles of
equity.
(d) Non-Contravention. The execution and delivery by Borrower of
the Credit Documents executed by Borrower and the performance and
consummation of the transactions contemplated thereby do not (i) violate
any Requirement of Law applicable to Borrower; (ii) violate any
provision of, or result in the breach or the acceleration of, or
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entitle any other Person to accelerate (whether after the giving of
notice or lapse of time or both), any Contractual Obligation of
Borrower; or (iii) result in the creation or imposition of any Lien (or
the obligation to create or impose any Lien) upon any property, asset or
revenue of Borrower (except such Liens as may be created in favor of the
Lender Parties pursuant to this Agreement or the other Credit
Documents).
(e) Approvals. No consent, approval, order or authorization of,
or registration, declaration or filing with, any Governmental Authority
or other Person (including, without limitation, the shareholders of any
Person) is required in connection with the execution and delivery of the
Credit Documents executed by Borrower and the performance and
consummation by Borrower of the transactions contemplated thereby,
except such as have been made or obtained and are in full force and
effect.
(f) No Violation or Default. Neither Borrower, nor any of its
Material Subsidiaries, nor to the best knowledge of Borrower any other
Subsidiary, is in violation of or in default with respect to (i) any
Requirement of Law applicable to such Person; (ii) any Contractual
Obligation of such Person (nor is there any waiver in effect which, if
not in effect, would result in such a violation or default), where, in
each case, such violation or default is reasonably likely to have a
Material Adverse Effect. Without limiting the generality of the
foregoing, neither Borrower, nor any of its Material Subsidiaries, nor
to the best knowledge of Borrower any other Subsidiary, (A) has violated
any Environmental Laws, (B) has any liability under any Environmental
Laws or (C) has received notice or other communication of an
investigation or is under investigation by any Governmental Authority
having authority to enforce Environmental Laws, where such violation,
liability or investigation is reasonably likely to have a Material
Adverse Effect. No Default has occurred and is continuing.
(g) Litigation. No actions (including, without limitation,
derivative actions), suits, proceedings or investigations are pending
or, to the knowledge of Borrower, threatened against Borrower or any of
its Subsidiaries at law or in equity in any court or before any other
Governmental Authority which (i) is reasonably likely (alone or in the
aggregate) to have a Material Adverse Effect or (ii) seeks to enjoin,
either directly or indirectly, the execution, delivery or performance by
Borrower of the Credit Documents or the transactions contemplated
thereby.
(h) Title; Possession Under Leases. Borrower and its Subsidiaries
own and have good and marketable title, or a valid leasehold interest
in, all their respective properties and assets as reflected in the most
recent Financial Statements delivered to Agent (except those assets and
properties disposed of in the ordinary course of business or otherwise
in compliance with this Agreement since the date of such Financial
Statements) and all respective assets and properties acquired by
Borrower and its Subsidiaries since such date (except those disposed of
in the ordinary course of business or otherwise in compliance with this
Agreement). Such assets and properties are subject to no Lien, except
for Permitted Liens. Each of Borrower and its Subsidiaries has complied
with all material obligations under all material leases to which it is a
party and
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all such leases are in full force and effect (except such leases that
have expired in accordance with their terms or have been replaced by
similar leases or where such failure to comply is not reasonably likely
to have a Material Adverse Effect). Each of Borrower and its
Subsidiaries enjoys peaceful and undisturbed possession under such
leases.
(i) Financial Statements. The Financial Statements of Borrower
and its Subsidiaries which have been delivered to Agent, (i) are in
accordance with the books and records of Borrower and its Subsidiaries,
which have been maintained in accordance with good business practice;
(ii) have been prepared in conformity with GAAP; and (iii) fairly
present the financial conditions and results of operations of Borrower
and its Subsidiaries as of the date thereof and for the period covered
thereby. Neither Borrower nor any of its Subsidiaries has any Contingent
Obligations, liability for taxes or other outstanding obligations which
are material in the aggregate, except as disclosed in the audited
Financial Statements dated September 30, 1997, furnished by Borrower to
Agent prior to the date hereof, or in the Financial Statements delivered
to Agent pursuant to clause (i) or (ii) of Subparagraph 5.01.
(j) Equity Securities. To the knowledge of Borrower, all
outstanding Equity Securities of Borrower are duly authorized, validly
issued, fully paid and non-assessable.
(k) No Agreements to Sell Assets; Etc. Except as otherwise
permitted by Subparagraph 5.02(c) or Subparagraph 5.02(d), neither
Borrower nor any of its Subsidiaries has any legal obligation, absolute
or contingent, to any Person to sell the assets of Borrower or any of
its Subsidiaries (other than sales in the ordinary course of business),
or to effect any merger, consolidation or other reorganization of
Borrower or any of its Subsidiaries or to enter into any agreement with
respect thereto.
(l) Employee Benefit Plans.
(i) Based on the latest valuation of each Employee Benefit
Plan that either Borrower or any ERISA Affiliate maintains or
contributes to, or has any obligation under (which occurred
within twelve months of the date of this representation), the
aggregate benefit liabilities of such plan within the meaning of
Section 4001 of ERISA did not exceed the aggregate value of the
assets of such plan. Neither Borrower nor any ERISA Affiliate has
any liability with respect to any post-retirement benefit under
any Employee Benefit Plan which is a welfare plan (as defined in
section 3(1) of ERISA), other than liability for health plan
continuation coverage described in Part 6 of Title I(B) of ERISA,
which liability for health plan contribution coverage is not
reasonably likely to have a Material Adverse Effect.
(ii) Each Employee Benefit Plan complies, in both form and
operation, in all material respects, with its terms, ERISA and
the IRC, and no condition exists or event has occurred with
respect to any such plan which would result in the incurrence by
either Borrower or any ERISA Affiliate of any material liability,
fine or penalty. Each Employee Benefit Plan, related trust
agreement,
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arrangement and commitment of Borrower or any ERISA Affiliate is
legally valid and binding and in full force and effect. No
Employee Benefit Plan is being audited or investigated by any
government agency or is subject to any pending or threatened
claim or suit. Neither Borrower nor any ERISA Affiliate nor any
fiduciary of any Employee Benefit Plan has engaged in a
prohibited transaction under section 406 of ERISA or section 4975
of the IRC.
(iii) Neither Borrower nor any ERISA Affiliate contributes
to or has any material contingent obligations to any
Multiemployer Plan. Neither Borrower nor any ERISA Affiliate has
incurred any material liability (including secondary liability)
to any Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan under Section 4201 of
ERISA or as a result of a sale of assets described in Section
4204 of ERISA. Neither Borrower nor any ERISA Affiliate has been
notified that any Multiemployer Plan is in reorganization or
insolvent under and within the meaning of Section 4241 or Section
4245 of ERISA or that any Multiemployer Plan intends to terminate
or has been terminated under Section 4041A of ERISA.
(m) Other Regulations. Borrower is not subject to regulation
under the Investment Company Act of 1940, the Public Utility Holding
Company Act of 1935, the Federal Power Act, any state public utilities
code or to any other Governmental Rule limiting its ability to incur
indebtedness.
(n) Patent and Other Rights. Borrower and its Subsidiaries own or
license under validly existing agreements all patents, licenses,
trademarks, trade names, trade secrets, service marks, copyrights and
all rights with respect thereto, which are required to conduct their
businesses as now conducted, except to the extent that failure to own or
license the same could not reasonably be expected to have a Material
Adverse Effect.
(o) Governmental Charges and Other Indebtedness. Borrower and its
Material Subsidiaries have filed or caused to be filed all tax returns
which are required to be filed by them. Borrower and its Subsidiaries
have paid, or made provision for the payment of, all taxes and other
Governmental Charges which have or may have become due pursuant to said
returns or otherwise and all other indebtedness, except such
Governmental Charges or indebtedness, if any, which are being contested
in good faith and as to which adequate reserves (determined in
accordance with GAAP) have been provided or which are not reasonably
likely to have a Material Adverse Effect if unpaid.
(p) Margin Stock. Borrower owns no Margin Stock which, in the
aggregate, would constitute a substantial part of the assets of
Borrower, and no proceeds of any Loan will be used to purchase or carry,
directly or indirectly, any Margin Stock or to extend credit, directly
or indirectly, to any Person for the purpose of purchasing or carrying
any Margin Stock.
(q) Subsidiaries, etc. Set forth in Schedule 4.01(q) (as
supplemented by Borrower from time to time in a written notice to Agent)
is a complete list of all of
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Borrower's Subsidiaries, the jurisdiction of incorporation of each, the
classes of Equity Securities of each and the number of shares and
percentages of shares of each such class owned directly or indirectly by
Borrower.
(r) Catastrophic Events. Neither Borrower, nor any of its
Material Subsidiaries, nor to the knowledge of Borrower any other
Subsidiary, and none of their properties is or has been affected by any
fire, explosion, accident, strike, lockout or other labor dispute,
drought, storm, hail, earthquake, embargo, act of God or other casualty
that is reasonably likely to have a Material Adverse Effect. There are
no disputes presently subject to grievance procedure, arbitration or
litigation under any of the collective bargaining agreements, employment
contracts or employee welfare or incentive plans to which Borrower, any
of its Material Subsidiaries, or to the knowledge of Borrower any of its
Subsidiaries, is a party, and there are no strikes, lockouts, work
stoppages or slowdowns, or, to the best knowledge of Borrower,
jurisdictional disputes or organizing activities occurring or threatened
which alone or in the aggregate are reasonably likely to have a Material
Adverse Effect.
(s) No Material Adverse Effect. No event has occurred and is
continuing and no condition exists which is reasonably likely to have a
Material Adverse Effect.
(t) Chief Executive Office. Borrower's chief executive office is
located at 101 Metro Drive, Suite 400, San Jose, CA 95110, or at such
other location as Borrower may notify Agent from time to time in
accordance with Subparagraph 5.01(g).
(u) Accuracy of Information Furnished. None of the Credit
Documents and none of the other certificates, statements or information
furnished to any Lender Party by or on behalf of Borrower or any of its
Subsidiaries in connection with the Credit Documents or the transactions
contemplated thereby contains or will contain any untrue statement of a
material fact or omits or will omit to state a material fact necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading.
4.02. Reaffirmation. Borrower shall be deemed to have reaffirmed, for
the benefit of Lenders and Agent, each representation and warranty contained in
Paragraph 4.01 on and as of the date of each Credit Event (except for
representations and warranties expressly made as of a specified date, which
shall be true as of such date).
SECTION V. COVENANTS.
5.01. Affirmative Covenants. Until the termination of this Agreement and
the satisfaction in full by Borrower of all Obligations, Borrower will comply,
and will cause compliance, with the following affirmative covenants, unless
Required Lenders shall otherwise consent in writing:
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(a) Financial Statements, Reports, etc. Borrower shall furnish to
Agent, with sufficient copies for each Lender, the following, each in
such form and such detail as Agent or the Required Lenders shall
reasonably request:
(i) As soon as available and in no event later than
forty-five (45) days after the last day of each fiscal quarter of
Borrower (other than the last quarter of each fiscal year), a
copy of the Financial Statements of Borrower and its Subsidiaries
(prepared on a consolidated basis) for such quarter and for the
fiscal year to date, certified by the chief financial officer or
treasurer of Borrower to present fairly the financial condition,
results of operations and other information reflected therein and
to have been prepared in accordance with GAAP (subject to normal
year-end audit adjustments);
(ii) As soon as available and in no event later than one
hundred, five (105) days after the close of each fiscal year of
Borrower, (A) copies of the audited Financial Statements of
Borrower and its Subsidiaries (prepared on a consolidated basis)
for such year, audited by Deloitte & Touche or other independent
certified public accountants of recognized national standing or
otherwise reasonably acceptable to Agent and Required Lenders,
(B) copies of the unqualified opinions (or qualified opinions
reasonably acceptable to Agent and Required Lenders) delivered by
such accountants in connection with all such Financial Statements
and (C) certificates of such accountants stating that in making
the examination necessary for their opinion they have reviewed
Paragraph 5.03 and have obtained no knowledge of any violation by
Borrower and its Subsidiaries of the covenants set forth therein,
or if, in the opinion of such accountants, any such violation has
occurred, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end
Financial Statements required by the foregoing clauses (i) and
(ii), a compliance certificate of the chief financial officer or
treasurer of Borrower in a form acceptable to Agent (a
"Compliance Certificate") which (A) states that no Default has
occurred and is continuing, or, if any such Default has occurred
and is continuing, a statement as to the nature thereof and what
action Borrower proposes to take with respect thereto and (B)
sets forth, for the quarter or year covered by such Financial
Statements or as of the last day of such quarter or year (as the
case may be), the calculation of the financial ratios and tests
provided in Paragraph 5.03;
(iv) As soon as available and in no event later than
forty-five (45) days after the last day of each fiscal quarter of
Borrower, a certificate of the chief financial officer or
treasurer of Borrower which sets forth, for the consecutive four
quarter period ending on the last day of such quarter, the
calculation of Borrower's EBITDA and Senior Debt/EBITDA Ratio for
such period;
(v) As soon as possible and in no event later than five
(5) Business Days after any officer of Borrower knows of the
occurrence or existence of
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(A) any Reportable Event under any Employee Benefit Plan or
Multiemployer Plan; (B) any actual or threatened litigation,
suits, claims or disputes against Borrower or any of its
Subsidiaries involving potential monetary damages payable by
Borrower or its Subsidiaries of $2,000,000 or more (alone or in
the aggregate); (C) any other event or condition which is
reasonably likely to have a Material Adverse Effect; or (D) any
Default; the statement of the chief financial officer or
treasurer of Borrower setting forth details of such event,
condition or Default and the action which Borrower proposes to
take with respect thereto;
(vi) As soon as available and in no event later than ten
(10) Business Days after they are sent, made available or filed,
copies of (A) all registration statements and reports filed by
Borrower or any of its Subsidiaries with any securities exchange
or the Securities and Exchange Commission (including, without
limitation, all 10-Q, 10-K and 8-Q reports); (B) all reports,
proxy statements and financial statements sent or made available
by Borrower or any of its Subsidiaries to its security holders;
and (C) all press releases and other similar public announcements
concerning any material developments in the business of Borrower
or any of its Subsidiaries made available by Borrower or any of
its Subsidiaries to the public generally;
(vii) As soon as available and in no event later than one
hundred, twenty (120) days after the first day of each fiscal
year of Borrower, the consolidated plan and forecast of Borrower
and its Subsidiaries for such fiscal year and the next two
succeeding years;
(viii) As soon as possible and in no event later than
thirty (30) days after the establishment or acquisition by
Borrower or any of its Subsidiaries of any new Subsidiary or any
new Equity Securities of any Existing Subsidiary, written notice
thereof; and
(ix) Such other instruments, agreements, certificates,
opinions, statements, documents and information relating to the
operations or condition (financial or otherwise) of Borrower or
its Subsidiaries, and compliance by Borrower with the terms of
this Agreement and the other Credit Documents as Agent may from
time to time reasonably request.
(b) Books and Records. Borrower and its Subsidiaries shall at all
times keep proper books of record and account in which full, true and
correct entries will be made of their transactions in accordance with
GAAP.
(c) Inspections.
(i) If no Default or Event of Default then exists, at such
Lender's expense, Borrower and its Subsidiaries shall permit any
Person designated by any Lender, upon reasonable notice and
during normal business hours, to visit and inspect any of the
properties and offices of Borrower and its Subsidiaries, to
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<PAGE> 53
examine the books and records of Borrower and its Subsidiaries
and make copies thereof and to discuss the affairs, finances and
business of Borrower and its Subsidiaries with, and to be advised
as to the same by, their officers, auditors and accountants, all
at such times and intervals as any Lender may reasonably request.
(ii) If a Default or Event of Default then exists, at the
expense of Borrower, Borrower and its Subsidiaries shall permit
any Person designated by any Lender, to visit and inspect any of
the properties and offices of Borrower and its Subsidiaries, to
examine the books and records of Borrower and its Subsidiaries
and make copies thereof and to discuss the affairs, finances and
business of Borrower and its Subsidiaries with, and to be advised
as to the same by, their officers, auditors and accountants, all
at such times and intervals as any Lender may reasonably request.
(c) Insurance. Borrower and its Subsidiaries shall:
(i) Carry and maintain insurance of the types and in the
amounts customarily carried from time to time during the term of
this Agreement by others engaged in substantially the same
business as such Person and operating in the same geographic area
as such Person, including, but not limited to, fire, public
liability, property damage and worker's compensation;
(ii) Carry and maintain each policy for such insurance
with financially sound insurers; and
(iii) Deliver to Agent from time to time, as Agent may
reasonably request, schedules setting forth all insurance then in
effect.
(e) Governmental Charges and Other Indebtedness. Borrower and its
Material Subsidiaries shall promptly pay and discharge when due (i) all
taxes and other Governmental Charges prior to the date upon which
penalties accrue thereon, (ii) all indebtedness which, if unpaid, could
become a Lien upon the property of Borrower or its Subsidiaries (other
than Liens permitted under Subparagraph 5.02(b))and (iii) all other
indebtedness which, in each case, if unpaid, is reasonably likely to
have a Material Adverse Effect, except such Indebtedness as may in good
faith be contested or disputed, or for which arrangements for deferred
payment have been made, provided that in each such case appropriate
reserves are maintained to the reasonable satisfaction of Agent.
(f) Use of Proceeds. Borrower shall not use any part of the
proceeds of any Loan, directly or indirectly, for the purpose of
purchasing or carrying any Margin Stock or for the purpose of purchasing
or carrying or trading in any securities under such circumstances as to
involve Borrower or any Lender Party in a violation of Regulations T, U
or X issued by the Federal Reserve Board.
(g) General Business Operations. Each of Borrower and its
Material Subsidiaries shall (i) preserve and maintain its corporate
existence and all of its rights,
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<PAGE> 54
privileges and franchises reasonably necessary to the conduct of its
business (except as otherwise permitted pursuant to Subparagraph 5.02(c)
and Subparagraph 5.02(d)), (ii) conduct its business activities in
compliance with all Requirements of Law and Contractual Obligations
applicable to such Person, the violation of which is reasonably likely
to have a Material Adverse Effect and (iii) keep all property useful and
necessary in its business in good working order and condition, ordinary
wear and tear excepted. Borrower shall maintain its chief executive
office and principal place of business in the United States and shall
not relocate its chief executive office or principal place of business
outside of California except upon not less than thirty (30) days prior
written notice to Agent.
(h) Year 2000 Compatibility. Each of Borrower and its
Subsidiaries shall take all acts reasonably necessary so that all
internal software, hardware, firmware, equipment, goods and systems
utilized by or material to their business operations or financial
condition will properly perform date sensitive functions before, during
and after the year 2000. At the request of Agent, Borrower shall provide
to Agent such certifications or other evidence of compliance with this
Subparagraph 5.01(h) as Agent may from time to time reasonably require.
5.02. Negative Covenants. Until the termination of this Agreement and
the satisfaction in full by Borrower of all Obligations, Borrower will comply,
and will cause compliance, with the following negative covenants, unless
Required Lenders shall otherwise consent in writing:
(a) Indebtedness. Neither Borrower nor any of its Subsidiaries
shall create, incur, assume or permit to exist any Indebtedness except
for the following ("Permitted Indebtedness"):
(i) The Obligations under the Credit Documents;
(ii) Indebtedness of Borrower and its Subsidiaries listed
in Schedule 5.02(a) of the Disclosure Letter and existing on the
date of this Agreement;
(iii) Indebtedness of Borrower and its Subsidiaries
arising from the endorsement of instruments for collection in the
ordinary course of Borrower's or a Subsidiary's business;
(iv) Indebtedness of Borrower and its Subsidiaries for
trade accounts payable, provided that (A) such accounts arise in
the ordinary course of business and (B) no material part of such
account is more than ninety (90) days (or such greater number of
days to which the payee shall agree) past due (unless subject to
a bona fide dispute and for which adequate reserves have been
established);
(v) cash advances received from customers in the ordinary
course of business;
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(vi) Indebtedness of Borrower and its Subsidiaries under
Rate Contracts, provided that all such arrangements are entered
into in connection with bona fide hedging operations and not for
speculation;
(vii) Indebtedness of Borrower and its Subsidiaries under
purchase money loans and Capital Leases incurred by Borrower or
any of its Subsidiaries to finance the acquisition by such Person
of real property, fixtures or equipment provided that (A) in each
case, (y) such Indebtedness is incurred at the time of, or not
later than one hundred twenty (120) days after, the acquisition
of the property so financed and (z) such Indebtedness does not
exceed the purchase price of the property so financed and (B) the
aggregate amount of such Indebtedness outstanding at any time
does not exceed ten percent (10%) of Borrower's Tangible Net
Worth on the last day of the immediately preceding fiscal year;
(viii) Indebtedness of Borrower and its Subsidiaries under
initial or successive refinancings of any Indebtedness permitted
by clause (ii) or (vii) above, provided that (A) the principal
amount of any such refinancing does not exceed the principal
amount of the Indebtedness being refinanced (except to the extent
any excess is otherwise permitted by another clause of this
Subparagraph 5.02(a)) and (B) the material terms and provisions
of any such refinancing (including maturity, redemption,
prepayment, default and subordination provisions) are no less
favorable to Lenders than the Indebtedness being refinanced;
(ix) Indebtedness of Borrower and its Subsidiaries with
respect to surety, appeal, indemnity, performance or other
similar bonds in the ordinary course of business;
(x) Indebtedness of Borrower and its Subsidiaries to and
among each other;
(xi) Indebtedness of any Subsidiary acquired by Borrower
or any of its Subsidiaries after the date of this Agreement
pursuant to Subparagraph 5.02(d), provided that (A) such
Indebtedness exists at the time such Subsidiary is so acquired
and (B) such Indebtedness was not created in contemplation of
such acquisition;
(xii) Indebtedness of Borrower under a "synthetic" lease
of the property located at 2240 Ringwood Avenue, San Jose, CA
95131, provided that the aggregate principal amount of such
Indebtedness outstanding at any time does not exceed $10,000,000;
(xiii) Subordinated Indebtedness of Borrower, provided
that the aggregate principal amount of such Indebtedness
outstanding at any time does not exceed $250,000,000; and
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(xiv) Other Indebtedness of Borrower and its Subsidiaries,
provided that the aggregate amount of such other Indebtedness
outstanding at any time does not exceed ten percent (10%) of
Borrower's Tangible Net Worth on the last day of the immediately
preceding fiscal year.
(b) Liens. Neither Borrower nor any of its Subsidiaries shall
create, incur, assume or permit to exist any Lien on or with respect to
any of its assets or property of any character, whether now owned or
hereafter acquired, except for the following ("Permitted Liens"):
(i) Liens in favor of any Lender Party created by the
Credit Documents and securing the Obligations;
(ii) Liens listed in Schedule 5.02(b) of the Disclosure
Letter and existing on the date of this Agreement;
(iii) Liens for taxes or other Governmental Charges not at
the time delinquent or thereafter payable without penalty or
being contested in good faith, provided that adequate reserves
for the payment thereof have been established in accordance with
GAAP;
(iv) Liens of carriers, warehousemen, mechanics,
materialmen, vendors, and landlords and other similar Liens
imposed by law incurred in the ordinary course of business for
sums not overdue or being contested in good faith, provided that
adequate reserves for the payment thereof have been established
in accordance with GAAP;
(v) (A) Deposits under workers' compensation, unemployment
insurance and social security laws or to secure the performance
of bids, tenders, contracts (other than for the repayment of
borrowed money) or leases, or to secure statutory obligations of
surety or appeal bonds or to secure indemnity, performance or
other similar bonds in the ordinary course of business and (B)
Liens on equipment under operating leases entered into in the
ordinary course of business;
(vi) Zoning restrictions, easements, rights-of-way, title
irregularities and other similar encumbrances, which alone or in
the aggregate are not substantial in amount and do not materially
detract from the value of the property subject thereto or
interfere with the ordinary conduct of the business of Borrower
or any of its Subsidiaries;
(vii) Banker's Liens and similar Liens (including set-off
rights) in respect of bank deposits or brokerage accounts;
(viii) Liens on any property or assets acquired, or on the
property or assets of any Persons acquired, by Borrower or any of
its Subsidiaries after the
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date of this Agreement pursuant to Subparagraph 5.02(d), provided
that (A) such Liens exist at the time such property or assets or
such Persons are so acquired and (B) such Liens were not created
in contemplation of such acquisitions;
(ix) Judgement Liens, provided that such Liens do not
constitute an Event of Default under Subparagraph 5.01(h) of the
Lease Agreement;
(x) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties
and in connection with the importation of goods in the ordinary
course of Borrower's and its Subsidiaries' businesses;
(xi) Liens securing Indebtedness which constitutes
Permitted Indebtedness under clause (vii) of Subparagraph 5.02(a)
provided that, in each case, such Lien (A) covers only those
assets, the acquisition of which was financed by such Permitted
Indebtedness, and (B) secures only such Permitted Indebtedness;
(xii) Liens on the property or assets of any Subsidiary of
Borrower in favor of Borrower or any other Subsidiary of
Borrower;
(xiii) Liens incurred in connection with the extension,
renewal or refinancing of the Indebtedness secured by the Liens
described in clause (ii) or (xii) above, provided that any
extension, renewal or replacement Lien (A) is limited to the
property covered by the existing Lien and (B) secures
Indebtedness which is no greater in amount and has material terms
no less favorable to the Lenders than the Indebtedness secured by
the existing Lien;
(xiv) Liens in the property that is the subject of the
"synthetic" lease referred in clause (xi) of Subparagraph 5.02(a)
and in any related property; and
(xv) Other Liens, provided that the aggregate amount of
the Indebtedness secured by such other Liens does not exceed at
any time five percent (5%) of Borrower's Tangible Net Worth on
the last day of the immediately preceding fiscal year.
(c) Asset Dispositions. Neither Borrower nor any of its Material
Subsidiaries shall sell, lease, transfer or otherwise dispose of all or
any part of its assets or property, whether now owned or hereafter
acquired, except for the following:
(i) Sales of inventory by Borrower and its Subsidiaries in
the ordinary course of their businesses;
(ii) Sales or other dispositions of surplus, damaged, worn
or obsolete equipment or inventory in the ordinary course of
their businesses;
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(iii) Sales or other dispositions of Investments permitted
by clause (i) of Subparagraph 5.02(e) for not less than fair
market value;
(iv) Sales or assignments of defaulted receivables to a
collection agency in the ordinary course of business;
(v) Sales (including, without limitation, sales to ABN
AMRO in its individual capacity) for cash of Accounts if such
sales are on a non-recourse basis and at a discount not exceeding
fifteen percent (15%) of the face amount of such Account;
provided, however, that the aggregate amount of Accounts which
can be so transferred in any fiscal quarter of Borrower shall not
exceed the lesser of Twenty-Five Million Dollars ($25,000,000)
and twenty percent (20%) of the gross amount of all Accounts
created during the immediately preceding fiscal quarter;
(vi) Sales of the capital stock of any non-Material
Subsidiary;
(vii) Sales of the property that is the subject of the
"synthetic" lease referred in clause (xi) of Subparagraph 5.02(a)
and in any related property;
(viii) Sales or other dispositions of assets or property
in connection with mergers and acquisitions permitted under
clause (i) of Subparagraph 5.02(d);
(ix) Licenses by Borrower or its Subsidiaries of its
patents, copyrights, trademarks, trade names and service marks in
the ordinary course of its business provided that, in each case,
the terms of the transaction are terms which then would prevail
in the market for similar transactions between unaffiliated
parties dealing at arm's length;
(x) Sales or other dispositions of assets and property by
Borrower to any of Borrower's Subsidiaries or by any of
Borrower's Subsidiaries to Borrower or any of its other
Subsidiaries, provided that unless such Subsidiary is not a
Material Subsidiary or any other Subsidiary in which seventy-five
percent (75%) or more of the equity interest in such Subsidiary
is owned by Borrower or a Material Subsidiary, the terms of any
such sales or other dispositions by or to Borrower are terms
which are no less favorable to Borrower then would prevail in the
market for similar transactions between unaffiliated parties
dealing at arm's length; and
(xi) Other sales, leases, transfers and disposals of
assets and property, provided that (A) no Default has occurred
and is continuing on the date of, or will result after giving
effect to, any such sale, lease, transfer or disposal and (B) the
aggregate book value of all such assets and property so sold,
leased, transferred or otherwise disposed of in any fiscal year
does not exceed five percent (5%) of Borrower's Tangible Net
Worth on the last day of the immediately preceding fiscal year.
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(d) Mergers, Acquisitions, Etc. Neither Borrower nor any of its
Subsidiaries shall consolidate with or merge into any other Person or
permit any other Person to merge into it, acquire any Person as a new
Subsidiary or acquire all or substantially all of the assets of any
other Person, except for the following:
(i) Borrower and its Subsidiaries may merge with each
other, provided that (A) in any such merger involving Borrower,
Borrower is the surviving corporation and (B) no Default has
occurred and is continuing on the date of, or will result after
giving effect to, any such merger; and
(ii) Other acquisitions of any Person as a new Subsidiary
or of all or substantially all of the assets of any other Person,
provided that:
(A) No Default has occurred and is continuing on
the date of, or will result after giving effect to, any
such acquisition; and
(B) The aggregate consideration paid by Borrower
and its Subsidiaries for all such acquisitions during the
period from the date of this Agreement through the
Maturity Date does not exceed (1) $50,000,000 in either
cash or seller-financed Indebtedness or (2) $100,000,000
in Equity Securities of Borrower and its Subsidiaries
(calculated as of the date such consideration is paid).
(e) Investments. Neither Borrower nor any of its Subsidiaries
shall make any Investment except for Investments in the following:
(i) Investments permitted by the investment policy of
Borrower set forth in Schedule 5.02(e) or, if any changes to the
investment policy of Borrower are hereafter duly approved by the
Board of Directors of Borrower, in any subsequent investment
policy which is the most recent investment policy delivered by
Borrower to Agent with a certificate of Borrower's chief
financial officer to the effect that such investment policy has
been duly approved by Borrower's Board of Directors and is then
in effect;
(ii) Investments received by Borrower and its Subsidiaries
in connection with the bankruptcy or reorganization of customers
and suppliers and in settlement of delinquent obligations of, and
other disputes with, customers and suppliers arising in the
ordinary course of business;
(iii) Investments by Borrower and its consolidated
Subsidiaries in each other;
(iv) Investments consisting of loans to employees and
officers for travel, relocation and other similar expenses
incurred in the ordinary course of business;
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(v) Investments by Borrower and its Subsidiaries in
interest rate protection, currency swap and other Rate Contracts,
provided that all such arrangements are entered into in
connection with bona fide hedging operations and not for
speculation;
(vi) Deposit accounts;
(vii) Endorsements of negotiable instruments in the
ordinary course of business;
(viii) Investments permitted by Subparagraph 5.02(d);
(ix) Loans, advances or other extensions of credit to
suppliers in the ordinary course of Borrower's or such
Subsidiary's business as presently conducted which do not exceed
in the aggregate Seven Million Five Hundred Thousand Dollars
($7,500,000) at any time outstanding; and
(x) Other Investments, provided that:
(A) No Default has occurred and is continuing on
the date of, or will result after giving effect to, any
such Investment; and
(B) The aggregate consideration paid by Borrower
and its Subsidiaries for all such Investments in any
fiscal year does not exceed $20,000,000.
(f) Dividends, Redemptions, Etc. Neither Borrower nor any of its
Subsidiaries shall pay any dividends or make any distributions on its
Equity Securities; purchase, redeem, retire, defease or otherwise
acquire for value any of its Equity Securities; return any capital to
any holder of its Equity Securities as such; make any distribution of
assets, Equity Securities, obligations or securities to any holder of
its Equity Securities as such; or set apart any sum for any such
purpose; except as follows:
(i) Either Borrower or any of its Subsidiaries may pay
dividends on its capital stock payable solely in such Person's
own capital stock;
(ii) Any Subsidiary of Borrower may pay dividends to
Borrower; and
(iii) Borrower may repurchase or redeem its capital stock
for cash, provided that, in each case, no Default has occurred
and is continuing on the date of, or will result after giving
effect to, any such payment, repurchase or redemption.
(g) Change in Business. Neither Borrower nor any of its
Subsidiaries shall engage in any business other than the designing,
manufacturing, assembling, marketing, licensing and distributing, of
semiconductor capital equipment, optical or related equipment or devices
or components thereof, and related activities.
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(h) Employee Benefit Plans. Neither Borrower nor any ERISA
Affiliate shall (A) adopt or institute any Employee Benefit Plan that is
an employee pension benefit plan within the meaning of Section 3(2) of
ERISA, (B) take any action which will result in the partial or complete
withdrawal, within the meanings of sections 4203 and 4205 of ERISA, from
a Multiemployer Plan, (C) engage or permit any Person to engage in any
transaction prohibited by section 406 of ERISA or section 4975 of the
IRC involving any Employee Benefit Plan or Multiemployer Plan which
would subject Borrower or any ERISA Affiliate to any tax, penalty or
other liability including a liability to indemnify, (D) incur or allow
to exist any accumulated funding deficiency (within the meaning of
section 412 of the IRC or section 302 of ERISA), (E) fail to make full
payment when due of all amounts due as contributions to any Employee
Benefit Plan or Multiemployer Plan, (F) fail to comply with the
requirements of section 4980B of the IRC or Part 6 of Title I(B) of
ERISA, or (G) adopt any amendment to any Employee Benefit Plan which
would require the posting of security pursuant to section 401(a)(29) of
the IRC, where singly or cumulatively, the above would be reasonably
likely to have a Material Adverse Effect.
(i) Transactions With Affiliates. Neither Borrower nor any of its
Subsidiaries shall enter into any Contractual Obligation with any
Affiliate (other than Borrower or one of its Subsidiaries) or engage in
any other transaction with any such Affiliate except upon terms at least
as favorable to Borrower or such Subsidiary as an arms-length
transaction with unaffiliated Persons.
(j) Accounting Changes. Neither Borrower nor any of its
Subsidiaries shall (i) change its fiscal year (currently October 1
through September 30) or (ii) except as required by GAAP, change its
accounting practices in any manner which would affect Borrower's
compliance with Paragraph 5.03.
5.03. Financial Covenants. Until the termination of this Agreement and
the satisfaction in full by Borrower of all Obligations, Borrower will comply,
and will cause compliance, with the following financial covenants, unless
Required Lenders shall otherwise consent in writing:
(a) Quick Ratio. Borrower shall not permit its Quick Ratio on the
last day of any fiscal quarter to be less than 1.00.
(b) Fixed Charge Coverage Ratio. Borrower shall not permit its
Fixed Charge Coverage Ratio for any period set forth below to be less
than the ratio set forth opposite such period below:
The quarter ending on
March 31, 1999 1.50;
The consecutive two-quarter
period ending on
June 30, 1999 2.00;
The consecutive three-quarter
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period ending on
September 30, 1999 2.50;
The consecutive four-quarter period
ending on December 31, 1999 and
each consecutive four-quarter
period ending on the last
day of each quarter thereafter 3.50.
(c) Leverage Ratio. Borrower shall not permit its Leverage Ratio
on the last day of any fiscal quarter to be greater than 0.25.
(d) Tangible Net Worth. Borrower shall not permit its Tangible
Net Worth on the last day of any fiscal quarter (such date to be
referred to in this Subparagraph 5.03(d) as a "determination date")
which occurs after September 28, 1997 (such date to be referred to in
this Subparagraph 5.03(d) as the "base date") to be less than the sum on
such determination date of the following:
(i) Ninety percent (90%) of the Tangible Net Worth of
Borrower and its Subsidiaries on the base date;
plus
(ii) Eighty percent (80%) of the sum of Borrower's
consolidated quarterly net income (ignoring any quarterly losses)
for each fiscal quarter after the base date through and including
the fiscal quarter ending on the determination date;
plus
(iii) Seventy-five percent (75%) of the Net Proceeds of
all Equity Securities issued by Borrower and its Subsidiaries (to
Persons other than Borrower or its Subsidiaries) during the
period commencing on the base date and ending on the
determination date;
plus
(iv) Seventy-five percent (75%) of the principal amount of
all debt securities of Borrower and its Subsidiaries converted
into Equity Securities of Borrower and its Subsidiaries during
the period commencing on the base date and ending on the
determination date.
(e) Profitability.
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(i) During the period April 1 - December 31, 1998,
Borrower shall not permit (A) its Adjusted Net Income for any
quarter to be a loss exceeding $(20,000,000) or (B) the sum of
all such quarterly losses (excluding any quarterly profits) to
exceed $(30,000,000).
(ii) During the period January 1 - September 30, 1999,
Borrower shall not permit the sum of all quarterly losses based
upon its Adjusted Net Income (excluding any quarterly profits) to
exceed $(5,000,000).
(iii) Thereafter, Borrower shall not permit (A) its
Adjusted Net Income for any quarter to be a loss exceeding
$(10,000,000), (B) its Adjusted Net Income to be a loss in more
than two quarters in any consecutive four-quarter period
(commencing with the consecutive four-quarter period ending on
December 31, 1999) or (C) its Adjusted Net Income for any
consecutive four-quarter period (commencing with the consecutive
four-quarter period ending on December 31, 1999) to be a loss.
SECTION VI. DEFAULT.
6.01. Events of Default. The occurrence or existence of any one or more
of the following shall constitute an "Event of Default" hereunder:
(a) Non-Payment. Borrower shall fail to pay within five (5)
Business Days of when due any principal, interest, fees or other amount
payable under the terms of this Agreement or any of the other Credit
Documents; or
(b) Specific Defaults. Borrower or any of its Subsidiary shall
fail to observe or perform any covenant, obligation, condition or
agreement set forth in Paragraph 5.02 (other than Subparagraph
5.02(i))or Paragraph 5.03; or
(c) Other Defaults. Borrower or any of its Subsidiaries shall
fail to observe or perform any other covenant, obligation, condition or
agreement contained in this Agreement or the other Credit Documents and
such failure shall continue for thirty (30) days after the earlier of
(i) Borrower's written acknowledgement of such failure and (ii) Agent's
or any Lender's written notice to Borrower of such failure; or
(d) Representations and Warranties. Any representation, warranty,
certificate, information or other statement (financial or otherwise)
made or furnished by or on behalf of Borrower or any of its Subsidiaries
to any Lender Party in or in connection with this Agreement or any of
the other Credit Documents, or as an inducement to Agent or any Lender
to enter into this Agreement, shall be false, incorrect, incomplete or
misleading in any material respect when made or furnished and Borrower
shall not have cured the facts or circumstances causing such
representation, warranty, certificate or other statement to be false,
incorrect, incomplete or misleading not later than thirty days (30) days
after the
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earlier of (i) Borrower's written acknowledgement thereof and (ii)
Agent's or any Lender's written notice to Borrower thereof; or
(e) Cross-Default. (i) Borrower or any of its Subsidiaries shall
fail to make any payment on account of any Indebtedness of such Person
(other than the Obligations) when due (whether at scheduled maturity, by
required prepayment, upon acceleration or otherwise) and such failure
shall continue beyond any period of grace provided with respect thereto,
if the amount of such Indebtedness exceeds $2,000,000 or the effect of
such failure is to cause, or permit the holder or holders thereof to
cause, Indebtedness of Borrower and its Subsidiaries (other than the
Obligations) in an aggregate amount exceeding $2,000,000 to become due
or payable (whether at scheduled maturity, by required prepayment or
redemption, upon acceleration or otherwise) and/or to be secured by cash
collateral or (ii) Borrower or any of its Subsidiaries shall otherwise
fail to observe or perform any agreement, term or condition contained in
any agreement or instrument relating to any Indebtedness of such Person
(other than the Obligations), or any other event shall occur or
condition shall exist, if the effect of such failure, event or condition
is to cause, or permit the holder or holders thereof to cause,
Indebtedness of Borrower and its Subsidiaries (other than the
Obligations) in an aggregate amount exceeding $2,000,000 to become due
or payable (whether at scheduled maturity, by required prepayment or
redemption, upon acceleration or otherwise) and/or to be secured by cash
collateral; or
(f) Insolvency, Voluntary Proceedings. Borrower or any of its
Subsidiaries shall (i) apply for or consent to the appointment of a
receiver, trustee, liquidator or custodian of itself or of all or a
substantial part of its property, (ii) be unable, or admit in writing
its inability, to pay its debts generally as they mature, (iii) make a
general assignment for the benefit of its or any of its creditors, (iv)
be dissolved or liquidated in full or in part, (v) become insolvent (as
such term may be defined or interpreted under any applicable statute),
(vi) commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or consent to any such relief or to the appointment of or taking
possession of its property by any official in an involuntary case or
other proceeding commenced against it, or (vi) take any action for the
purpose of effecting any of the foregoing; or
(g) Involuntary Proceedings. Proceedings for the appointment of a
receiver, trustee, liquidator or custodian of Borrower or any of its
Subsidiaries or of all or a substantial part of the property thereof, or
an involuntary case or other proceedings seeking liquidation,
reorganization or other relief with respect to Borrower or any of its
Subsidiaries or the debts thereof under any bankruptcy, insolvency or
other similar law now or hereafter in effect shall be commenced and an
order for relief entered or such proceeding shall not be dismissed or
discharged within sixty (60) days of commencement; or
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(h) Judgments. (i) One or more judgments, orders, decrees or
arbitration awards requiring Borrower and/or its Subsidiaries to pay an
aggregate amount of $2,000,000 or more (exclusive of amounts covered by
insurance issued by an insurer not an Affiliate of Borrower and
otherwise satisfying the requirements set forth in Subparagraph 5.01(d))
shall be rendered against Borrower and/or any of its Subsidiaries in
connection with any single or related series of transactions, incidents
or circumstances and the same shall not be satisfied, vacated or stayed
for a period of forty (40) consecutive days; (ii) any judgment, writ,
assessment, warrant of attachment, tax lien or execution or similar
process shall be issued or levied against a substantial part of the
property of Borrower or any of its Subsidiaries and the same shall not
be released, stayed, vacated or otherwise dismissed within fifteen (15)
days after issue or levy; or (iii) any other judgments, orders, decrees,
arbitration awards, writs, assessments, warrants of attachment, tax
liens or executions or similar processes which, alone or in the
aggregate, are reasonably likely to have a Material Adverse Effect are
rendered, issued or levied; or
(i) Credit Documents. Any Credit Document or any material term
thereof shall cease to be, or be asserted by Borrower or any of its
Subsidiaries not to be, a legal, valid and binding obligation of
Borrower or any of its Subsidiaries enforceable in accordance with its
terms; or
(j) ERISA. Any Reportable Event which constitutes grounds for the
termination of any Employee Benefit Plan by the PBGC or for the
appointment of a trustee by the PBGC to administer any Employee Benefit
Plan shall occur, or any Employee Benefit Plan shall be terminated
within the meaning of Title IV of ERISA or a trustee shall be appointed
by the PBGC to administer any Employee Benefit Plan; or
(k) Change of Control. Any Change of Control shall occur; or
(l) Material Adverse Effect. Any event(s) or condition(s) which
is (are) reasonably likely to have a Material Adverse Effect shall occur
or exist.
6.02. Remedies. At any time after the occurrence and during the continuance
of any Event of Default (other than an Event of Default referred to in
Subparagraph 6.01(f) or 6.01(g)), Agent may, with the consent of the Required
Lenders, or shall, upon instructions from the Required Lenders, by written
notice to Borrower, (a) terminate the Commitments and the obligations of the
Lenders and Issuing Bank to make Loans and issue Letters of Credit, (b) declare
all outstanding Obligations payable by Borrower to be immediately due and
payable without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived, anything contained herein or in the
Notes to the contrary notwithstanding, and/or (c) direct Borrower to deliver to
Agent funds in an amount equal to the aggregate stated amount of all outstanding
Letters of Credit. Upon the occurrence or existence of any Event of Default
described in Subparagraph 6.01(f) or 6.01(g), immediately and without notice,
(1) the Commitments and the obligations of the Lenders to make Loans shall
automatically terminate and (2) all outstanding Obligations payable by Borrower
hereunder shall automatically become immediately due and payable, without
presentment, demand, protest or any other notice of any
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kind, all of which are hereby expressly waived, anything contained herein or in
the Notes to the contrary notwithstanding. Borrower immediately shall deliver to
Agent all funds directed by Agent pursuant to clause (c) above, and Agent shall
hold such funds in a non-interest bearing account as collateral for the
Obligations. Borrower hereby grants to Agent, for the benefit of Agent and the
Lenders, a security interest in such funds and such account. In addition to the
foregoing remedies, upon the occurrence or existence of any Event of Default,
Agent may exercise any other right, power or remedy available to it under any of
the Credit Documents or otherwise by law, either by suit in equity or by action
at law, or both.
SECTION VII. THE AGENT AND RELATIONS AMONG LENDERS.
7.01. Appointment, Powers and Immunities. Each Lender hereby appoints and
authorizes Agent to act as its agent hereunder and under the other Credit
Documents with such powers as are expressly delegated to Agent by the terms of
this Agreement and the other Credit Documents, together with such other powers
as are reasonably incidental thereto. Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement or in any
other Credit Document, be a trustee for any Lender or have any fiduciary duty to
any Lender. Notwithstanding anything to the contrary contained herein Agent
shall not be required to take any action which is contrary to this Agreement or
any other Credit Document or any applicable Governmental Rule. Neither Agent nor
any Lender shall be responsible to any other Lender for any recitals,
statements, representations or warranties made by Borrower or any of its
Subsidiaries contained in this Agreement or in any other Credit Document, for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Credit Document or for any failure by Borrower or
any of its Subsidiaries to perform their respective obligations hereunder or
thereunder. Agent may employ agents and attorneys-in-fact and shall not be
responsible to any Lender for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. Neither Agent nor any of
its directors, officers, employees, agents or advisors shall be responsible to
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Credit Document or in connection herewith or therewith,
except for its or their own gross negligence or willful misconduct. Except as
otherwise provided under this Agreement, Agent shall take such action with
respect to the Credit Documents as shall be directed by the Required Lenders.
7.02. Reliance by Agent. Agent shall be entitled to rely upon any
certificate, notice or other document (including any cable, telegram, facsimile
or telex) believed by it in good faith to be genuine and correct and to have
been signed or sent by or on behalf of the proper Person or Persons, and upon
advice and statements of legal counsel, independent accountants and other
experts selected by Agent with reasonable care. As to any other matters not
expressly provided for by this Agreement, Agent shall not be required to take
any action or exercise any discretion, but shall be required to act or to
refrain from acting upon instructions of the Required Lenders and shall in all
cases be fully protected by Lenders in acting, or in refraining from acting,
hereunder or under any other Credit Document in accordance with the instructions
of the Required Lenders, and such instructions of the Required Lenders and any
action taken or failure to act pursuant thereto shall be binding on all of
Lenders.
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7.03. Defaults. Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default unless Agent has received a written notice from a
Lender or Borrower, referring to this Agreement, describing such Default and
stating that such notice is a "Notice of Default". If Agent receives such a
notice of the occurrence of a Default, Agent shall give prompt notice thereof to
Lenders. Agent shall take such action with respect to such Default as shall be
reasonably directed by the Required Lenders; provided, however, that until Agent
shall have received such directions, Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interest of Lenders.
7.04. Indemnification. Without limiting the Obligations of Borrower
hereunder, each Lender agrees to indemnify Agent, ratably in accordance with
their Proportionate Shares, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may at any time be imposed on, incurred
by or asserted against Agent in any way relating to or arising out of this
Agreement or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or the enforcement of any of the
terms hereof or thereof; provided, however, that no Lender shall be liable for
any of the foregoing to the extent they arise from Agent's gross negligence or
willful misconduct. Agent shall be fully justified in refusing to take or in
continuing to take any action hereunder unless it shall first be indemnified to
its satisfaction by Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
obligations of each Lender under this Paragraph 7.04 shall survive the payment
and performance of the Obligations, the termination of this Agreement and any
Lender ceasing to be a party to this Agreement (with respect to events which
occurred prior to the time such Lender ceased to be a Lender hereunder).
7.05. Non-Reliance. Each Lender represents that it has, independently and
without reliance on Agent, or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of the
business, prospects, management, financial condition and affairs of Borrower and
the Subsidiaries and its own decision to enter into this Agreement and agrees
that it will, independently and without reliance upon Agent or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own appraisals and decisions in taking or not taking
action under this Agreement. Neither Agent nor any of its affiliates nor any of
their respective directors, officers, employees, agents or advisors shall (a) be
required to keep any Lender informed as to the performance or observance by
Borrower or any of its Subsidiaries of the obligations under this Agreement or
any other document referred to or provided for herein or to make inquiry of, or
to inspect the properties or books of Borrower or any of its Subsidiaries; (b)
have any duty or responsibility to provide any Lender with any credit or other
information concerning Borrower or any of its Subsidiaries which may come into
the possession of Agent, except for notices, reports and other documents and
information expressly required to be furnished to Lenders by Agent hereunder; or
(c) be responsible to any Lender for (i) any recital, statement, representation
or warranty made by Borrower or any officer, employee or agent of Borrower in
this Agreement or in any of the other Credit Documents, (ii) the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any Credit Document, (iii) the value or
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sufficiency of any collateral or the validity or perfection of any of the liens
or security interests intended to be created by the Credit Documents, or (iv)
any failure by Borrower to perform its obligations under this Agreement or any
other Credit Document.
7.06. Resignation or Removal of Agent. Agent may resign at any time by
giving thirty (30) days prior written notice thereof to Borrower and Lenders,
and Agent may be removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Agent, which Agent, if not a Lender, shall be
reasonably acceptable to Borrower; provided, however, that Borrower shall have
no right to approve a successor Agent if a Default has occurred and is
continuing. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from the duties and obligations
thereafter arising hereunder. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Section VII shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as Agent.
7.07. Authorization. Agent is hereby authorized by Lenders to execute,
deliver and perform, each of the Credit Documents to which Agent is or is
intended to be a party and each Lender agrees to be bound by all of the
agreements of Agent contained in the Credit Documents.
7.08. Agent in its Individual Capacity. Agent and its affiliates may make
loans to, accept deposits from and generally engage in any kind of banking or
other business with Borrower and its Subsidiaries and affiliates as though Agent
were not Agent hereunder. With respect to Loans, if any, made by Agent in its
capacity as a Lender, Agent in its capacity as a Lender shall have the same
rights and powers under this Agreement and the other Credit Documents as any
other Lender and may exercise the same as though it were not Agent, and the
terms "Lender" or "Lenders" shall include Agent in its capacity as a Lender.
SECTION VIII. MISCELLANEOUS.
8.01. Notices. Except as otherwise provided herein, all notices, requests,
demands, consents, instructions or other communications to or upon Borrower or
any Lender Party Agent under this Agreement or the other Credit Documents shall
be in writing and faxed, mailed or delivered, if to Borrower, Issuing Bank or
Agent, at its respective facsimile number or address set forth below or, if to
any Lender, at the address or facsimile number specified beneath the heading
"Address for Notices" under the name of such Lender in Part B of Schedule I (or
to such other facsimile number or address for any party as indicated in any
notice given by that party to the other parties). All such notices and
communications shall be effective (a) when sent by an overnight courier service
of recognized standing, on the second Business Day following the deposit with
such service; (b) when mailed, first class postage prepaid and addressed as
aforesaid through the United States Postal Service, upon receipt; (c) when
delivered by hand, upon delivery; and (d) when faxed, upon confirmation of
receipt; provided, however, that any notice delivered to Agent under Section II
shall not be effective until received by Agent.
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Agent and
Issuing Bank: ABN AMRO Bank N.V.
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
Tel. No: (212) 314-1724
Fax. No: (212) 314-1709
With a copy to:
ABN AMRO Bank N.V.
101 California Street, Suite 4550
San Francisco, CA 94111-5812
Attn: Robin Yim
Tel. No: (415) 984-3712
Fax. No: (415) 362-3524
Borrower: Silicon Valley Group, Inc.
101 Metro Drive, Suite 400
San Jose, CA 95110
Attn: Chief Financial Officer
Tel. No: (408) 434-0500
Fax. No: (408) 434-0216
Each Notice of Borrowing, Notice of Conversion, Notice of Interest Period
Selection and LC Application shall be given by Borrower to Agent's office
located at the address referred to above during Agent's normal business hours;
provided, however, that any such notice received by Agent after 11:00 a.m. on
any Business Day shall be deemed received by Agent on the next Business Day. In
any case where this Agreement authorizes notices, requests, demands or other
communications by Borrower to any Lender Party to be made by telephone or
facsimile, any Lender Party may conclusively presume that anyone purporting to
be a person designated in any incumbency certificate or other similar document
received by Agent or a Lender is such a person.
8.02. Expenses. Borrower shall pay on demand, whether or not any Loan is
made hereunder, (a) all reasonable fees and expenses, including reasonable
attorneys' fees and expenses, incurred by Agent in connection with the
syndication of the facilities provided hereunder, the preparation, negotiation,
execution and delivery of, and the exercise of its duties under, this Agreement
and the other Credit Documents, and the preparation, negotiation, execution and
delivery of amendments and waivers hereunder and thereunder and (b) all
reasonable fees and expenses, including reasonable attorneys' fees and expenses,
incurred by and Lender Parties in the enforcement or attempted enforcement of
any of the Obligations or in preserving any of the Lender Parties' rights and
remedies (including, without limitation, all such fees and expenses incurred in
connection with any "workout" or restructuring affecting the Credit Documents or
the Obligations or any bankruptcy or similar proceeding involving Borrower or
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any of its Subsidiaries). As used herein, the term "reasonable attorneys' fees
and expenses" shall include, without limitation, allocable costs and expenses of
Lender Parties' in-house legal counsel and staff. The obligations of Borrower
under this Paragraph 8.02 shall survive the payment and performance of the
Obligations and the termination of this Agreement.
8.03. Indemnification. To the fullest extent permitted by law, Borrower
agrees to protect, indemnify, defend and hold harmless Lender Parties and their
Affiliates and their respective directors, officers, employees, agents and
advisors ("Indemnitees") from and against any and all liabilities, losses,
damages or expenses of any kind or nature and from any suits, claims or demands
(including in respect of or for reasonable attorney's fees and other expenses)
arising on account of or in connection with any matter or thing or action or
failure to act by Indemnitees, or any of them, arising out of or relating to the
Credit Documents or any transaction contemplated thereby, including without
limitation any use by Borrower of any proceeds of the Loans or any Letter of
Credit, except to the extent such liability arises from the willful misconduct
or gross negligence of such Indemnitee. Upon receiving knowledge of any suit,
claim or demand asserted by a third party that any Lender Party believes is
covered by this indemnity, such Lender Party shall give Borrower notice of the
matter and an opportunity to defend it, at Borrower's sole cost and expense,
with legal counsel reasonably satisfactory to such Lender Party; provided,
however, that Borrower shall not be responsible for the costs and expenses of
more than one such counsel (other than any local counsel and special counsel) in
any such action. Agent or such Lender may also require Borrower to defend the
matter. Any failure or delay of any Lender Party to notify Borrower of any such
suit, claim or demand shall not relieve Borrower of its obligations under this
Paragraph 8.03 but shall reduce such obligations to the extent of any increase
in those obligations caused solely by any such failure or delay which is
unreasonable. The obligations of Borrower under this Paragraph 8.03 shall
survive the payment and performance of the Obligations and the termination of
this Agreement.
8.04. Waivers; Amendments. Any term, covenant, agreement or condition of
this Agreement or any other Credit Document may be amended or waived, and any
consent under this Agreement or any other Credit Document may be given, if such
amendment, waiver or consent is in writing and is signed by Borrower and the
Required Lenders (or Agent on behalf of the Required Lenders with the written
approval of the Required Lenders); provided, however that:
(a) Any amendment, waiver or consent which would (i) increase the
Total Commitment, (ii) extend the Maturity Date, (iii) reduce the
principal of or interest on any Loan or any fees or other amounts
payable for the account of Lenders hereunder, (iv) extend any scheduled
principal, interest or fee payment date, (v) amend this Paragraph 8.04,
or (vi) amend the definition of Required Lenders, must be in writing and
signed or approved in writing by all Lenders;
(b) Any amendment, waiver or consent which increases or decreases
the Commitment of any Lender must be in writing and signed by such
Lender;
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(c) Any amendment, waiver or consent which affects the rights or
obligations of Agent must be in writing and signed by Agent; and
(d) Any amendment, waiver or consent which increases the LC
Commitment or otherwise affects the rights or obligations of Issuing
Bank must be signed by Issuing Bank.
No failure or delay by any Lender Party in exercising any right under this
Agreement or any other Credit Document shall operate as a waiver thereof or of
any other right hereunder or thereunder nor shall any single or partial exercise
of any such right preclude any other further exercise thereof or of any other
right hereunder or thereunder. Unless otherwise specified in such waiver or
consent, a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given.
8.05. Successors and Assigns.
(a) Binding Effect. This Agreement and the other Credit Documents
shall be binding upon and inure to the benefit of Borrower, Lenders,
Agent, all future holders of the Notes and their respective successors
and permitted assigns, except that Borrower may not assign or transfer
any of its rights or obligations under any Credit Document without the
prior written consent of Agent and each Lender.
(b) Participations. Any Lender may at any time sell to one or
more banks or other financial institutions ("Participants")
participating interests in any Loan owing to such Lender, any Note held
by such Lender, any Commitment of such Lender or any other interest of
such Lender under this Agreement and the other Credit Documents;
provided, however, that no Lender may sell a participating interest in
its Loans or Commitment in a principal amount of less than five million
Dollars ($5,000,000). In the event of any such sale by a Lender of
participating interests, such Lender's obligations under this Agreement
shall remain unchanged, such Lender shall remain solely responsible for
the performance thereof, such Lender shall remain the holder of its
Notes for all purposes under this Agreement and Borrower and Agent shall
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement. Any agreement
pursuant to which any such sale is effected may require the selling
Lender to obtain the consent of the Participant in order for such Lender
to agree in writing to any amendment, waiver or consent of a type
specified in clause (i), (ii), (iii) or (iv) of Subparagraph 8.04(a) but
may not otherwise require the selling Lender to obtain the consent of
such Participant to any other amendment, waiver or consent hereunder.
Borrower also agrees that any Lender which has transferred any
participating interest in its Commitment or Loans shall, notwithstanding
any such transfer, be entitled to the full benefits accorded such Lender
under Paragraph 2.10, Paragraph 2.11, and Paragraph 2.12, as if such
Lender had not made such transfer.
(c) Assignments. Any Lender may, at any time, sell and assign to
any Lender or any Eligible Assignee (individually, an "Assignee Lender")
all or a portion of its rights
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and obligations under this Agreement and the other Credit Documents
(such a sale and assignment to be referred to herein as an "Assignment")
pursuant to an assignment agreement in the form of Exhibit F (an
"Assignment Agreement"), executed by each Assignee Lender and such
assignor Lender (an "Assignor Lender") and delivered to Agent for its
acceptance and recording in the Register; provided, however, that:
(i) Without the written consent of Agent, Issuing Bank
and, if no Default has occurred and is continuing, Borrower
(which consent of Agent, Issuing Bank and Borrower shall not be
unreasonably withheld), no Lender may make any Assignment to any
Assignee Lender which is not, immediately prior to such
Assignment, a Lender hereunder or an Affiliate thereof; or
(ii) Without the written consent of Agent and, if no
Default has occurred and is continuing, Borrower (which consent
of Agent and Borrower shall not be unreasonably withheld), no
Lender may make any Assignment to any Assignee Lender if, after
giving effect to such Assignment, the Commitment of such Lender
or such Assignee Lender would be less than Five Million Dollars
($5,000,000) (except that a Lender may make an Assignment which
reduces its Commitment to zero without the written consent of
Borrower and Agent) ; or
(iii) Without the written consent of Agent and, if no
Default has occurred and is continuing, Borrower (which consent
of Agent and Borrower shall not be unreasonably withheld), no
Lender may make any Assignment which does not assign and delegate
an equal pro rata interest in such Lender's Loans, Commitment and
all other rights, duties and obligations of such Lender under
this Agreement and the other Credit Documents.
Upon such execution, delivery, acceptance and recording of each
Assignment Agreement, from and after the Assignment Effective Date
determined pursuant to such Assignment Agreement, (A) each Assignee
Lender thereunder shall be a Lender hereunder with a Commitment as set
forth on Attachment 1 to such Assignment Agreement (under the caption
"Commitment After Assignment") and shall have the rights, duties and
obligations of such a Lender under this Agreement and the other Credit
Documents, and (B) the Assignor Lender thereunder shall be a Lender with
a Commitment as set forth on Attachment 1 to such Assignment Agreement
(under the caption "Commitment After Assignment"), or, if the Commitment
of the Assignor Lender has been reduced to $0, the Assignor Lender shall
cease to be a Lender and to have any obligation to make any Loan;
provided, however, that any such Assignor Lender which ceases to be a
Lender shall continue to be entitled to the benefits of any provision of
this Agreement which by its terms survives the termination of this
Agreement. Each Assignment Agreement shall be deemed to amend Schedule I
to the extent, and only to the extent, necessary to reflect the addition
of each Assignee Lender, the deletion of each Assignor Lender which
reduces its Commitment to $0 and the resulting adjustment of Commitments
arising from the purchase by each Assignee Lender of all or a portion of
the rights and obligations of an Assignor Lender under this Agreement
and the other Credit Documents. On or prior to
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the Assignment Effective Date determined pursuant to each Assignment
Agreement, Borrower, at its own expense, shall execute and deliver to
Agent, in exchange for the surrendered Note, if any, of the Assignor
Lender thereunder, a new Note to the order of each Assignee Lender
thereunder that requests such a note (with each new Note to be in an
amount equal to the Commitment assumed by such Assignee Lender) and, if
the Assignor Lender is continuing as a Lender hereunder, a new Note to
the order of the Assignor Lender if so requested by such Assignor Lender
(with the new Note to be in an amount equal to the Commitment retained
by it). Each such new Note shall be dated the Closing Date and shall
otherwise be in the form of the Note replaced thereby. The Note
surrendered by the Assignor Lender shall be returned by Agent to
Borrower marked "replaced". Each Assignee Lender which was not
previously a Lender hereunder and which is not incorporated under the
laws of the United States of America or a state thereof shall, within
three (3) Business Days of becoming a Lender, deliver to Borrower and
Agent two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224 (or successor applicable form), as the case
may be, certifying in each case that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any
United States federal income taxes.
(d) Register. Agent shall maintain at its address referred to in
Paragraph 8.01 a copy of each Assignment Agreement delivered to it and a
register (the "Register") for the recordation of the names and addresses
of Lenders and the Commitments and Proportionate Shares of each Lender
from time to time. The entries in the Register shall be conclusive in
the absence of manifest error, and Borrower, Agent and Lenders may treat
each Person whose name is recorded in the Register as the owner of the
Loans recorded therein for all purposes of this Agreement. The Register
shall be available for inspection by Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Registration. Upon its receipt of an Assignment Agreement
executed by an Assignor Lender and an Assignee Lender (and, to the
extent required by Subparagraph 8.05(c), by Borrower and Agent) together
with payment to Agent by Assignor Lender of a registration and
processing fee of $3,000, Agent shall (i) promptly accept such
Assignment Agreement and (ii) on the Assignment Effective Date
determined pursuant thereto record the information contained therein in
the Register and give notice of such acceptance and recordation to
Lenders and Borrower. Agent may, from time to time at its election,
prepare and deliver to Lenders and Borrower a revised Schedule I
reflecting the names, addresses and respective Commitments and
Proportionate Shares of all Lenders then parties hereto.
(f) Confidentiality. Subject to Paragraph 8.10, Agent and Lenders
may disclose the Credit Documents and any financial or other information
relating to Borrower or any Subsidiary to each other or to any potential
Participant or Assignee Lender.
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<PAGE> 74
(g) Pledges to Federal Reserve Banks. Notwithstanding any other
provision of this Agreement, any Lender may at any time assign all or a
portion of its rights under this Agreement and the other Credit
Documents to a Federal Reserve Bank. No such assignment shall relieve
the assigning Lender from its obligations under this Agreement and the
other Credit Documents.
8.06. Setoff . In addition to any rights and remedies of Lenders provided
by law, each Lender shall have the right, with the prior consent of Agent but
without prior notice to or consent of Borrower, any such notice and consent
being expressly waived by Borrower to the extent permitted by applicable law,
upon the occurrence and during the continuance of an Event of Default, to
set-off and apply against the Obligations any amount owing from such Lender to
Borrower. The aforesaid right of set-off may be exercised by such Lender against
Borrower or against any trustee in bankruptcy, debtor in possession, assignee
for the benefit of creditors, receiver or execution, judgment or attachment
creditor of Borrower or against anyone else claiming through or against Borrower
or such trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off may not have been exercised
by such Lender at any prior time. Each Lender agrees promptly to notify Borrower
after any such set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off and
application.
8.07. No Third Party Rights. Nothing expressed in or to be implied from
this Agreement is intended to give, or shall be construed to give, any Person,
other than the parties hereto and their permitted successors and assigns
hereunder, any benefit or legal or equitable right, remedy or claim under or by
virtue of this Agreement or under or by virtue of any provision herein.
8.08. Partial Invalidity. If at any time any provision of this Agreement is
or becomes illegal, invalid or unenforceable in any respect under the law or any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions of this Agreement nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction shall in any way be
affected or impaired thereby.
8.09. Jury Trial. EACH OF BORROWER AND THE LENDER PARTIES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY CREDIT DOCUMENT.
8.10. Confidentiality. No Lender Party shall disclose to any Person any
information with respect to Borrower or any of its Subsidiaries which is
furnished pursuant to this Agreement or under the other Credit Documents, except
that any Lender or Agent may disclose any such information (a) to its own
directors, officers, employees, auditors, counsel and other advisors and to its
Affiliates; (b) to any other Lender Party; (c) which is otherwise available to
the public; (d) if required or appropriate in any report, statement or testimony
submitted to any Governmental
70
<PAGE> 75
Authority having or claiming to have jurisdiction over such Lender Party; (e) if
required in response to any summons or subpoena; (f) in connection with any
enforcement by any Lender Party of its rights under this Agreement or the other
Credit Documents or any litigation among the parties relating to the Credit
Documents or the transactions contemplated thereby; (g) to comply with any
Requirement of Law applicable to such Lender Party; (h) to any Assignee Lender
or Participant or any prospective Assignee Lender or Participant, provided that
such Assignee Lender or Participant or prospective Assignee Lender or
Participant agrees to be bound by this Paragraph 8.10; or (i) otherwise with the
prior consent of Borrower; provided, however, that (i) any Lender Party served
with any summons or subpoena demanding the disclosure of any such information
shall use reasonable efforts to notify Borrower promptly of such summons or
subpoena if not prohibited by any Requirement of Law and, if requested by
Borrower and not disadvantageous to such Lender Party, to cooperate with
Borrower in obtaining a protective order restricting such disclosure, and (ii)
any disclosure made in violation of this Agreement shall not affect the
obligations of Borrower and their Subsidiaries under this Agreement and the
other Credit Documents.
8.11. Counterparts. This Agreement may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
[The first signature page follows.]
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<PAGE> 76
IN WITNESS WHEREOF, Borrower, Lenders and Agent have caused this Agreement
to be executed as of the day and year first above written.
BORROWER: SILICON VALLEY GROUP, INC.
By:_________________________________________
Name:____________________________________
Title:___________________________________
AGENT: ABN AMRO BANK N.V.
By:_________________________________________
Name:____________________________________
Title:___________________________________
By:_________________________________________
Name:____________________________________
Title:___________________________________
LENDERS: ABN AMRO BANK N.V.
By:_________________________________________
Name:____________________________________
Title:___________________________________
By:_________________________________________
Name:____________________________________
Title:___________________________________
COMERICA BANK-CALIFORNIA
By:_________________________________________
Name:____________________________________
Title:___________________________________
72
<PAGE> 77
FLEET NATIONAL BANK
By:_________________________________________
Name:____________________________________
Title:___________________________________
KEYBANK NATIONAL ASSOCIATION
By:_________________________________________
Name:____________________________________
Title:___________________________________
WELLS FARGO BANK, N. A.
By:_________________________________________
Name:____________________________________
Title:___________________________________
73
<PAGE> 78
SCHEDULE I
LENDERS
PART A
COMMITMENTS
<TABLE>
<CAPTION>
PROPORTIONATE
LENDER COMMITMENT SHARE
------ ---------- -----
<S> <C> <C>
ABN AMRO Bank N.V. $50,000,000 33.33333333%
Comerica Bank-California $30,000,000 20.00000000%
Fleet National Bank $20,000,000 13.33333333%
KeyBank National $25,000,000 16.66666667%
Association
Wells Fargo Bank, N.A. $25,000,000 16.66666667%
TOTAL $150,000,000 100.00000000%
</TABLE>
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<PAGE> 79
PART B
ADDRESSES, ETC.
ABN AMRO BANK N.V.
Applicable Lending Office (Domestic and Euro-Dollar):
ABN AMRO Bank N.V.
San Francisco International Branch
101 California Street, Suite 4550
San Francisco, CA 94111
Address for Notices:
ABN AMRO Bank N.V.
San Francisco International Branch
101 California Street, Suite 4550
San Francisco, CA 94111
Attn: Robin Yim
Tel. No: (415) 984-3712
Fax No: (415) 362-3524
ABN AMRO North America, Inc.
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
Tel. No: (212) 314-1724
Fax No: (212) 314-1709
Wiring Instructions:
ABN AMRO Bank N.V.
New York, New York
RT/ABA No.: 026009580
Account Name: ABN AMRO San Francisco
Account No.: 6510010545-41
Reference: Silicon Valley Group, Inc. Credit Agreement
I-2
<PAGE> 80
COMERICA BANK - CALIFORNIA
Applicable Lending Office (Domestic and Euro-Dollar):
Comerica Bank - California
55 Almaden Blvd, Second Floor
San Jose, CA 95113
Address for Notices:
Comerica Bank - California
55 Almaden Blvd., Second Floor
San Jose, CA 95113
Attn: Alan Jepson
Tel. No: (408) 291-6628
Fax No: (408) 271-4021
Wiring Instructions:
Comerica Bank - California
ABA No.: 121-137-522
Account Name: Silicon Valley Group
Account No.: 21585-90010
Reference: SVG Loan # 72-1389125-1
I-3
<PAGE> 81
FLEET NATIONAL BANK
Applicable Lending Office (Domestic and Euro-Dollar):
Fleet National Bank
Mail Stop: MAOFD07A
One Federal Street
Boston, MA 02110
Address for Notices:
Credit Contact:
Fleet National Bank
Mail Stop: MAOFD07A
One Federal Street
Boston, MA 02110
Attn: Matthew Glauninger
Tel. No: (617) 346-0029
Fax No: (617) 346-0151
Operations Contact:
Fleet National Bank
Mail Stop: MAOFD07A
One Federal Street
Boston, MA 02110
Attn: Scott Lauder
Tel. No: (617) 346-5424
Fax No: (617) 346-0151
Wiring Instructions:
Fleet National Bank
Boston, MA
ABA No.: 011000138
Account No.: G/L: 1510351
Attn: Matthew Glauninger/Scott Lauder
Reference: Silicon Valley Group, Inc.
I-4
<PAGE> 82
KEYBANK NATIONAL ASSOCIATION
Applicable Lending Office (Domestic and Euro-Dollar):
KeyBank National Association
700 Fifth Avenue, 46th Floor
Seattle, WA 98104
Address for Notices:
Credit Contact:
KeyBank National Association
700 Fifth Avenue, 46th Floor
Seattle, WA 98104
Attn: Mary Young
Tel. No: (206) 684-6085
Fax No: (206) 684-6035
Operations Contact:
KeyBank National Association
431 E. Parkcenter Blvd.
Boise, ID 83705
Attn: Specialty Services Team
Tel. No: (800) 297-5518
Fax No: (800) 297-5495
Wiring Instructions:
KeyBank National Association
Seattle, WA
ABA No.: 125000574
Account No.: 01500163
Attn: Speciality Services Team
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<PAGE> 83
WELLS FARGO BANK, N. A.
Applicable Lending Office (Domestic and Euro-Dollar):
Wells Fargo Bank, N.A.
Commercial Banking Service Center
Loan Accounting Department
201 Third Street, 8th Floor
San Francisco, CA 94163
Address for Notices:
Credit Contact:
Wells Fargo Bank, N.A.
121 Park Center Plaza, 3rd Floor
San Jose, CA 95113
Attn: Karen Barone
Tel. No: (408) 277-6351
Fax No: (408) 295-0639
Operations Contact:
Wells Fargo Bank, N.A.
Commercial Banking Service Center
Loan Accounting Department
201 Third Street, 8th Floor
San Francisco, CA 94163
Attn: Nancy Geimer
Tel. No: (415) 979-0662
Fax No: (415) 512-1946
Wiring Instructions:
Wells Fargo Bank, N. A.
San Francisco, CA
ABA No.: 121-000-248
Credit GL Account No.: 2712-507201
Reference: Silicon Valley Group, Inc.
I-6
<PAGE> 84
SCHEDULE II
PRICING GRID
<TABLE>
<CAPTION>
APPLICABLE MARGIN LC USAGE FEE RATE
----------------- -----------------
SENIOR COMMIT- PERFOR-
DEBT/ PRICING BASE MENT FINANCIAL MANCE
EBITDA PERIOD RATE LIBOR FEE LETTERS LETTERS
RATIO LEVEL LOANS LOANS RATE OF CREDIT OF CREDIT
----- ------- ----- ----- ------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
<1.00* 1 0% 0.650% 0.225% 0.650% 0.325%
-
<1.00** 2 0% 0.750% 0.250% 0.750% 0.375%
-
>1.00, 3 0% 1.000% 0.350% 1.000% 0.500%
<1.50
>1.50, 4 0% 1.375% 0.375% 1.375% 0.6875%
-
<2.00
>2.00 5 0% 1.500% 0.500% 1.500% 0.750%
-
</TABLE>
* And EBITDA >$150,000,000
-
** And EBITDA <$150,000,000
EXPLANATION
1. The Applicable Margin for Base Rate Loans and LIBOR Loans, the
Commitment Fee Rate, and the LC Usage Fee Rate for Financial Letters of
Credit and Performance Letters of Credit will be set for each Pricing
Period and will vary depending upon whether such period is a Level 1
Period, a Level 2 Period, a Level 3 Period, a Level 4 Period or a Level
5 Period.
2. The first Pricing Period, which commences on the date of this Agreement
and ends on June 30, 1998, will be a Level 2 Period.
3. The second pricing period, which commences on July 1, 1998 and ends on
September 30, 1998, will be a Level 1 Period, a Level 2 Period, a Level
3 Period, a Level 4 Period or a Level 5 Period depending upon Borrower's
EBITDA and Senior Debt/EBITDA Ratio for the consecutive four-quarter
period ending on March 30, 1998. (Borrower's EBITDA is a factor only in
determining whether a Pricing Period will be a Level 1 Period or a Level
2 Period when Borrower's Senior Debt/EBITDA is < 1.00.)
-
4. Each Pricing Period thereafter will be a Level 1 Period, a Level 2
Period, a Level 3 Period, a Level 4 Period or a Level 5 Period depending
upon Borrower's EBITDA and Senior Debt/EBITDA Ratio for the consecutive
four-quarter period ending on the last day of the fiscal quarter ending
one quarter prior to the first day of such Pricing Period.
II-1
<PAGE> 85
4. Examples:
(a) Borrower's EBITDA and Senior Debt/EBITDA Ratio for the
consecutive four-quarter period ending on September 30, 1998 are
$160,000,000 and 0.90, respectively. The Pricing Period of January 1,
1999 through March 31, 1999 will be a Level 1 Period.
(b) Borrower's EBITDA and Senior Debt/EBITDA Ratio for the
consecutive four-quarter period ending on December 31, 1998 are
$149,000,000 and 0.98, respectively. The Pricing Period of April 1, 1999
through June 30, 1999 will be a Level 2 Period.
(c) Borrower's EBITDA and Senior Debt/EBITDA Ratio for the
consecutive four-quarter period ending on March 31, 1999 are
$160,000,000 and 1.35, respectively. The Pricing Period of July 1, 1999
through September 30, 1999 will be a Level 3 Period.
II-2
<PAGE> 86
SCHEDULE 3.01
INITIAL CONDITIONS PRECEDENT
A. PRINCIPAL CREDIT DOCUMENTS.
(1) The Credit Agreement, duly executed by Borrower, each Lender
and each Agent; and
(2) A Note payable to each Lender requesting such a note, each
duly executed by Borrower;
B. BORROWER CORPORATE DOCUMENTS.
(1) The Certificate or Articles of Incorporation of Borrower,
certified as of a recent date prior to the Closing Date by the Secretary
of State (or comparable official) of its jurisdiction of incorporation;
(2) A Certificate of Good Standing (or comparable certificate)
for Borrower, certified as of a recent date prior to the Closing Date by
the Secretary of State (or comparable official) of its jurisdiction of
incorporation;
(3) A certificate of the Secretary or an Assistant Secretary of
Borrower, dated the Closing Date, certifying (a) that attached thereto
is a true and correct copy of the Bylaws of Borrower as in effect on the
Closing Date; (b) that attached thereto are true and correct copies of
resolutions duly adopted by the Board of Directors of Borrower and
continuing in effect, which authorize the execution, delivery and
performance by Borrower of this Agreement and the other Credit Documents
executed or to be executed by Borrower and the consummation of the
transactions contemplated hereby and thereby; and (c) that there are no
proceedings for the dissolution or liquidation of Borrower;
(4) A certificate of the Secretary or an Assistant Secretary of
Borrower, dated the Closing Date, certifying the incumbency, signatures
and authority of the officers of Borrower authorized to execute, deliver
and perform this Agreement, the other Credit Documents and all other
documents, instruments or agreements related thereto executed or to be
executed by Borrower; and
(5) Certificates of Good Standing (or comparable certificates)
for Borrower, certified as of a recent date prior to the Closing Date by
the Secretaries of State (or comparable official) of each state in which
Borrower is qualified to do business.
5.02(e)-1
<PAGE> 87
C. MATERIAL SUBSIDIARY CORPORATE DOCUMENTS.
(1) The Certificate of Incorporation (or comparable certificate)
of each domestic Material Subsidiary of Borrower, certified as of a
recent date prior to the Closing Date by the Secretary of State (or
comparable public official) of its state of incorporation; and
(2) A Certificate of Good Standing (or comparable certificate)
for each domestic Material Subsidiary of Borrower, certified as of a
recent date prior to the Closing Date by the Secretary of State (or
comparable public official) of its state of incorporation.
D. FINANCIAL STATEMENTS, FINANCIAL CONDITION, ETC.
(1) A copy of the unaudited Financial Statements of Borrower and
its Subsidiaries for the fiscal quarter ended March 31, 1998 and for the
fiscal year to such date (prepared on a consolidated and consolidating
basis), certified by the chief financial officer of Borrower to present
fairly the financial condition, results of operations and other
information reflected therein and to have been prepared in accordance
with GAAP (subject to normal year-end audit adjustments);
(2) A copy of the audited consolidated Financial Statements of
Borrower for the fiscal year ended September 30, 1997, prepared by
Deloitte & Touche and a copy of the unqualified opinion delivered by
such accountants in connection with such Financial Statements;
(3) A copy of the 10-Q report filed by Borrower with the
Securities and Exchange Commission for the quarter ended March 31, 1998;
(4) A copy of the 10-K report filed by Borrower with the
Securities and Exchange Commission for the fiscal year ended September
30, 1997;
(5) The consolidated plan and forecast of Borrower and its
Subsidiaries for the fiscal year to end September 30, 2000; and
(6) Such other financial, business and other information
regarding Borrower, or any of its Subsidiaries as Agent or any Lender
may reasonably request, including information as to possible contingent
liabilities, tax matters, environmental matters and obligations for
employee benefits and compensation.
E. OPINIONS.
5.02(e)-1
<PAGE> 88
(1) A favorable written opinion of Wilson, Sonsini, Goodrich &
Rosati, counsel for Borrower, each dated the Closing Date, addressed to
Agent for the benefit of Lender Parties, covering such legal matters as
Agent may reasonably request and otherwise in form and substance
satisfactory to Agent.
F. OTHER ITEMS.
(1) A duly completed and timely delivered Notice of Borrowing;
(2) Evidence that the Prior Credit Agreement has been terminated
and all obligations of Borrower thereunder have been satisfied;
(3) A certificate of the President or Chief Financial Officer of
Borrower, addressed to Agent and dated the Closing Date, certifying
that:
(a) The representations and warranties set forth in
Paragraph 4.01 and in the other Credit Documents are true and
correct in all material respects as of such date (except for such
representations and warranties made as of a specified date, which
shall be true as of such date); and
(b) No Default has occurred and is continuing as of such
date;
(4) All fees and expenses payable to Agent and Lenders on or
prior to the Closing Date (including all fees payable to Agent pursuant
to the Agent's Fee Letter);
(5) All reasonable fees and expenses of Agent's counsel through
the Closing Date; and
(6) Such other evidence as any Lender Party may reasonably
request to establish the accuracy and completeness of the
representations and warranties and the compliance with the terms and
conditions contained in this Agreement and the other Credit Documents.
5.02(e)-1
<PAGE> 89
EXHIBIT A
NOTICE OF BORROWING
[Date]
ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to that certain Credit Agreement, dated as of June
30, 1998 (the "Credit Agreement"), among Silicon Valley Group, Inc.
("Borrower"), the financial institutions listed in Schedule I to the Credit
Agreement (the "Lenders") and ABN AMRO Bank N.V., as agent for Lenders (in such
capacity, "Agent"). Unless otherwise indicated, all terms defined in the Credit
Agreement have the same respective meanings when used herein.
2. Pursuant to Subparagraph 2.01(b) of the Credit Agreement, Borrower
hereby irrevocably requests a Borrowing upon the following terms:
(a) The principal amount of the requested Borrowing is to be
$__________;
(b) The requested Borrowing is to consist of ["Base Rate" or
"LIBOR"] Loans;
(c) If the requested Borrowing is to consist of LIBOR Loans, the
initial Interest Period for such Loans will be __________ month[s]; and
(d) The date of the requested Borrowing is to be __________,
____.
3. Borrower hereby certifies to Agent and Lenders that, on the date of
this Notice of Borrowing and after giving effect to the requested Borrowing:
(a) The representations and warranties of Borrower set forth in
Paragraph 4.01 of the Credit Agreement and in the other Credit Documents
are true and correct in all material respects as if made on such date
(except for representations and warranties expressly made as of a
specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Credit Documents are in full force and effect.
4. Please disburse the proceeds of the requested Borrowing to
A-1
<PAGE> 90
________________________________________________________________________________
_______________________________________________________________________________.
IN WITNESS WHEREOF, Borrower has executed this Notice of Borrowing on
the date set forth above.
SILICON VALLEY GROUP, INC.
By:_________________________________
Name:____________________________
Title:___________________________
A-2
<PAGE> 91
EXHIBIT B
NOTICE OF CONVERSION
[Date]
ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to that certain Credit Agreement, dated as of June
30, 1998 (the "Credit Agreement"), among Silicon Valley Group, Inc.
("Borrower"), the financial institutions listed in Schedule I to the Credit
Agreement (the "Lenders") and ABN AMRO Bank N.V., as agent for Lenders (in such
capacity, "Agent"). Unless otherwise indicated, all terms defined in the Credit
Agreement have the same respective meanings when used herein.
2. Pursuant to Subparagraph 2.01(d) of the Credit Agreement, Borrower
hereby irrevocably requests to convert a Borrowing as follows:
(a) The Borrowing to be converted consists of ["Base Rate" or
"LIBOR"] Loans in the aggregate principal amount of $__________ which
were initially advanced to Borrower on __________, ____;
(b) The Loans in the Borrowing are to be converted into ["Base
Rate" or "LIBOR"] Loans;
(c) If such Loans are to be converted into LIBOR Loans, the
initial Interest Period for such Loans commencing upon conversion will
be __________ months; and
(d) The date of the requested conversion is to be __________,
____.
3. Borrower hereby certifies to Agent and Lenders that, on the date of
this Notice of Conversion, and after giving effect to the requested conversion:
(a) The representations and warranties of Borrower set forth in
Paragraph 4.01 of the Credit Agreement and in the other Credit Documents
are true and correct in all material respects as if made on such date
(except for representations and warranties expressly made as of a
specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Credit Documents are in full force and effect.
B-1
<PAGE> 92
IN WITNESS WHEREOF, Borrower has executed this Notice of Conversion on
the date set forth above.
SILICON VALLEY GROUP, INC.
By:_________________________________
Name:____________________________
Title:___________________________
B-2
<PAGE> 93
EXHIBIT C
NOTICE OF INTEREST PERIOD SELECTION
[Date]
ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to that certain Credit Agreement, dated as of June
30, 1998 (the "Credit Agreement"), among Silicon Valley Group, Inc.
("Borrower"), the financial institutions listed in Schedule I to the Credit
Agreement (the "Lenders") and ABN AMRO Bank N.V., as agent for Lenders (in such
capacity, "Agent"). Unless otherwise indicated, all terms defined in the Credit
Agreement have the same respective meanings when used herein.
2. Pursuant to Subparagraph 2.01(e) of the Credit Agreement, Borrower
hereby irrevocably selects a new Interest Period for a Borrowing as follows:
(a) The Borrowing for which a new Interest Period is to be
selected consists of LIBOR Loans in the aggregate principal amount of
$__________ which were initially advanced to Borrower on __________,
____;
(b) The last day of the current Interest Period for such Loans is
___________, ____; and
(c) The next Interest Period for such Loans commencing upon the
last day of the current Interest Period is to be _________ months.
3. Borrower hereby certifies to the Agents and Lenders that, on the date
of this Notice of Interest Period Selection, and after giving effect to the
requested selection:
(a) The representations and warranties of Borrower set forth in
Paragraph 4.01 of the Credit Agreement and in the other Credit Documents
are true and correct in all material respects as if made on such date
(except for representations and warranties expressly made as of a
specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Credit Documents are in full force and effect.
C-1
<PAGE> 94
IN WITNESS WHEREOF, Borrower has executed this Notice of Interest Period
Selection on the date set forth above.
SILICON VALLEY GROUP, INC.
By:_________________________________
Name:____________________________
Title:___________________________
C-2
<PAGE> 95
EXHIBIT D
EXTENSION REQUEST
[Date]
ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to that certain Credit Agreement, dated as of June
30, 1998 (the "Credit Agreement"), among Silicon Valley Group, Inc.
("Borrower"), the financial institutions listed in Schedule I to the Credit
Agreement (the "Lenders") and ABN AMRO Bank N.V., as agent for Lenders (in such
capacity, "Agent"). Unless otherwise indicated, all terms defined in the Credit
Agreement have the same respective meanings when used herein.
2. Pursuant to Subparagraph 2.01(h) of the Credit Agreement, Borrower
hereby irrevocably requests Lenders to extend the term of the Credit Agreement
for an additional one (1) year by extending the current Maturity Date from
[__________] to [__________].
3. Borrower hereby certifies to Agent and Lenders that, on the date of
this Extension Request, and after giving effect to the requested extension:
(a) The representations and warranties of Borrower set forth in
Paragraph 4.01 of the Credit Agreement and in the other Credit Documents
are true and correct in all material respects as if made on such date
(except for representations and warranties expressly made as of a
specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Credit Documents are in full force and effect.
D-1
<PAGE> 96
IN WITNESS WHEREOF, Borrower has executed this Extension Request on the
date set forth above.
SILICON VALLEY GROUP, INC.
By:_________________________________
Name:____________________________
Title:___________________________
CONSENT
The undersigned hereby consents to the extension of the Maturity Date
requested above.
___________________________________
By:_________________________________
Name:____________________________
Title:___________________________
Date: ______________________________
D-2
<PAGE> 97
EXHIBIT E
NOTE
$_______________ _________________,________
________________,________
FOR VALUE RECEIVED, SILICON VALLEY GROUP, INC., a Delaware corporation
("Borrower"), hereby promises to pay to the order of ____________________, a
____________________ ("Lender"), the principal sum of
______________________________ DOLLARS ($__________) or such lesser amount as
shall equal the aggregate outstanding principal balance of the Loans made by
Lender to Borrower pursuant to the Credit Agreement referred to below (as
amended from time to time, the "Credit Agreement"), on or before the Maturity
Date specified in the Credit Agreement; and to pay interest on said sum, or such
lesser amount, at the rates and on the dates provided in the Credit Agreement.
Borrower shall make all payments hereunder, for the account of Lender's
Applicable Lending Office, to Agent as indicated in the Credit Agreement, in
lawful money of the United States and in same day or immediately available
funds.
Borrower hereby authorizes Lender to record on the schedule(s) annexed
to this note the date and amount of each Loan and of each payment or prepayment
of principal made by Borrower and agrees that all such notations shall
constitute prima facie evidence of the matters noted; provided, however, that
the failure of Lender to make any such notation shall not affect Borrower's
obligations hereunder.
This note is one of the Notes referred to in the Credit Agreement, dated
as of June 30, 1998, among Borrower, Lender and the other financial institutions
from time to time parties thereto (collectively, the "Lenders") and ABN AMRO
Bank N.V., as agent for Lenders. This note is subject to the terms of the Credit
Agreement, including the rights of prepayment and the rights of acceleration of
maturity set forth therein. Terms used herein have the meanings assigned to
those terms in the Credit Agreement, unless otherwise defined herein.
The transfer, sale or assignment of any rights under or interest in this
note is subject to certain restrictions contained in the Credit Agreement,
including Paragraph 8.05 thereof.
Borrower shall pay all reasonable fees and expenses, including
reasonable attorneys' fees, incurred by Lender in the enforcement or attempt to
enforce any of Borrower's obligations hereunder not performed when due. Borrower
hereby waives notice of presentment, demand,
E-1
<PAGE> 98
protest or notice of any other kind. This note shall be governed by and
construed in accordance with the laws of the State of California.
SILICON VALLEY GROUP, INC.
By:_________________________________
Name:____________________________
Title:___________________________
E-2
<PAGE> 99
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Amount of Unpaid
Type of Amount of Interest Principal Paid Principal Notation
Date Loan Loan Period or Prepaid Balance Made By
<S> <C> <C> <C> <C> <C> <C>
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
</TABLE>
E-3
<PAGE> 100
EXHIBIT F
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT, dated as of the date set forth at the top of
Attachment 1 hereto, by and among:
(1) The bank designated under item A of Attachment 1 hereto as
the Assignor Lender ("Assignor Lender"); and
(2) Each bank designated under item B of Attachment 1 hereto as
an Assignee Lender (individually, an "Assignee Lender").
RECITALS
A. Assignor Lender is one of Lenders which is a party to the Credit
Agreement dated as of June 30, 1998, by and among Silicon Valley Group, Inc.
("Borrower,") Assignor Lender and the other financial institutions parties
thereto (collectively, the "Lenders") and ABN AMRO Bank N.V., as agent for
Lenders (in such capacity, "Agent"). (Such credit agreement, as amended,
supplemented or otherwise modified in accordance with its terms from time to
time to be referred to herein as the "Credit Agreement").
B. Assignor Lender wishes to sell, and Assignee Lender wishes to
purchase, all or a portion of Assignor Lender's rights under the Credit
Agreement pursuant to Subparagraph 8.05(c) of the Credit Agreement.
AGREEMENT
Now, therefore, the parties hereto hereby agree as follows:
1. Definitions. Except as otherwise defined in this Assignment
Agreement, all capitalized terms used herein and defined in the Credit Agreement
have the respective meanings given to those terms in the Credit Agreement.
2. Sale and Assignment. Subject to the terms and conditions of this
Assignment Agreement, Assignor Lender hereby agrees to sell, assign and delegate
to each Assignee Lender and each Assignee Lender hereby agrees to purchase,
accept and assume the rights, obligations and duties of a Lender under the
Credit Agreement and the other Credit Documents having a Commitment as set forth
under the caption "Commitment Transferred" opposite such Assignee Lender's name
on Attachment 1 hereto and a corresponding Proportionate Share. Such sale,
assignment and delegation shall become effective on the date designated in
Attachment 1 hereto (the "Assignment Effective Date"), which date shall be,
unless Agent shall otherwise consent, at least five (5) Business Days after the
date following the date counterparts of this Assignment Agreement are delivered
to Agent in accordance with Paragraph 3 hereof.
F-1
<PAGE> 101
3. Assignment Effective Notice. Upon (a) receipt by Agent of five (5)
counterparts of this Assignment Agreement (to each of which is attached a fully
completed Attachment 1), each of which has been executed by Assignor Lender and
each Assignee Lender (and, to the extent required by Subparagraph 8.05(c) of the
Credit Agreement, by Borrower and Agent) and (b) payment to Agent of the
registration and processing fee specified in Subparagraph 8.05(e) of the Credit
Agreement by Assignor Lender, Agent will transmit to Borrower, Assignor Lender
and each Assignee Lender an Assignment Effective Notice substantially in the
form of Attachment 2 hereto, fully completed (an "Assignment Effective Notice").
4. Assignment Effective Date. At or before 12:00 noon (local time of
Assignor Lender) on the Assignment Effective Date, each Assignee Lender shall
pay to Assignor Lender, in immediately available or same day funds, an amount
equal to the purchase price, as agreed between Assignor Lender and such Assignee
Lender (the "Purchase Price"), for the Commitment and Proportionate Share
purchased by such Assignee Lender hereunder. Effective upon receipt by Assignor
Lender of the Purchase Price payable by each Assignee Lender, the sale,
assignment and delegation to such Assignee Lender of such Commitment and
Proportionate Share as described in Paragraph 2 hereof shall become effective.
5. Payments After the Assignment Effective Date. Assignor Lender and
each Assignee Lender hereby agree that Agent shall, and hereby authorize and
direct Agent to, allocate amounts payable under the Credit Agreement and the
other Credit Documents as follows:
(a) All principal payments made after the Assignment Effective
Date with respect to each Commitment and Proportionate Share assigned to
an Assignee Lender pursuant to this Assignment Agreement shall be
payable to such Assignee Lender.
(b) All interest, fees and other amounts accrued after the
Assignment Effective Date with respect to each Commitment and
Proportionate Share assigned to an Assignee Lender pursuant to this
Assignment Agreement shall be payable to such Assignee Lender.
Assignor Lender and each Assignee Lender shall make any separate arrangements
between themselves which they deem appropriate with respect to payments between
them of amounts paid under the Credit Documents on account of the Commitment and
Proportionate Share assigned to such Assignee Lender, and neither Agent nor
Borrower shall have any responsibility to effect or carry out such separate
arrangements.
6. Delivery of Notes. On or prior to the Assignment Effective Date, (a)
Assignor Lender will deliver to Agent the Note, if any, payable to Assignor
Lender and (b) Borrower will deliver to Agent, to the extent requested, new
Notes for each Assignee Lender and Assignor Lender, in each case in principal
amounts reflecting, in accordance with the Credit Agreement, their respective
Commitments (as adjusted pursuant to this Assignment Agreement). As provided in
Subparagraph 8.05(c) of the Credit Agreement, each such new Note shall be dated
the Closing Date. Promptly after the Assignment Effective Date, Agent will send
to each of
F-2
<PAGE> 102
Assignor Lender and the Assignee Lenders its new Notes and will send to Borrower
the superseded Note payable to Assignor Lender, marked "Replaced."
7. Delivery of Copies of Credit Documents. Concurrently with the
execution and delivery hereof, Assignor Lender will provide to each Assignee
Lender (if it is not already a Lender party to the Credit Agreement) conformed
copies of all documents delivered to Assignor Lender on or prior to the Closing
Date in satisfaction of the conditions precedent set forth in the Credit
Agreement.
8. Further Assurances. Each of the parties to this Assignment Agreement
agrees that at any time and from time to time upon the written request of any
other party, it will execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in order to
effect the purposes of this Assignment Agreement.
9. Further Representations, Warranties and Covenants. Assignor Lender
and each Assignee Lender further represent and warrant to and covenant with each
other, Agent and Lenders as follows:
(a) Other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned hereby free
and clear of any adverse claim, Assignor Lender makes no representation
or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with
the Credit Agreement or the other Credit Documents or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of
the Credit Agreement or the other Credit Documents furnished or any
collateral or any security interest therein.
(b) Assignor Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of
Borrower or any of its obligations under the Credit Agreement or any
other Credit Documents.
(c) Each Assignee Lender confirms that it has received a copy of
the Credit Agreement and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter
into this Assignment Agreement.
(d) Each Assignee Lender will, independently and without reliance
upon Agent, Assignor Lender or any other Lender and based upon such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under the Credit Agreement and the other Credit Documents.
(e) Each Assignee Lender appoints and authorizes Agent to take
such action as Agent on its behalf and to exercise such powers under the
Credit Agreement and the other Credit Documents as Agent is authorized
to exercise by the terms thereof, together with such powers as are
reasonably incidental thereto, all in accordance with Section VII of the
Credit Agreement.
F-3
<PAGE> 103
(f) Each Assignee Lender agrees that it will perform in
accordance with their terms all of the obligations which by the terms of
the Credit Agreement and the other Credit Documents are required to be
performed by it as a Lender.
(g) Attachment 1 hereto sets forth administrative information
with respect to each Assignee Lender.
10. Effect of this Assignment Agreement. On and after the Assignment
Effective Date, (a) each Assignee Lender shall be a Lender with a Commitment
equal to the Commitment set forth under the caption "Commitment After
Assignment" opposite such Assignee Lender's name on Attachment 1 hereto and a
corresponding Proportionate Share and shall have the rights, duties and
obligations of such a Lender under the Credit Agreement and the other Credit
Documents and (b) Assignor Lender shall be a Lender with a Commitment equal to
the Commitment set forth under the caption "Commitment After Assignment"
opposite Assignor Lender's name on Attachment 1 hereto a corresponding
Commitment and shall have the rights, duties and obligations of such a Lender
under the Credit Agreement and the other Credit Documents, or, if the Commitment
of Assignor Lender has been reduced to $0, Assignor Lender shall cease to be a
Lender and shall have no further obligation to make any Loans.
11. Miscellaneous. This Assignment Agreement shall be governed by, and
construed in accordance with, the laws of the State of California. Paragraph
headings in this Assignment Agreement are for convenience of reference only and
are not part of the substance hereof.
F-4
<PAGE> 104
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement to be executed by their respective duly authorized officers as of the
date set forth in Attachment 1 hereto.
______________________________________,as
Assignor Lender
By:______________________________________
Name:_________________________________
Title:________________________________
___________________________________,as an
Assignee Lender
By:______________________________________
Name:_________________________________
Title:________________________________
___________________________________,as an
Assignee Lender
By:______________________________________
Name:_________________________________
Title:________________________________
___________________________________,as an
Assignee Lender
By:______________________________________
Name:_________________________________
Title:________________________________
F-5
<PAGE> 105
CONSENTED TO AND ACKNOWLEDGED BY:
__________________________________
By:_______________________________
Name:__________________________
Title:_________________________
__________________________________,
As Agent
By:_______________________________
Name:__________________________
Title:_________________________
ACCEPTED FOR RECORDATION
IN REGISTER:
__________________________________,
As Agent
By:_______________________________
Name:__________________________
Title:_________________________
F-6
<PAGE> 106
ATTACHMENT 1
TO ASSIGNMENT AGREEMENT
NAMES, ADDRESSES AND PROPORTIONATE SHARES
OF ASSIGNOR LENDER AND ASSIGNEE LENDERS
AND ASSIGNMENT EFFECTIVE DATE
______________, ____
<TABLE>
<CAPTION>
Commitment
Commitment After
A. ASSIGNOR LENDER Transferred(1),(2) Assignment(1)
--------------- ----------------- --------------
<S> <C> <C>
% %
--------------------------- ------------------- --------------------
Applicable Lending Office:
---------------------------
---------------------------
---------------------------
---------------------------
Address for Notices:
---------------------------
---------------------------
---------------------------
---------------------------
Telephone No.:
------------
Telecopier No.:
------------
Wiring Instructions:
---------------------------
---------------------------
</TABLE>
- --------
(1) To be expressed by a percentage rounded to the [eighth]-digit to the right
of the decimal point.
(2) Share of Total Commitment sold by Assignor Lender, and share of the total
Commitment purchased by Assignee Lender.
F(1)-1
<PAGE> 107
<TABLE>
<CAPTION>
Commitment
Commitment After
B. ASSIGNEE LENDERS Transferred(1),(2) Assignment(1)
---------------- ----------------- --------------
<S> <C> <C>
% %
--------------------------- ------------------- --------------------
Applicable Lending Office:
---------------------------
---------------------------
---------------------------
---------------------------
Address for Notices:
---------------------------
---------------------------
---------------------------
---------------------------
Telephone No.:
------------
Telecopier No.:
------------
Wiring Instructions:
---------------------------
---------------------------
</TABLE>
- --------
(1) To be expressed by a percentage rounded to the [eighth]-digit to the right
of the decimal point.
(2) Share of Total Commitment sold by Assignor Lender, and share of the total
Commitment purchased by Assignee Lender.
F(1)-2
<PAGE> 108
<TABLE>
<CAPTION>
Commitment
Commitment After
B. ASSIGNEE LENDERS Transferred(1),(2) Assignment(1)
---------------- ----------------- --------------
(cont'd)
<S> <C> <C>
% %
--------------------------- ------------------- --------------------
Applicable Lending Office:
---------------------------
---------------------------
---------------------------
---------------------------
Address for Notices:
---------------------------
---------------------------
---------------------------
---------------------------
Telephone No.:
------------
Telecopier No.:
------------
Wiring Instructions:
---------------------------
---------------------------
C. ASSIGNMENT EFFECTIVE DATE:
,
--------------- ----------
</TABLE>
- --------
(1) To be expressed by a percentage rounded to the [eighth]-digit to the right
of the decimal point.
(2) Share of Total Commitment sold by Assignor Lender, and share of the total
Commitment purchased by Assignee Lender.
F(1)-3
<PAGE> 109
ATTACHMENT 2
TO ASSIGNMENT AGREEMENT
FORM OF
ASSIGNMENT EFFECTIVE NOTICE
Reference is made to the Credit Agreement, dated as of June 30, 1998,
among Silicon Valley Group, Inc. ("Borrower"), the financial institutions
parties thereto (the "Lenders") and ABN AMRO Bank N.V., as agent for Lenders (in
such capacity, "Agent"). Agent hereby acknowledges receipt of five executed
counterparts of a completed Assignment Agreement, a copy of which is attached
hereto. [Note: Attach copy of Assignment Agreement.] Terms defined in such
Assignment Agreement are used herein as therein defined.
1. Pursuant to such Assignment Agreement, you are advised that the
Assignment Effective Date will be __________.
2. Pursuant to such Assignment Agreement, Assignor Lender is required to
deliver to Agent on or before the Assignment Effective Date the Note, if any,
payable to Assignor Lender.
3. Pursuant to such Assignment Agreement, Borrower is required to
deliver to Agent on or before the Assignment Effective Date the following Notes,
each dated _________________ [Insert appropriate date]:
[Describe each new Note for Assignor Lender and each Assignee Lender as
to principal amount.]
4. Pursuant to such Assignment Agreement, each Assignee Lender is
required to pay its Purchase Price to Assignor Lender at or before 12:00 Noon on
the Assignment Effective Date in immediately available funds.
Very truly yours,
ABN AMRO Bank N.V.
as Agent
By:_________________________________
Name:____________________________
Title:___________________________
F(2)-1
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S FINANCIAL STATEMENTS FOR THIRD QUARTER OF FISCAL 1998 AS FILED IN THE
COMPANY'S FORM 10Q FOR THE QUARTER ENDED JUNE 30, 1998 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FORM 10Q.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> SEP-30-1998
<PERIOD-START> APR-01-1998
<PERIOD-END> JUN-30-1998
<CASH> 116,754
<SECURITIES> 42,969
<RECEIVABLES> 142,397
<ALLOWANCES> 7,641
<INVENTORY> 236,028
<CURRENT-ASSETS> 556,874
<PP&E> 311,106
<DEPRECIATION> 121,661
<TOTAL-ASSETS> 756,794
<CURRENT-LIABILITIES> 156,828
<BONDS> 0
0
0
<COMMON> 402,856
<OTHER-SE> 185,517
<TOTAL-LIABILITY-AND-EQUITY> 756,794
<SALES> 116,385
<TOTAL-REVENUES> 116,385
<CGS> 78,297
<TOTAL-COSTS> 78,297
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 227
<INCOME-PRETAX> (11,357)
<INCOME-TAX> (4,540)
<INCOME-CONTINUING> (6,817)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (6,817)
<EPS-PRIMARY> (0.21)<F1>
<EPS-DILUTED> (0.21)
<FN>
<F1> EPS Primary is used for EPS Basic.
</FN>
</TABLE>
