SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-K
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended ...November 1, 1998...
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from................. to ................
Commission file number...0-15451...
...PHOTRONICS, INC....
(Exact name of registrant as specified in its charter)
...Connecticut... ...06-0854886...
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
...1061 East Indiantown Road, Jupiter, Florida... ..33477..
(Address of principal executive offices) (Zip Code)
...(561) 745-1222...
(Registrant's telephone number, including area code)
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
Title of each class Name of each exchange on which
registered
______None______ ___________________
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
.....Common Stock, $0.01 par value per share.....
(Title of Class)
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 .....
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained
to the best of registrant's knowledge in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [X]
As of December 31, 1998, 23,944,075 shares of the registrant's Common
Stock were outstanding. The aggregate market value of registrant's voting
stock held by non-affiliates of the registrant as of December 31, 1998 was
approximately $497,417,000.
________________________
DOCUMENTS INCORPORATED BY REFERENCE
Proxy Statement for the 1999 Incorporated into Part
Annual Meeting of Shareholders III of this Form 10-K.
to be held on March 23, 1999.
<PAGE>
PART I
ITEM 1. BUSINESS
General
Photronics, Inc. (the "Company") is a leading manufacturer of
photomasks, which are high precision photographic quartz plates containing
microscopic images of electronic circuits. Photomasks are a key element
in the manufacture of semiconductors and are used as masters to transfer
circuit patterns onto semiconductor wafers during the fabrication of
integrated circuits and, to a lesser extent, other types of electrical
components.
During fiscal 1998, the Company continued to invest in its global
manufacturing network and enhance its technological and manufacturing
capabilities. In the United States, the Company's new Austin, Texas
facility became operational in early 1998. In addition, on December 31,
1997 the Company acquired the internal photomask manufacturing operations
of Motorola, Inc. ("Motorola") in Mesa, Arizona. The assets acquired
include modern manufacturing systems capable of supporting a wide range of
photomask technologies. Additionally, the Company entered into a supply
agreement whereby it will supply the photomask requirements previously
provided by the acquired operation. The Company continues to operate the
facility in place.
During the year, the Company also re-organized its Silicon Valley
operations and consolidated its Colorado Springs operations (other than
its large area mask operations) into its other North American facilities.
The large area mask operations were not significant to the Company and are
being continued in place pending divestiture. Further, due to market
conditions, the Company delayed the commencement of construction of its
proposed Hillsboro, Oregon facility.
In addition to its other efforts during fiscal 1998, the Company
increased its research and development activities and continued to invest
in advanced manufacturing equipment to allow it to meet future
technological and volume demands.
The Company believes that its efforts have established it as a
leading independent photomask manufacturer on a global basis and provides
it with the facilities and expertise to continue to expand its sales base.
The Company, through its wholly-owned subsidiary Beta Squared, Inc.
("Beta Squared"), sells and services wafer plasma etching systems and
engages in the sale of refurbished semiconductor manufacturing equipment,
engineering services and replacement parts, and field service for such
equipment on a third-party basis.
The Company is a Connecticut corporation, organized in 1969. Its
principal executive offices are located at 1061 East Indiantown Road,
Jupiter, Florida, telephone (561) 745-1222.
<PAGE>
Manufacturing Technology
The Company manufactures photomasks, which are primarily used as
masters to transfer circuit patterns onto semiconductor wafers. The
Company's photomasks are manufactured in accordance with circuit designs
provided on a confidential basis by its customers. The typical
manufacturing process for one of the Company's photomasks involves receipt
and conversion of circuit design data to manufacturing pattern data. This
manufacturing data is then used to control the lithography system that
exposes the circuit pattern onto the photomask blank. The exposed areas
are dissolved and etched to produce that pattern on the photomask. The
photomask is inspected for defects and conformity to the customer design
data, any defects are repaired, any required pellicles (or protective
membranes) are applied and, after final cleaning, the photomask is shipped
to the customer.
The Company currently supports customers across the full spectrum of
integrated circuit production technologies by manufacturing photomasks
using electron beam or laser-based technologies and, to a significantly
lesser degree, optical-based technologies. Laser-based or electron beam
systems are the predominant technologies used for photomask manufacturing.
Such technologies are capable of producing the finer line resolution,
lighter overlay and larger die size for the larger and more complex
circuits currently being designed. Laser and electron beam generated
photomasks can be used with the most advanced processing techniques to
produce VLSI (very large scale integrated circuit) devices. The Company
currently owns a number of laser writing systems and electron beam systems
and has committed to purchase additional advanced systems in order to
maintain technological leadership. Compared to laser or electron beam
generated photomasks, the production of photomasks by the optical method
is less expensive, but also less precise. The optical method
traditionally is used on less complex and lower priced photomasks.
The first several levels of photomasks sometimes are required to be
delivered by the Company within 24 hours from the time it receives a
customer's design. The ability to manufacture high quality photomasks
within short time periods is dependent upon efficient manufacturing
methods, high yields and high equipment reliability. The Company believes
that it meets these requirements and has made significant investments in
manufacturing and data processing systems and statistical process control
methods to optimize the manufacturing process and reduce cycle times.
Quality control is an integral part of the photomask manufacturing
process. Photomasks are manufactured in temperature, humidity and
particulate controlled clean rooms because of the high level of precision,
quality and yields required. Each photomask is inspected several times
during the manufacturing process to ensure compliance with customer
specifications. The Company has made a substantial investment in
equipment to inspect and repair photomasks and to ensure that customer
specifications are met. After inspection and any necessary repair, the
Company utilizes technological processes to clean the photomasks prior to
shipment.
<PAGE>
Sales and Marketing
The market for photomasks primarily consists of semiconductor
manufacturers and designers, both domestic and international, including
manufacturers that have the capability to manufacture photomasks.
Generally, the Company and each of its customers engage in a qualification
and correlation process before the Company becomes an approved supplier.
Thereafter, the Company typically negotiates pricing parameters for a
customer's orders based on the customer's specifications in order to
expedite the placement of individual purchase orders. Some of these
prices may remain in effect for an extended period. The Company also
negotiates prices, and occasionally enters into purchase arrangements,
based on the understanding that, so long as the Company's performance is
competitive, the Company will receive a specified percentage of that
customer's photomask requirements.
The Company conducts its sales and marketing activities through a
staff of full-time sales personnel and customer service representatives
who work closely with the Company's general management and technical
personnel. In addition to the sales personnel at the Company's
manufacturing facilities in Brookfield, Connecticut; Milpitas and
Sunnyvale, California; Allen and Austin, Texas; Dresden, Germany;
Manchester, United Kingdom; Neuchatel, Switzerland; and Singapore, the
Company has sales offices in Carlsbad and Pasadena, California; Colorado
Springs, Colorado; Raleigh, North Carolina; Hillsboro, Oregon; Lancaster,
United Kingdom; and Taiwan.
The Company supports international customers through both its
domestic and foreign facilities. The Company also has sub-contract
manufacturing arrangements in Taiwan and Korea. The Company considers its
presence in international markets important to attracting new customers,
providing global solutions to its existing customers and serving customers
that utilize manufacturing foundries outside of the United States,
principally in Asia. For a statement of the amount of net sales,
operating income or loss, and identifiable assets attributable to each of
the Company's geographic areas of operations, see Note 12 of Notes to the
Consolidated Financial Statements.
Equipment Sales and Services
In addition to the manufacture of photomasks, the Company, through
its wholly-owned subsidiary, Beta Squared, manufactures, sells and
services a wafer plasma etching system used in the processing of
semiconductor wafers. The original system was developed by Texas
Instruments which licensed to Beta Squared the right to manufacture and
sell the system. Beta Squared also sells refurbished semiconductor
manufacturing equipment, engineering services and replacement parts and
field service for such equipment on a third-party basis. Such activities
represented approximately 2% of the Company's net sales during fiscal
1998.
<PAGE>
Customers
The Company primarily sells its products to leading semiconductor
manufacturers. The Company's largest customers during fiscal 1998
included the following:
Analog Devices, Inc. National Semiconductor
Atmel Corporation Corporation
Chartered Semiconductor Orbit Semiconductor Inc.
Manufacturing, Ltd. Philips Electronics NV
Cirrus Logic, Inc. Mitel Corporation
Cypress Semiconductor Corporation Raytheon Co.
Intel Corporation Rockwell International Corporation
Integrated Device Technology, Inc. ST Microelectronics
LSI Logic Corp. Symbios Logic, Inc.
Lucent Technologies, Inc. Texas Instruments Incorporated
Motorola, Inc. VLSI Technology, Inc.
The Company has continually expanded its customer base and, during
fiscal 1998, sold its products and services to approximately 400
customers. During fiscal 1998, no single customer other than Texas
Instruments accounted for more than 10% of the Company's net sales. The
Company's five largest customers, in the aggregate, accounted for
approximately 43% of net sales in fiscal 1998. A significant decrease in
the amount of sales to any of these customers could have a material
adverse effect on the Company.
Research and Development
The Company conducts ongoing research and development programs
intended to maintain the Company's leadership in technology and
manufacturing efficiency. Since fiscal 1994, the Company has increased
its investment in research and development activities and current efforts
include deep ultraviolet, phase-shift and optical proximity correction
photomasks for advanced semiconductor manufacturing as well as photomasks
for next generation "post-optical" manufacturing technologies. Phase-
shift and optical proximity correction photomasks use advanced lithography
techniques for enhanced resolutions of images on a semiconductor wafer.
Next generation "Post-optical" manufacturing technologies use an exposure
source other than light (such as an x-ray or electron beam source) for
wafer patterning and are designed for the manufacture of integrated
circuits with critical dimensions below that believed possible with
currently utilized optical exposure methods. Post-optical manufacturing
technologies are still under development and have not yet been adopted as
standard production methods. The Company incurred expenses of $8.5
million, $10.6 million and $12.9 million for research and development in
fiscal 1996, 1997 and 1998, respectively. While the Company believes that
it possesses valuable proprietary information and has received licenses
under certain patents, the Company does not believe that patents are a
material factor in the photomask manufacturing business and it holds only
one patent.
Materials and Supplies
Raw materials utilized by the Company generally include high
precision quartz plates, which are used as photomask blanks, primarily
obtained from Japanese suppliers (including Toppan Printing Co., Ltd.
["Toppan"] and Hoya Corporation ["Hoya"]), pellicles (which are protective
<PAGE>
transparent cellulose membranes) and electronic grade chemicals used in
the manufacturing process. Such materials are generally available from a
number of suppliers and the Company is not dependent on any one supplier
for its raw materials. The Company believes that its utilization of a
broad range of suppliers enables it to access the most advanced material
technology available. The Company has established purchasing arrangements
with each of Toppan and Hoya and it is expected that the Company will
purchase substantially all of its photomask blanks from Toppan and Hoya so
long as their price, quality, delivery and service are competitive.
The Company relies on a limited number of equipment suppliers to
develop and supply the equipment used in the photomask manufacturing
process. Although the Company has been able to obtain equipment on a
timely basis, the inability to obtain equipment when required could
adversely affect the Company's business and results of operations. The
Company also relies on these suppliers to develop future generations of
manufacturing systems to support the Company's requirements.
Backlog
The first several levels of photomasks for a circuit sometimes are
required to be shipped within 24 hours of receiving a customer's design.
Because of the short period between order and shipment dates (typically
from one day to two weeks) for the principal portion of the Company's
sales, the dollar amount of current backlog is not considered to be a
reliable indication of future sales volume.
Competition
The photomask industry is highly competitive and most of the
Company's customers utilize more than one photomask supplier. The
Company's ability to compete depends primarily upon the consistency of
product quality and timeliness of delivery, as well as pricing, technical
capability and service. The Company also believes that proximity to
customers is an important factor in certain markets. Certain competitors
have considerably greater financial and other resources than the Company.
The Company believes that it is able to compete effectively because of its
dedication to customer service, its investment in state-of-the-art
photomask equipment and facilities and its experienced technical
employees.
Since the mid-1980s there has been a decrease in the number of
independent manufacturers as a result of independents being acquired or
discontinuing operations. The Company believes that entry into the market
by a new independent manufacturer would require a major investment of
capital, a significant period of time to establish a commercially viable
operation and additional time to attain meaningful market share and
achieve profitability. In the past, competition and relatively flat
demand led to pressure to reduce prices which the Company believes
contributed to the decrease in the number of independent manufacturers.
Although independent photomask manufacturers experienced increased demand
since late 1993, recently photomask demand has softened and pricing
pressures have re-emerged.
Based upon available market information, the Company believes that it
has a larger share of the United States market than any other photomask
manufacturer and that it is one of the largest photomask manufacturers in
the world. Competitors in the United States include DuPont Photomasks and
<PAGE>
Align-Rite International; and in international markets, Dai Nippon
Printing, Toppan, Hoya, DuPont, Taiwan Mask Corp., Innova, Precision
Semiconductor Mask Corp., Align-Rite and Compugraphics. In addition, some
of the Company's customers possess their own captive facilities for
manufacturing photomasks and certain semiconductor manufacturers market
their photomask manufacturing services to outside customers as well as to
their internal organization.
Employees
As of November 1, 1998, the Company employed approximately 1,180
persons on a full-time basis. The Company believes that it offers
competitive compensation and other benefits and that its employee
relations are good. Except for employees in the United Kingdom, none of
the Company's employees is represented by a union.
ITEM 1A. EXECUTIVE OFFICERS OF REGISTRANT
The names of the executive officers of the Company are set forth
below, together with the positions held by each person in the Company.
All executive officers are elected annually by the Board of Directors and
serve until their successors are duly elected and qualified.
SERVED AS AN
NAME AND AGE POSITION OFFICER SINCE
Constantine S. Macricostas, 63 Chairman of the 1974
Board, Member of the
Office of the Chief
Executive and Director
Michael J. Yomazzo, 56 Vice Chairman, Member 1977
of the Office of the
Chief Executive and
Director
James R. Northup, 38 President and Member of 1994
the Office of the Chief
Executive
Jeffrey P. Moonan, 42 Executive Vice President - 1988
Finance and Administration,
Member of the Office of the
Chief Executive, General
Counsel and Secretary
Brian J. Hambidge, 54 Executive Vice President - 1997
Worldwide Operations
Robert J. Bollo, 54 Vice President/Finance 1994
and Chief Financial
Officer
For the past five years each of the executive officers of the Company
held the office shown, except as follows:
<PAGE>
Mr. Macricostas served as Chief Executive Officer until August 1997.
Mr. Macricostas also serves as a Director of Nutmeg Federal Savings and
Loan Association and the DII Group, Inc., a supplier of integrated
electronic manufacturing products and services.
Michael J. Yomazzo has been Vice Chairman since January 1, 1999.
From August 1997 until January 1999, he served as President and Chief
Executive Officer, from January 1994 until August 1997 he served as
President and Chief Operating Officer and from November 1990 until January
1994, he served as Executive Vice President and Chief Financial Officer.
James R. Northup has been President since January 1, 1999. From
November 1996 until January, 1999, he served as Senior Vice President -
North American Operations, from January 1996 to November 1996, he served
as Vice President - Operations, and from January 1994 to January 1996, he
served as Director of Connecticut Operations.
Jeffrey P. Moonan has been Executive Vice President since January 1,
1999. From January 1994 until January 1999, he served as Senior Vice
President. He has also served as General Counsel and Secretary since July
1988. From July 1989 until January 1994, he also served as Vice
President/Administration.
Brian J. Hambidge has served as Executive Vice President - Worldwide
Operations since April 1998. From April 1997 until April 1998, he served
as Vice President - European Operations. For more than three years prior
thereto, he served in various executive manufacturing positions with GEC
Plessey Semiconductors.
Robert J. Bollo has been Vice President/Finance and Chief Financial
Officer since November 1994. From August 1994 to November 1994, he served
as Director of Finance. From April 1992 to July 1994, he was a Principal
of CFO Associates, Inc., a financial management firm.
ITEM 2. DESCRIPTION OF PROPERTY
The Company's properties include buildings in which the Company
currently conducts manufacturing operations or land for future
construction of facilities. The following table presents certain
information about the Company's manufacturing facilities.
Facility Size Type of
Location (sq.ft.) Interest
Brookfield, CT (Building #1) 19,600 Owned
Brookfield, CT (Building #2) 20,000 Leased
Milpitas, CA (2 buildings) 49,000 Leased
Sunnyvale, CA (3 buildings) 40,000 Owned
Colorado Springs, CO 27,000 Leased
Allen, TX 60,000 Owned
Austin, TX 50,000 Owned
Manchester, UK 42,000 Owned
Neuchatel, Switzerland 7,000 Leased
Singapore 20,000 Leased
Dresden, Germany 10,000 Leased
Lease terms range from five years with options to renew to up to
twenty years for other facilities. In addition, the Company leases office
space in Jupiter, Florida; Carlsbad and Pasadena, California; Hillsboro,
<PAGE>
Oregon and certain adjacent property in Brookfield, Connecticut. The
Company has also obtained property in Brookfield, Connecticut and
Hillsboro, Oregon for the construction of additional facilities.
The Company believes it has made adequate arrangements for the lease
or ownership of its current manufacturing facilities and continually
evaluates opportunities for further expansion, both domestically and
internationally.
The leased properties in Brookfield, Connecticut, are leased from
entities controlled by Constantine S. Macricostas under fixed lease rates
which were determined by reference to fair market value rates at the
beginning of the respective lease term. Mr. Macricostas is Chairman of
the Board and a Director of the Company.
For the year ended November 1, 1998, the Company leased real property
and equipment at an aggregate annual rental of approximately $4.4 million.
Other than new manufacturing facilities or equipment which have not
yet been placed into service and property held for the possible
construction of facilities, the Company believes it substantially utilized
its facilities during the 1998 fiscal year.
ITEM 3. LEGAL PROCEEDINGS
The Company is not a party to any material pending legal proceedings,
nor is the property of the Company subject to any such proceedings.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDERS' MATTERS
The Common Stock of the Company is traded on the NASDAQ National
Market System (NMS) under the symbol PLAB. The table below shows the
range of high and low sale prices per share for each quarter for fiscal
year 1998 and 1997, as reported on the NASDAQ NMS. All per share prices
have been adjusted for a two-for-one stock split for shareholders of
record on November 17, 1997.
High Low
------ ------
Fiscal Year Ended November 1, 1998:
Quarter Ended February 1, 1998 $25.75 $18.00
Quarter Ended May 3, 1998 37.88 23.00
Quarter Ended August 2, 1998 37.13 16.38
Quarter Ended November 1, 1998 22.94 9.50
Fiscal Year Ended November 2, 1997:
Quarter Ended February 2, 1997 $20.13 $11.75
Quarter Ended May 4, 1997 19.25 13.13
Quarter Ended August 3, 1997 28.50 17.31
Quarter Ended November 2, 1997 32.06 16.75
On December 31, 1998, the closing sale price for the Common Stock as
reported by NASDAQ was $23.97. Based on information available to the
<PAGE>
Company, the Company believes it has approximately 5,000 beneficial
shareholders.
The Company has not paid any cash dividend to date and, for the
foreseeable future, anticipates that earnings will continue to be retained
for use in its business.
ITEM 6. SELECTED FINANCIAL DATA
The following selected financial data is derived from the Company's
consolidated financial statements. The data should be read in conjunction
with the consolidated financial statements and notes thereto and other
financial information included elsewhere in this Form 10-K. All share and
per share amounts have been adjusted for a two-for-one stock split for
shareholders of record on November 17, 1997.
<TABLE>
<CAPTION> Years Ended
--------------------------------------------------------------------------
November 1, November 2, October 31, October 31, October 31,
1998 1997 1996 1995 1994
----------- ----------- ----------- ----------- -----------
(in thousands, except per share amounts)
<S> <C> <C> <C> <C> <C>
OPERATING DATA:
Net sales $222,572 $197,451 $160,071 $125,299 $ 80,696
Costs and expenses:
Cost of sales 141,628 121,502 98,267 76,683 51,204
Selling, general and
administrative 28,793 24,940 21,079 17,127 10,517
Research and development 12,893 10,605 8,460 7,899 4,738
Non-recurring restructuring charge 3,800 - - - -
-------- -------- -------- -------- --------
Operating income 35,458 40,404 32,265 23,590 14,237
Other income and expense:
Interest income 2,721 2,424 1,601 1,627 568
Interest expense (6,143) (2,466) (160) (141) (75)
Other income, net 1,046 1,074 197 4,766 571
-------- -------- -------- ------- -------
Income before income taxes 33,082 41,436 33,903 29,842 15,301
Provision for income taxes 12,600 15,800 12,900 11,210 4,965*
------- ------- ------- ------- -------
Net income $20,482 $25,636 $21,003 $18,632 $10,336*
======= ======= ======= ======= =======
Earnings per share:
Basic $0.84 $1.07 $0.89 $0.87 $0.53
===== ===== ===== ===== =====
Diluted $0.84 $1.03 $0.87 $0.83 $0.51*
===== ===== ===== ===== =====
Weighted average number of
common shares outstanding:
Basic 24,350 23,910 23,496 21,504 19,448
====== ====== ====== ====== ======
Diluted 28,958 26,628 24,202 22,414 20,124
====== ====== ====== ====== ======
</TABLE>
* Includes cumulative effect of change in accounting for income taxes of
$237, or $0.01 per share.
<TABLE>
<CAPTION>
--------------------------------------------------------------------------
November 1, November 2, October 31, October 31, October 31,
1998 1997 1996 1995 1994
----------- ----------- ----------- ----------- -----------
(in thousands, except per share amounts)
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Working capital $ 36,871 $ 81,398 $ 21,613 $ 49,653 $ 32,329
Property, plant and equipment 253,781 203,813 123,666 72,063 39,205
Total assets 371,549 365,212 211,903 174,218 98,346
Long-term debt 104,261 106,194 1,987 1,809 495
Shareholders' equity 200,430 185,975 156,417 134,045 80,402
Cash dividends declared per share - - - - -
</TABLE>
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Results of Operations for the
Years Ended November 1, 1998, November 2, 1997 and October 31, 1996
OVERVIEW
A significant portion of the changes in Photronics, Inc.
("Photronics") results of operations over the course of the three years
ended November 1, 1998 are attributable to expansion of the Company's
international operations in Europe and Asia. In addition, on December 31,
1997, the Company acquired the internal photomask manufacturing operations
of Motorola, Inc. in Mesa, Arizona, and in February 1998, commenced
operations in its newly constructed Austin, Texas facility. The Company's
growth has also been affected by the rapid technological changes taking
place in the semiconductor industry resulting in a greater mix of high-end
photomask requirements for more complex integrated circuit designs.
In fiscal 1996, Photronics established its first operations outside
of the United States by acquiring operations in Oldham, U.K., and in
Neuchatel, Switzerland, opening a new manufacturing facility in Singapore
and acquiring a minority interest in an independent photomask manufacturer
in Korea. In addition, during fiscal 1997 the Company acquired an
independent photomask manufacturer in Dresden, Germany. These facilities,
together with the Company's U.S. facilities, comprise a global
manufacturing network supporting semiconductor fabricators in the Asian,
European and North American markets. As a result of the Company's
globalization, revenues from foreign operations have grown to 16.5% in
1998, compared to 11.9% in 1997 and 4.3% in 1996. Management believes
that this trend will continue. Individually, none of these acquisitions
had a material effect on the result of operations (see Note 6 of Notes to
the Consolidated Financial Statements). Substantially all of the
Company's consolidated Asian sales have been denominated in U.S. Dollars
resulting in minimal foreign currency exchange risk on transactions in
that region.
Revenues and costs also have been affected by the increased demand
for higher technology photomasks which require more advanced manufacturing
capabilities and generally command higher average selling prices. To meet
the technological demands of its customers and position the Company for
future growth, the Company continues to make substantial investments in
high-end manufacturing capability both at existing and new facilities.
Since 1996, the Company has constructed four (4) new manufacturing
facilities. In addition to the Singapore facility, the Company relocated
its Dallas, Texas operation to a new state-of-the-art facility in the
fourth quarter of 1996 and relocated its Oldham U.K. operation to a new
state-of-the-art facility in the fourth quarter of 1997. During 1997, the
Company also completed construction of a new manufacturing facility near
Austin, Texas.
A cyclical slow-down currently being experienced by the semiconductor
industry began impacting the release of new integrated circuit designs to
photomask manufacturers in 1998. As a result, the Company experienced
<PAGE>
weakness in photomask demand and accentuated competitive pressures,
especially for more mature technologies, during the second half of fiscal
1998. The Company cannot predict the duration of such industry conditions
or the impact on its future operating results.
RESULTS OF OPERATIONS
Net Sales:
Net sales for the fiscal year ended November 1, 1998 increased 13% to
$222.6 million, compared with $197.5 million in the prior year. Sales
from Photronics' international manufacturing operations accounted for
approximately 55% of the increase. The remaining portion of the growth
resulted from the new Mesa and Austin operations and increased volume from
the Company's other U.S. operations during the first six months of 1998.
These increases were partially offset by pricing pressures and lower
volumes in the second half of the year precipitated generally by the
cyclical slow-down in the semiconductor industry.
Net sales in fiscal 1997 increased 23% to $197.5 million, compared to
$160.1 million in the prior year. Sales from Photronics new international
manufacturing operations accounted for approximately 40% of the 1997
increase. The remaining portion of the growth resulted from increased
shipments to customers from existing facilities due to stronger high-end
product demand and the availability of greater advanced manufacturing
capability, reflecting the implementation of the Company's capacity
expansion program.
Cost of Sales:
Cost of sales for the year ended November 1, 1998 increased 16.6% to
$141.6 million compared with $121.5 million in fiscal 1997. Gross margins
decreased to 36.4% of sales compared to 38.5% in 1997 because of the lower
sales in the second half of 1998 and higher fixed costs resulting from the
strategic investments in new facilities and capital equipment.
Depreciation and amortization increased 60% in 1998 to $33.4 million from
$20.9 million in 1997. In addition, the Company experienced lower margins
in the formerly captive Mesa, Arizona operation that was acquired earlier
in the year.
Cost of sales for the year ended November 2, 1997, increased 23.6% to
$121.5 million, compared with $98.3 million in the prior fiscal year.
Gross margins decreased slightly to 38.5% of sales in 1997, compared with
38.6% in 1996. Favorable margins resulting from a higher capacity
utilization and a more favorable mix of higher-end products were offset by
the cost of the Company's expanded manufacturing base, which was still in
the process of ramping-up to higher levels of utilization earlier in the
year, and the inclusion of international operations which generated
margins below those generally experienced in the Company's domestic
operations. In addition, margins were lower at the Company's Beta Squared
subsidiary. To allow for increased manufacturing capability, the Company
continued to increase its staffing levels and add to its manufacturing
systems, resulting in higher labor and equipment-related costs, including
depreciation expense.
Selling, General and Administrative Expenses:
Selling, general and administrative expenses increased 15.4% during
1998 to $28.8 million or 12.9% of sales from $24.9 million or 12.6% of
<PAGE>
sales in 1997 due to higher staffing costs associated with the Company's
growth, including the expansion into Austin, Texas and Mesa, Arizona, as
well as the full year impact of additions made in 1997, especially in
Europe and Asia. Such increases were partially offset by lower incentive
compensation expenses in fiscal 1998, and reduction in discretionary
spending, especially in the second half of the year in response to the
semiconductor industry slow-down.
Selling, general and administrative expenses increased 18.3% to $24.9
million for the year ended November 2, 1997, compared with $21.1 million
in the prior fiscal year. However, as a percentage of net sales, selling,
general and administrative expenses decreased to 12.6% in 1997, compared
with 13.2% in 1996. The increases in costs resulted from the addition of
the new international operations, as well as increased staffing and other
costs associated with the Company's domestic expansion.
Research and Development:
Research and development expense for 1998 increased by 21.6% to $12.9
million, or 5.8% of sales from $10.6 million in 1997, or 5.4% of sales in
1997. The increase is the result of the continued work on advanced
photomask engineering projects including phase shift, optical proximity
correction and deep ultra-violet applications.
Research and development expenses for the year ended November 2,
1997, increased 25.4% to $10.6 million, compared with $8.5 million in the
prior fiscal year. This increase reflected continued engineering on more
complex photomasks, including phase shift, optical proximity correction
and deep ultra-violet technologies, as well as on next generation "post
optical" technologies. In addition, 1997 R&D expense included Beta
Squared's development of PLASMAX, a proprietary "in-situ" dry cleaning
process that removes contamination from a silicon wafer during plasma
etching. As a percentage of net sales, research and development expenses
increased to 5.4% for the year ended November 2, 1997, compared with 5.3%
in the prior fiscal year.
Non-Recurring Restructuring Charge:
The Company recorded a non-recurring restructuring charge of $3.8
million in the second quarter of fiscal 1998 in connection with the
optimization of its North American operations. The Company reorganized
its two California operations, dedicating its Milpitas facility to the
production of high-end technology photomasks and its Sunnyvale facility to
the production of mature technology photomasks. In addition, it
consolidated its Colorado Springs, Colorado photomask manufacturing
operations into its other North American manufacturing facilities. The
Company also determined that its Large Area Mask (LAM) Division, which is
also located in Colorado Springs, does not represent a long-term strategic
fit with its core photomask business, and, accordingly, plans to sell the
LAM Division. The major component of the non-recurring charge related to
a reduction in the value of equipment. After tax, the charge amounted to
$2.4 million, or $.08 per share on a diluted basis.
<PAGE>
Other Income and Expense:
Interest income in 1998 increased as a result of higher average
short-term investment balances. Interest expense increased to $6.1
million in 1998 from $2.5 million in 1997, primarily due to the effect of
a full year of interest expense on the convertible notes in 1998 compared
to only five months of interest expense on the convertible notes, which
were issued in fiscal 1997.
Other income and expense decreased $0.6 million in fiscal 1997,
principally as a result of interest expense on borrowings, including
interest on the newly issued convertible notes. In addition, 1997
included a $1.6 million gain from the sale of investment securities.
Minority interest expense and foreign currency transaction gains or
losses were not significant in fiscal 1998, 1997 or 1996.
Income Taxes:
The Company provided federal, state and foreign income taxes at a
combined effective annual tax rate of 38.1% in 1998 and 1997 as compared
to 38.0% in 1996.
Net Income:
Net income for the year ended November 1, 1998 decreased 20.1% to
$20.5 million, or $0.84 per diluted share, compared with $25.6 million or
$1.03 per diluted share in the prior year. Fiscal 1998 included a non-
recurring after tax charge of $2.4 million, or $0.08 per diluted share.
Net income for the year ended November 2, 1997 increased 22.1% to
$25.6 million, or $1.03 per diluted share, compared with $21.0 million, or
$0.87 per diluted share, in the prior fiscal year. Net income in 1997
included $1.0 million, or $0.04 per share, from the after tax gain on the
sale of investment securities.
All share and earnings per share amounts reflect a two-for-one stock
split effected in November 1997 (see Note 5 of Notes to the Consolidated
Financial Statements).
LIQUIDITY AND CAPITAL RESOURCES
The Company's cash, cash equivalents and short-term investments
decreased $54.7 million during fiscal 1998 to $31.4 million. The decrease
is attributable to the acquisition of Motorola's photomask operations,
which was a $29 million cash transaction, and capital expenditures for
facilities and equipment of approximately $66.5 million. In addition,
$6.8 million of cash was utilized to repurchase 500,000 shares of the
Company's common stock in the fourth quarter. The decrease was partially
offset by positive cash flows generated by operations of more than $45.0
million and proceeds from stock option and purchase plans of $4.0 million.
Accounts receivable decreased 8.8% to $31.5 million because of
generally lower sales in the fourth quarter of 1998 compared to the fourth
quarter of 1997. Inventory increased 24.4% to $14.1 million primarily as
a result of the addition of the Austin, Texas and Mesa, Arizona
operations, as well as maintaining inventory for anticipated higher sales
levels.
<PAGE>
Property, plant and equipment increased to $253.8 million at November
1, 1998, from $203.8 million at November 2, 1997. Deposits on and
purchases of equipment together with equipment and facilities of acquired
operations aggregated $84.3 million during the year ended November 1, 1998.
These increases were reduced by depreciation expense totalling $31.5 million
in fiscal 1998. The increase in intangible assets to $20.1 million at
November 1, 1998 from $8.2 million at November 2, 1997, was primarily due to
the Motorola acquisition.
Investments and other assets decreased to $10.3 million at November
1, 1998 from $14.2 million at November 2, 1997 due to the sale of certain
investments as well as a reduction in the market value of investments
available for sale.
Accounts payable and other accrued liabilities decreased at November
1, 1998 to $41.6 million compared to $43.6 million as of November 2, 1997.
Accrued salaries and wages decreased to $4.2 million as of November 1,
1998 from $7.4 million as of November 2, 1997, largely as a result of
lower incentive compensation accruals in 1998.
Total amounts due on borrowings of $106.3 million as of November 1,
1998 and $106.5 million as of November 2, 1997 consist principally of
$103.5 million of convertible notes.
Deferred income taxes and other liabilities increased to $16.4
million at November 1, 1998 compared to $15.5 million at November 2, 1997,
largely due to increases in deferred income taxes resulting from the
differences between the carrying amounts of assets and liabilities for
financial reporting and the amounts used for income tax purposes.
The Company's commitments represent on-going investments in
additional manufacturing capacity, as well as advanced equipment for
research and development of the next generation of higher technology and
more complex photomasks. At November 1, 1998 the Company had commitments
outstanding for capital expenditures of approximately $42 million.
Additional commitments are expected to be incurred during 1999.
In November 1998, the Company replaced its prior credit line with a
five year unsecured revolving credit facility providing for borrowings of
up to $125 million at any time through November, 2003. The Company did not
borrow under any of its revolving credit facilities during 1998. The
Company believes that its currently available resources, together with its
capacity for substantial growth and its accessibility to other debt and
equity financing sources, are sufficient to satisfy its cash requirements
for the foreseeable future.
EFFECT OF NEW ACCOUNTING STANDARDS
In June 1997, the Financial Accounting Standards Board (FASB) issued
the Statement of Financial Accounting Standards (SFAS) No. 130, "Reporting
Comprehensive Income", and SFAS No. 131, "Disclosures About Segments of an
Enterprise and Related Information." In April, 1998, the American
Institute of Certified Public Accountants issued Statement of Position 98-
5, "Reporting on the Costs of Start-Up Activities." In June 1998 the FASB
issued SFAS No. 133 "Accounting for Derivative Instruments and Hedging
Activities." Each of these statements establish new standards for
financial statement reporting and disclosure of certain information
effective for the Company in future fiscal years. The Company does not
expect these new standards to have a material impact on its financial
position, results of operations or cash flows.
<PAGE>
YEAR 2000
The Company has recognized that much of its operating software for
its manufacturing and financial systems may not have had the ability to
recognize date information when the year changes to 2000, and initiated a
program in 1997 to replace such software to ensure, among other things,
proper date recognition. To date, the Company has successfully installed
the new financial and manufacturing software in certain of its U.S.
locations, and is in the process of implementing such systems at the
remainder of its sites worldwide. It is expected that both these
installations will be completed by the middle of calendar year 1999. In
addition, the Company began its review of year 2000 compliance
with respect to equipment used in the manufacturing process, and the
systems used by its customers and suppliers.
The Company estimates that the total cost for all of its current
software replacement efforts, including becoming Year 2000 compliant, will be
approximately $7 million, of which approximately half was incurred during
fiscal 1998. The Company believes that, based on its review performed to
date, there will not be any significant interruption in its normal
operations; however should any of its suppliers or customers not be
successful in their efforts, there could be an adverse impact on
the Company. The Company is currently in the process of evaluating
alternatives in the event that its suppliers and customers are not able to
demonstrate within an appropriate timeline that they will be able to
successfully address their Year 2000 issues.
"SAFE HARBOR" STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT
OF 1995:
Except for historical information, the matters discussed above may be
considered forward-looking statements and may be subject to certain risks
and uncertainties that could cause the actual results to differ materially
from those projected, including uncertainties in the market, pricing,
competition, procurement and manufacturing efficiencies, and other risks.
<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
INDEX TO CONSOLIDATED FINANCIAL STATEMENT
Page
Independent Auditors'
Report...................................................18
Consolidated Balance Sheet
at November 1, 1998 and November 2, 1997............19 - 20
Consolidated Statement of Earnings for
the years ended November 1, 1998,
November 2, 1997 and October 31, 1996....................21
Consolidated Statement of Shareholders'
Equity for the years ended
November 1, 1998, November 2, 1997
and October 31, 1996.....................................22
Consolidated Statement of Cash Flows
for the years ended November 1, 1998,
November 2, 1997 and October 31, 1996....................23
Notes to Consolidated
Financial Statements................................24 - 35
<PAGE>
Independent Auditors' Report
Board of Directors and Shareholders
Photronics, Inc.
Jupiter, Florida
We have audited the accompanying consolidated balance sheets of
Photronics, Inc. and its subsidiaries as of November 1, 1998 and November
2, 1997, and the related consolidated statements of earnings,
shareholders' equity and cash flows for each of the three years in the
period ended November 1, 1998. These consolidated financial statements
are the responsibility of the Company's management. Our responsibility is
to express an opinion on these consolidated financial statements based on
our audits.
We conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and perform the
audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements. An audit also includes assessing
the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for
our opinion.
In our opinion, such consolidated financial statements present
fairly, in all material respects, the consolidated financial position of
Photronics, Inc. and its subsidiaries as of November 1, 1998 and November
2, 1997, and the results of their operations and their cash flows for each
of the three years in the period ended November 1, 1998 in conformity with
generally accepted accounting principles.
DELOITTE & TOUCHE LLP
Hartford, Connecticut
December 9, 1998
<PAGE>
<TABLE>
PHOTRONICS, INC. AND SUBSIDIARIES
Consolidated Balance Sheet
November 1, 1998 and November 2, 1997
(dollars in thousands)
<CAPTION>
Assets 1998 1997
- ------ -------- --------
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 23,841 $ 57,845
Short-term investments 7,532 28,189
Accounts receivable (less allowance
for doubtful accounts of $235 in
1998 and 1997) 31,515 34,563
Inventories 14,057 11,302
Deferred income taxes 5,923 4,764
Other current assets 4,507 2,274
-------- --------
Total current assets 87,375 138,937
Property, plant and equipment 253,781 203,813
Intangible assets (less accumulated
amortization of $6,009 in 1998
and $4,048 in 1997) 20,058 8,218
Investments 6,705 10,421
Other assets 3,630 3,823
-------- --------
$371,549 $365,212
======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE>
<TABLE>
PHOTRONICS, INC. AND SUBSIDIARIES
Consolidated Balance Sheet
November 1, 1998 and November 2, 1997
(dollars in thousands, except per share amounts)
<CAPTION>
Liabilities and Shareholders' Equity 1998 1997
- ------------------------------------ -------- --------
<S> <C> <C>
Current liabilities:
Current portion of long-term debt $ 2,076 $ 272
Accounts payable 31,431 34,173
Accrued salaries and wages 4,170 7,423
Accrued interest payable 2,674 2,743
Other accrued liabilities 10,153 9,474
Income taxes payable - 3,454
-------- --------
Total current liabilities 50,504 57,539
Long-term debt 104,261 106,194
Deferred income taxes 11,222 10,508
Other liabilities 5,132 4,996
-------- --------
Total liabilities 171,119 179,237
-------- --------
Commitments and contingencies
Shareholders' equity:
Preferred stock, $.01 par value,
2,000,000 shares authorized,
none issued and outstanding - -
Common stock, $.01 par value,
75,000,000 shares authorized,
24,164,106 shares issued
and outstanding in 1998;
24,300,970 shares issued
and outstanding in 1997 242 243
Additional paid-in capital 82,377 85,129
Retained earnings 120,091 99,609
Unrealized gains on investments 1,167 3,251
Foreign currency translation adjustment (3,308) (2,008)
Deferred compensation on
restricted stock (139) (249)
-------- --------
Total shareholders' equity 200,430 185,975
-------- --------
$371,549 $365,212
======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE>
<TABLE>
PHOTRONICS, INC. AND SUBSIDIARIES
Consolidated Statement of Earnings
<CAPTION>
Years Ended
-------------------------------------------
November 1, November 2, October 31,
1998 1997 1996
----------- ----------- -----------
(in thousands, except per share amounts)
<S> <C> <C> <C>
Net sales $222,572 $197,451 $160,071
Costs and expenses:
Cost of sales 141,628 121,502 98,267
Selling, general
and administrative 28,793 24,940 21,079
Research and development 12,893 10,605 8,460
Non-recurring
restructuring charge 3,800 - -
------ ------ ------
Operating income 35,458 40,404 32,265
Other income and expense:
Interest income 2,721 2,424 1,601
Interest expense (6,143) (2,466) (160)
Other income, net 1,046 1,074 197
-------- -------- --------
Income before income taxes 33,082 41,436 33,903
Provision for income taxes 12,600 15,800 12,900
-------- -------- --------
Net income $ 20,482 $ 25,636 $ 21,003
======== ======== ========
Earnings per share:
Basic $0.84 $1.07 $0.89
===== ===== =====
Diluted $0.84 $1.03 $0.87
===== ===== =====
Weighted average number of
common shares outstanding:
Basic 24,350 23,910 23,496
====== ====== ======
Diluted 28,958 26,628 24,202
====== ====== ======
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE>
<TABLE> PHOTRONICS, INC. AND SUBSIDIARIES
Consolidated Statement of Shareholders' Equity
Years Ended November 1, 1998, November 2, 1997 and October 31, 1996
(in thousands)
<CAPTION>
Unreal- Foreign
ized Currency Deferred
Addi- Gains Trans- Compensa-
Common Stock tional on lation tion on Total
-------------- Paid-In Retained Invest- Treasury Adjust- Restricted Shareholders'
Shares Amount Capital Earnings ments Stock ment Stock Equity
------ ------ ------- -------- ------ -------- -------- ---------- -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at
November 1, 1995 11,758 $118 $75,083 $52,970 $6,471 $ (245) $ - $ (352) $ 134,045
Net income - - - 21,003 - - - - 21,003
Sale of common stock
through employee
stock option and
purchase plans 215 2 2,750 - - - - - 2,752
Foreign currency
translation adjustment - - - - - - 58 - 58
Amortization of
restricted stock to
compensation expense - - - - - - - 352 352
Change in unrealized
gains on investments - - - - (1,793) - - - (1,793)
------ --- ------ ------ ----- --- -- --- -------
Balance at
October 31, 1996 11,973 120 77,833 73,973 4,678 (245) 58 - 156,417
Net income - - - 25,636 - - - - 25,636
Issuance of common
stock related to
acquisition 50 - 1,337 - - - - - 1,337
Sale of common stock
through employee
stock option and
purchase plans 258 3 6,060 - - - - - 6,063
Foreign currency
translation adjustment - - - - - - (2,066) - (2,066)
Restricted stock
awards, net 6 - 264 - - - - (249) 15
Retirement of
treasury stock (136) (1) (244) - - 245 - - -
Change in unrealized
gains on investments - - - - (1,427) - - - (1,427)
Two-for-one stock split 12,150 121 (121) - - - - - -
------ --- ------ ------ ----- ---- ----- --- -------
Balance at
November 2, 1997 24,301 243 85,129 99,609 3,251 - (2,008) (249) 185,975
Net income - - - 20,482 - - - - 20,482
Sale of common stock
through warrants and
employee stock option
and purchase plans 363 4 3,993 - - - - - 3,997
Foreign currency
translation adjustment - - - - - - (1,300) - (1,300)
Amortization of restricted
stock to compensation
expense - - - - - - - 110 110
Change in unrealized gains
on investments - - - - (2,084) - - - (2,084)
Common stock
repurchases (500) (5) (6,745) - - - - - (6,750)
------ ---- ------- -------- ------ ----- ------- ----- --------
Balance at
November 1, 1998 24,164 $242 $82,377 $120,091 $1,167 $ - $(3,308) $(139) $200,430
====== ==== ======= ======== ====== ===== ======= ===== ========
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE>
<TABLE>
PHOTRONICS, INC. AND SUBSIDIARIES
Consolidated Statement of Cash Flows
<CAPTION>
Years Ended
-------------------------------------------------
November 1, November 2, October 31,
1998 1997 1996
----------- ----------- -----------
(in thousands)
<S> <C> <C> <C>
Cash flows from operating activities:
Net income $20,482 $25,636 $21,003
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization of
property, plant and equipment 31,461 19,817 12,120
Amortization of intangible assets 2,529 1,322 1,100
Gain on sale of investments (838) (1,562) -
Deferred income taxes 264 989 1,000
Non-recurring restructuring charges 3,800 - -
Other 224 98 626
Changes in assets and liabilities,
net of effects of acquisitions:
Accounts receivable 2,954 (9,405) (6,893)
Inventories (2,374) (3,157) (1,228)
Other current assets (3,318) (870) (3,260)
Accounts payable and accrued liabilities (10,115) 13,677 14,159
------- ------- -------
Net cash provided by operating activities 45,069 46,545 38,627
------- ------- -------
Cash flows from investing activities:
Acquisitions of and investments in
photomask operations (32,455) (1,065) (12,397)
Deposits on and purchases of property,
plant and equipment (66,448) (96,319) (55,762)
Net change in short-term investments 20,657 (20,271) 8,303
Proceeds from sale of investments 932 1,939 -
Other 2,218 2,151 1,635
------- -------- -------
Net cash used in investing activities (75,096) (113,565) (58,221)
------- -------- -------
Cash flows from financing activities:
Issuance of subordinated convertible notes,
net of deferred issuance costs - 99,697 -
Repayment of long-term debt (266) (151) (36)
Proceeds from issuance of common stock 3,997 6,063 2,752
Purchase and retirement of common stock (6,750) - -
------- ------- -------
Net cash provided (used) by financing activities (3,019) 105,609 2,716
------- ------- -------
Effect of exchange rate changes on cash (958) 490 -
------- ------- -------
Net increase (decrease) in cash and cash equivalents (34,004) 39,079 (16,878)
Cash and cash equivalents at beginning of year 57,845 18,766 35,644
------- ------- -------
Cash and cash equivalents at end of year $23,841 $57,845 $18,766
======= ======= =======
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE>
PHOTRONICS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Years ended November 1, 1998, November 2, 1997 and October 31, 1996
(dollars in thousands, except per share amounts)
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Consolidation
The accompanying consolidated financial statements include the
accounts of Photronics, Inc. and its subsidiaries. All significant
intercompany balances and transactions have been eliminated. The Company
adopted a 52 week fiscal year beginning in the first quarter of fiscal
1997.
Foreign Currency Translation
The Company's subsidiaries in Europe and Singapore maintain their
accounts in their respective local currencies. Assets and liabilities of
such subsidiaries are translated to U.S. dollars at year-end exchange
rates. Income and expenses are translated at average rates of exchange
prevailing during the year. Foreign currency translation adjustments are
accumulated in a separate component of shareholders' equity. The effects
of changes in exchange rates on foreign currency transactions are
included in income.
Cash and Cash Equivalents
Cash and cash equivalents include cash and highly liquid investments
purchased with an original maturity of three months or less. The
carrying values approximate fair value based on the short maturity of the
instruments.
Investments
The Company's debt and equity investments available for sale are
carried at fair value. Short-term investments include a diversified
portfolio of high quality marketable securities which will be liquidated
as needed to meet the Company's current cash requirements. All other
investments are classified as non-current assets. Unrealized gains and
losses, net of tax, are reported as a separate component of shareholders'
equity. Gains and losses are included in income when realized,
determined based on the disposition of specifically identified
investments.
Inventories
Inventories, principally raw materials, are stated at the lower of
cost, determined under the first-in, first-out (FIFO) method, or market.
<PAGE>
Long-Lived Assets
Property, plant and equipment are recorded at cost less accumulated
depreciation. Repairs and maintenance as well as renewals and
replacements of a routine nature are charged to operations as incurred,
while those which improve or extend the lives of existing assets are
capitalized. Upon sale or other disposition, the cost of the asset and
accumulated depreciation are eliminated from the accounts, and any
resulting gain or loss is reflected in income.
For financial reporting purposes, depreciation and amortization are
computed on the straight-line method over the estimated useful lives of
the related assets. For income tax purposes, depreciation is computed
using various accelerated methods and, in some cases, different useful
lives than those used for financial reporting.
Goodwill and other intangibles are amortized on a straight-line
basis over periods estimated to be benefited, generally 5 to 20 years.
The future economic benefit of the carrying value of intangible assets is
reviewed periodically and any diminution in useful life or impairment in
value based on future anticipated cash flows would be recorded in the
period so determined.
Income Taxes
The provision for income taxes is computed on the basis of
consolidated financial statement income. Deferred income taxes reflect
the tax effects of differences between the carrying amounts of assets and
liabilities for financial reporting and the amounts used for income tax
purposes.
Net Income Per Common Share
The Company adopted Statement of Financial Accounting Standards No.
128 ("SFAS 128") "Earnings Per Share", in the first quarter of 1998.
Earnings per share amounts have been restated for all periods presented
to conform to the presentation requirements of SFAS 128.
Stock Based Compensation
The Company records stock option awards in accordance with the
provisions of Accounting Principles Board Opinion 25, "Accounting for
Stock Issued to Employees". The Company estimates the fair value of
stock option awards in accordance with Statement of Financial Accounting
Standards No. 123, "Accounting for Stock-Based Compensation," and
discloses the resulting estimated compensation effect on net income on a
pro forma basis.
Reclassifications
Certain prior year amounts have been reclassified to conform to the
current year presentation.
<PAGE>
NOTE 2 - INVESTMENTS
Short-term investments consist of:
November 1, November 2,
1998 1997
----------- -----------
Government agency securities $ 2,268 $ 4,205
Corporate bonds 3,010 18,178
Certificates of deposit 2,254 5,806
------- -------
$ 7,532 $28,189
======= =======
The estimated fair value of short-term investments, based upon
current yields of like securities, approximates cost, resulting in no
significant unrealized gains or losses. Short-term investments at
November 1, 1998, mature by their terms, as follows:
Due within one year $ 4,878
Due after one year, but within three years 1,654
Due after three years 1,000
-------
$ 7,532
=======
Other investments consist of available-for-sale equity securities of
publicly traded technology companies and a minority interest in a
photomask manufacturer in Korea. The fair values of available-for-sale
investments are based upon quoted market prices. In the absence of
quoted market prices, the estimated fair value is based upon the
financial condition and the operating results and projections of the
investee and is considered to approximate cost. Unrealized gains on
investments were determined as follows:
November 1, November 2,
1998 1997
----------- -----------
Fair value $ 6,705 $10,421
Cost 4,700 4,767
------- -------
2,005 5,654
Less deferred income taxes 838 2,403
------- -------
Net unrealized gains $ 1,167 $ 3,251
======= =======
<PAGE>
NOTE 3 - PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment consists of the following:
November 1, November 2,
1998 1997
----------- -----------
Land $ 3,772 $ 2,735
Buildings and improvements 45,120 39,115
Machinery and equipment 294,826 220,199
Leasehold improvements 7,378 9,910
Furniture, fixtures and office equipment 6,642 3,754
-------- --------
357,738 275,713
Less accumulated depreciation and
amortization 103,957 71,900
-------- --------
Property, plant and equipment $253,781 $203,813
======== ========
NOTE 4 - LONG-TERM DEBT
Long-term debt consists of the following:
November 1, November 2,
1998 1997
----------- -----------
6% Convertible Subordinated Notes
due June 1, 2004 $103,500 $103,500
Acquisition indebtedness payable
December 1, 1998, net of interest of
$9 in 1998 and $122 in 1997,
imputed at 7.45% 1,791 1,678
Installment note payable by foreign
subsidiary with interest at 4.75%
through June, 2001 665 867
Industrial development mortgage note,
secured by building, with interest at
6.58%, payable through November 2005 381 421
-------- --------
106,337 106,466
Less current portion 2,076 272
-------- --------
Long-term debt $104,261 $106,194
======== ========
Long-term debt matures as follows: 2000 - $288; 2001 - $231; 2002 -
$53; 2003 - $57; years after 2003 - $103,632. The fair value of long-
term debt not yet substantively extinguished is estimated based on the
current rates offered to the Company and is not significantly different
from carrying value, except that the fair value of the convertible
subordinated notes, based upon the most recently reported trade as of
November 1, 1998, amounted to $116.0 million.
On May 29, 1997, the Company sold $103.5 million of convertible
subordinated notes, due in 2004, in a public offering. The notes bear
<PAGE>
interest at 6% per annum and are convertible at any time by the holders
into 3.7 million shares of the Company's common stock, at a conversion
price of $27.97 per share. The notes are redeemable at the Company's
option, in whole or in part, at any time after June 1, 2000 at certain
premiums decreasing through the maturity date. Interest is payable semi-
annually.
In November, 1998, the Company replaced its prior credit commitments
with an unsecured revolving credit facility to provide for borrowings of
up to $125 million at any time through November, 2003. The Company is
charged a commitment fee on the average unused amount of the available
credit and is subject to compliance with and maintenance of certain
financial covenants and ratios. The Company did not have outstanding
borrowings under any of its credit facilities during 1998.
Cash paid for interest amounted to $6,311, $164 and $48 in 1998,
1997 and 1996 respectively.
NOTE 5 - EARNINGS PER SHARE
In the first quarter of fiscal 1998, the Company adopted Statement
of Financial Accounting Standards No. 128, "Earnings per Share", which
establishes new standards for the computation and disclosure of earnings
per share ("EPS"). The new statement requires dual presentation of
"basic" EPS and "diluted" EPS. Basic EPS is based on the weighted
average number of common shares outstanding for the period, excluding any
dilutive common share equivalents. Diluted EPS reflects the potential
dilution that could occur if securities or other contracts to issue
common stock were exercised or converted.
A reconciliation of basic and diluted EPS follows (in thousands,
except per share amounts):
Average Earnings
Net Shares Per
Income Outstanding Share
-------- ----------- --------
1998:
Basic $ 20,482 24,350 $ 0.84
Effect of potential dilution ======
from exercise of stock options
and conversion of notes 3,809 4,608
-------- ------
Diluted $ 24,291 28,958 $ 0.84
======== ====== ======
1997:
Basic $ 25,636 23,910 $ 1.07
Effect of potential dilution ======
from exercise of stock options
and conversion of notes 1,841 2,718
-------- ------
Diluted 27,477 26,628 $ 1.03
======== ====== ======
1996:
Basic $ 21,003 23,496 $ 0.89
Effect of potential dilution ======
from exercise of stock options - 706
-------- ------
Diluted $ 21,003 24,202 $ 0.87
======== ====== ======
<PAGE>
In September, 1997, the Company's Board of Directors authorized a
two-for-one stock split effected in the form of a stock dividend, which
was paid to shareholders of record on November 17, 1997. The stock split
resulted in the issuance of 12.2 million additional shares of common
stock. All applicable share and per share amounts reflect the stock
split.
NOTE 6 - ACQUISITIONS
On December 31, 1997, the Company acquired the internal photomask
manufacturing operations of Motorola, Inc. ("Motorola") in Mesa, Arizona
for $29 million in cash. The assets acquired include modern
manufacturing systems, capable of supporting a wide range of photomask
technologies. Additionally, the Company entered into a multi-year supply
agreement whereby it will supply the photomask requirements previously
provided by Motorola's internal operations. The acquisition was
accounted for as a purchase and, accordingly, the acquisition price was
allocated to property, plant and equipment as well as certain intangible
assets based on relative fair value. The excess of purchase price over
the fair value of assets acquired is being amortized over fifteen (15)
years. The Consolidated Statement of Earnings includes the results of
the former Motorola photomask operations from December 31, 1997, the
effective date of the acquisition.
On June 26, 1997, the Company acquired all of the outstanding shares
of MZD Maskenzentrum fur Mikrostruktrierung Dresden GmbH (MZD), an
independent photomask manufacturer located in Dresden, Germany, for $3.1
million in cash and common shares of the Company. The acquisition was
accounted for as a purchase and, accordingly, the acquisition price was
allocated to assets and liabilities based on relative fair value.
In January, 1996, the Company acquired the photomask manufacturing
operations and assets of Plessey Semiconductors Limited (Plessey)
located in Oldham, United Kingdom, for $4.9 million in cash. The
acquisition was accounted for as a purchase and, accordingly, the
acquisition price was allocated to property and equipment based on
relative fair value.
In April, 1996, the Company, through a majority-owned subsidiary,
acquired the photomask manufacturing operations and assets of the
Litomask Division ("Litomask") of Centre Suisse d'Electronique et de
Microtechnique S.A. ("CSEM") located in Neuchatel, Switzerland for $3.4
million in cash. CSEM initially retained the remaining interest in this
subsidiary, and in 1998 the Company acquired such interest for additional
consideration of $3.3 million. In connection with the transaction, the
Company leased the facilities and retained certain services from CSEM
previously utilized by Litomask. The acquisition was accounted for as a
purchase and, accordingly, the acquisition price was allocated to
property and equipment based on relative fair value. The excess of
purchase price over the fair value of assets acquired is being amortized
over 15 years.
The results of the acquisitions were not material to the Company for
the periods presented.
<PAGE>
NOTE 7 - INCOME TAXES
The provision for income taxes consists of the following:
1998 1997 1996
------- ------- -------
Current: Federal $10,417 $11,993 $ 9,905
State 1,610 2,617 1,908
Foreign 309 201 87
------- ------- -------
12,336 14,811 11,900
------- ------- -------
Deferred: Federal 417 995 918
State (192) (6) 82
Foreign 39 - -
------- ------- -------
264 989 1,000
------- ------- -------
$12,600 $15,800 $12,900
======= ======= =======
The provision for income taxes differs from the amount computed by
applying the statutory U.S. Federal income tax rate to income before
taxes as a result of the following:
1998 1997 1996
------- ------- -------
U.S. Federal income tax at
statutory rate $11,579 $14,503 $11,866
State income taxes, net of
Federal benefit 921 1,697 1,294
Tax benefits of tax
exempt income (42) (35) (302)
Foreign tax rate differential (853) (681) (291)
Other, net 995 316 333
------- ------- -------
$12,600 $15,800 $12,900
======= ======= =======
The Company's net deferred tax liability consists of the following:
November 1, November 2,
1998 1997
----------- -----------
Deferred income tax liabilities:
Property, plant and equipment $8,840 $7,915
Investments 838 2,403
Other 1,544 190
------ ------
Total deferred tax liability 11,222 10,508
------ ------
Deferred income tax assets:
Reserves not currently deductible 3,712 2,667
Other 2,211 2,097
------ ------
Total deferred tax asset 5,923 4,764
------ ------
Net deferred tax liability $5,299 $5,744
====== ======
<PAGE>
Cash paid for income taxes amounted to $15.0 million, $7.2 million
and $13.0 million in 1998, 1997 and 1996 respectively.
NOTE 8 - EMPLOYEE STOCK PURCHASE AND OPTION PLANS
In March 1998, the shareholders approved the adoption of the 1998
Stock Option Plan which includes provisions allowing for the award of
qualified and non-qualified stock options and the granting of restricted
stock awards. A total of 1.0 million shares of common stock may be
issued pursuant to options or restricted stock awards granted under the
Plan. Restricted stock awards do not require the payment of any cash
consideration by the recipient, but shares subject to an award may be
forfeited unless conditions specified in the grant are satisfied.
The Company has adopted a series of other stock option plans under
which incentive and non-qualified stock options and restricted stock
awards may be granted. All plans provide that the exercise price may not
be less than the fair market value of the common stock at the date the
options are granted and limit the maximum term of options granted to a
maximum of ten years.
The following table summarizes stock option activity under the plans:
Stock Options Exercise Prices
------------- ---------------
Balance at November 1, 1995 1,959,880 $ 0.92-13.69
Granted 964,100 10.75-12.50
Exercised (368,862) 0.92-13.69
Cancelled (171,592) 3.09-13.69
---------
Balance at October 31, 1996 2,383,526 1.59-13.69
Granted 275,300 14.88-21.97
Exercised (454,042) 1.59-13.69
Cancelled (65,006) 3.75-16.38
---------
Balance at November 2, 1997 2,139,778 1.75-21.97
Granted 826,100 11.00-31.44
Exercised (295,710) 1.75-16.38
Cancelled (94,877) 6.71-31.44
---------
Balance at November 1, 1998 2,575,291 $ 1.75-31.44
=========
<PAGE>
The following table summarizes information concerning currently
outstanding and exercisable options:
Range of Exercise Prices
------------------------------------------------
$1.75-$10.00 $10.00-$20.00 $20.00-$31.44
------------ ------------- -------------
Outstanding:
Number of options 593,987 1,566,554 414,750
Weighted average
remaining years 4.6 8.3 9.1
Weighted average
exercise price $5.08 $12.47 $23.14
Exercisable:
Number of options 565,532 506,289 52,875
Weighted average
exercise price $4.87 $12.80 $21.61
At November 1, 1998, 586,700 shares were available for grant and
1,124,696 shares were exercisable at a weighted average exercise price of
$9.23.
The Company has not recognized compensation expense in connection
with stock option grants under the plans. However, had compensation
expense been determined based on the fair value of the options on the
grant dates, the Company's pro forma net income and earnings per share
for 1998 would have been reduced by approximately $1.9 million, or $0.07
per diluted share, for 1997 would have been reduced by approximately $1.5
million, or $0.06 per diluted share, and for 1996 would have been reduced
by approximately $0.3 million, or $0.01 per diluted share. The weighted
average fair value of options granted was $6.55 per share in 1998, $7.39
per share in 1997 and $5.05 per share in 1996. Fair value is estimated
based on the Black-Scholes option-pricing model with the following
weighted average assumptions: dividend yield of 0%; expected volatility
of 54.4% in 1998, 51.6% in 1997 and 50.8% in 1996; and risk-free
interest rates of 4.4% in 1998 and 6.4% in 1997 and 1996.
The Company maintains an Employee Stock Purchase Plan ("Purchase
Plan"), under which 600,000 shares of common stock are reserved for
issuance. The Purchase Plan enables eligible employees to subscribe,
through payroll deductions, to purchase shares of the Company's common
stock at a purchase price equal to 85% of the lower of the fair market
value on the commencement date of the offering and the last day of the
payroll payment period. At November 1, 1998, 315,376 shares had been
issued and 51,019 shares were subject to outstanding subscriptions under
the Purchase Plan.
NOTE 9 - EMPLOYEE BENEFIT PLANS
The Company maintains a 401(k) Savings and Profit-Sharing Plan (the
"Plan") which covers all domestic employees who have completed six months
of service and are eighteen years of age or older. Under the terms of
the Plan, an employee may contribute up to 15% of their compensation
which will be matched by the Company at 50% of the employee's
contributions which are not in excess of 4% of the employee's
compensation. Employee and employer contributions vest fully upon
contribution. Employer contributions amounted to $0.3 million in 1998
<PAGE>
and $0.5 million in both 1997 and 1996.
The Company maintains a cafeteria plan to provide eligible domestic
employees with the option to receive non-taxable medical, dental,
disability and life insurance benefits. The cafeteria plan is offered to
all active full-time domestic employees and their qualifying dependents.
The Company's contribution amounted to $3.3 million in 1998, $3.0 million
in 1997 and $1.8 million in 1996.
The Company's foreign subsidiaries maintain benefit plans for their
employees which vary by country. The obligations and cost of these plans
are not significant to the Company.
NOTE 10 - LEASES
The Company leases various real estate and equipment under non-
cancelable operating leases. Rental expense under such leases amounted
to $4.4 million in 1998, $4.5 million in 1997 and $5.6 million in 1996.
Included in such amounts were $0.1 million in each year to affiliated
entities, which are owned, in part, by a significant shareholder of the
Company.
Future minimum lease payments under non-cancelable operating leases
with initial or remaining terms in excess of one year amounted to $5.4
million at November 1, 1998, as follows:
1999.....$2,934 2002...........$202
2000......1,543 2003.............72
2001........485 Thereafter......144
Included in such future lease payments are amounts to affiliated
entities of $0.1 million in each year from 1999 to 2003, and $0.1 million
thereafter.
NOTE 11 - COMMITMENTS AND CONTINGENCIES
The Company and a significant shareholder have jointly guaranteed a
loan totaling approximately $0.5 million as of November 1, 1998, on
certain real estate which is being leased by the Company. The Company is
subject to certain financial covenants in connection with the guarantee.
As of November 1, 1998, the Company had capital expenditure purchase
commitments outstanding of approximately $42 million.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make certain
estimates and assumptions, including collectability of accounts
receivable, and depreciable lives and recoverability of property, plant,
equipment and intangible assets. Actual results may differ from such
estimates.
Financial instruments that potentially subject the Company to credit
risk consist principally of trade receivables and temporary cash
investments. The Company sells its products primarily to manufacturers
in the semiconductor and computer industries in North America, Europe and
Asia. The Company believes that the concentration of credit risk in its
trade receivables is substantially mitigated by the Company's ongoing
<PAGE>
credit evaluation process and relatively short collection terms. The
Company does not generally require collateral from customers. The
Company establishes an allowance for doubtful accounts based upon factors
surrounding the credit risk of specific customers, historical trends and
other information. Historically, the Company has not incurred any
significant credit related losses.
NOTE 12 - SEGMENT INFORMATION
The Company operates in a single industry segment as a manufacturer
of photomasks, which are high precision quartz plates containing
microscopic images of electronic circuits for use in the fabrication of
semiconductors. In addition to its manufacturing facilities in the
United States, the Company has operations in the United Kingdom,
Switzerland, Germany and Singapore. The Company's 1998, 1997 and 1996
net sales, operating profit and identifiable assets by geographic area
were as follows:
Net Operating Identifiable
Sales Income (Loss) Assets
-------- ------------- ------------
1998:
United States $185,772 $32,443 $285,115
Europe 20,008 (416) 51,326
Asia 16,792 3,431 35,108
-------- ------- --------
$222,572 $35,458 $371,549
======== ======= ========
1997:
United States $174,043 $37,989 $288,970
Europe 12,938 180 46,586
Asia 10,470 2,235 29,656
-------- ------- --------
$197,451 $40,404 $365,212
======== ======= ========
1996:
United States $153,227 $32,660 $181,255
Europe and Asia 6,844 (395) 30,648
-------- ------- --------
$160,071 $32,265 $211,903
======== ======= ========
Approximately 4% of net domestic sales in 1998 were for delivery
outside of the United States (7% in 1997 and 14% in 1996).
The Company's largest single customer represented approximately 16%
of total net sales in 1998, 23% in 1997 and 26% in 1996.
NOTE 13 - NON-RECURRING RESTRUCTURING CHARGE
In March, 1998, the Company initiated a plan to optimize its North
American manufacturing network. It re-organized its two California
operations, dedicating its Milpitas facility to the production of high-
end technology photomasks and its Sunnyvale facility to the production of
mature technology photomasks, and it consolidated its Colorado Springs,
Colorado photomask manufacturing operations into its other North American
manufacturing facilities. The Company determined that its Large Area
Mask (LAM) Division, which is also located in Colorado Springs, does not
<PAGE>
represent a long-term strategic fit with its core photomask business, and
accordingly, intends to sell the LAM Division. The Company recorded a
$3.8 million charge in the second quarter of 1998 for the restructuring,
the major portion of which reduced property, plant and equipment to its
net realizable values.
NOTE 14 - QUARTERLY RESULTS OF OPERATIONS (UNAUDITED)
The following table sets forth certain unaudited quarterly financial
data:
First Second Third Fourth Year
------- ------- ------- ------- -------
1998:
Net sales $50,932 $61,307 $57,681 $52,652 $222,572
Gross profit 19,666 23,747 21,092 16,439 80,944
Net income 6,280 5,309 5,844 3,049 20,482
Earnings
per share:
Basic $ 0.26 $ 0.22 $ 0.24 $ 0.13 $ 0.84
Diluted $ 0.25 $ 0.22 $ 0.24 $ 0.13 $ 0.84
1997:
Net sales $40,029 $49,034 $53,081 $55,307 $197,451
Gross profit 14,682 18,751 20,661 21,855 75,949
Net income $ 5,325 $ 6,184 $ 6,839 $ 7,288 $ 25,636
Earnings
per share:
Basic $ 0.22 $ 0.26 $ 0.29 $ 0.30 $ 1.07
Diluted $ 0.22 $ 0.25 $ 0.27 $ 0.29 $ 1.03
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE
There were no disagreements on any accounting and financial disclosure
matters between the Company and its independent certified public accountants
for which a Form 8-K was required to be filed during the 24 months ended
November 1, 1998 or for the period from November 1, 1998 to the date hereof.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information as to Directors required by Item 401 and 405 of
Regulation S-K is incorporated by reference to the Company's definitive
proxy statement (the "Definitive Proxy Statement") which will be filed with
the Securities and Exchange Commission pursuant to Regulation 14A within 120
days after the end of the fiscal year covered by this Form 10-K. The
information as to Executive Officers is included in Part I, Item 1a of this
report, "Executive Officers."
ITEM 11. EXECUTIVE COMPENSATION
The information required by Item 402 of Regulation S-K is incorporated
by reference to the Definitive Proxy Statement.
<PAGE>
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
The information required by Item 403 of Regulation S-K is incorporated
by reference to the Definitive Proxy Statement.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by Item 404 of Regulation S-K is incorporated
by reference to the Definitive Proxy Statement.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND
REPORTS ON FORM 8-K
(A) The following documents are filed as part of this report:
1) Financial Statements
Independent Auditors' Report
Consolidated Balance Sheet at November 1, 1998 and
November 2, 1997
Consolidated Statement of Earnings for the years
ended November 1, 1998, November 2, 1997 and
October 31, 1996
Consolidated Statement of Shareholders' Equity for the
years ended November 1, 1998, November 2, 1997 and
October 31, 1996
Consolidated Statement of Cash Flows for the years
ended November 1, 1998, November 2, 1997 and
October 31, 1996
Notes to Consolidated Financial Statements
2) Financial Statement Schedules
Schedules for which provision is made in Regulation
S-X of the Securities and Exchange Commission are not required
under the related instructions or are inapplicable and,
therefore, have been omitted.
3) Exhibits: See Table of Exhibits, page 39.
(B) Reports on Form 8-K
No report on Form 8-K was filed by the Company during the fourth
quarter of the Company's fiscal year ended November 1, 1998.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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.
PHOTRONICS, INC.
(Registrant)
By CONSTANTINE S. MACRICOSTAS January 14, 1999
-------------------------- ----------------
Constantine S. Macricostas
Chairman of the Board
and Director
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
By CONSTANTINE S. MACRICOSTAS January 14, 1999
-------------------------- ----------------
Constantine S. Macricostas
Chairman of the Board
and Director
By MICHAEL J. YOMAZZO January 14, 1999
------------------------- ----------------
Michael J. Yomazzo
Vice Chairman & Director
By ROBERT J. BOLLO January 14, 1999
------------------------- ----------------
Robert J. Bollo
Vice President/Finance
Chief Financial Officer
<PAGE>
By WALTER M. FIEDEROWICZ January 14, 1999
------------------------- ----------------
Walter M. Fiederowicz
Director
By JOSEPH A. FIORITA, JR. January 14, 1999
------------------------- ----------------
Joseph A. Fiorita, Jr.
Director
By YUKIO TAGAWA January 11, 1999
------------------------- ----------------
Yukio Tagawa
Director
98\10-K/p
<PAGE>
TABLE OF EXHIBITS
3.1 Certificate of Incorporation. (1)
3.2 By-Laws, as amended. (1)
3.3 Amendment to Certificate of Incorporation, dated March 16,
1990. (3)
3.4 Amendment to Certificate of Incorporation, dated March 16,
1995. (10)
3.5 Amendment to Certificate of Incorporation, dated November 13,
1997. (13)
4.1 Form of Stock Certificate. (1)
10.1 Loan Agreement, dated August 10, 1984, among the Company, Fairfield
Associates, and the Connecticut Development Authority. (1)
10.2 Indenture of Trust, dated August 10, 1984, between the Connecticut
Development Authority and Citytrust. (1)
10.3 Security Agreement, dated August 10, 1984, between the Company and
the Connecticut Development Authority, with assignment to
Citytrust, as Trustee. (1)
10.4 Lease Agreement, dated August 10, 1984, between the Company and
Fairfield Associates. (1)
10.5 Guaranty Agreement, dated August 10, 1984, by the Company and
Constantine Macricostas to Citytrust, as Trustee. (1)
10.6 Assumption Agreement between the Company, MC2 and the Connecticut
Development Authority, dated October 15, 1992, and related Note,
Mortgage and Collateral Assignment of Leases and amendments
thereto. (6)
10.7 Assumption Agreement, Third Amendment to Loan Agreement and
Amendment to Guaranty Photronic Labs Incorporated Project - 1984
Series, dated August 28, 1992, by and among Photronics California,
Inc., Photronics Financial Services, Inc., Photronics Investment
Services, Inc., Photronics Texas, Inc., the Company, Constantine
Macricostas, the Connecticut Development Authority, The Chase
Manhattan Bank of Connecticut, N.A. and Fairfield Associates. (6)
10.8 The Company's 1986 Non-Qualified Stock Option Plan, as amended.
(2) +
<PAGE>
10.9 The Company's 1988 Non-Qualified Stock Option Plan. (8) +
10.10 Amendment #1 to the Company's 1988 Non-Qualified Stock Option Plan.
(3) +
10.11 Amendment to Security Agreements, dated October 31, 1988, by and among
the Company, Citytrust, Constantine S. Macricostas and Mayo
Associates. (8)
10.12 Amendment to Loan Agreements between the Company and the Connecticut
Development Authority, dated as of June 8, 1990. (3)
10.13 Second Amendment to Loan Agreement dated as of December 20, 1991 by
and among the Company, the Connecticut Development Authority and The
Chase Manhattan Bank of Connecticut, N.A. (4)
10.14 Form of severance agreement between the Company and each of Messrs.
Macricostas, Northup and Moonan. (8) +
10.15 Lease dated as of November 1, 1989 between the Company, MC3, Inc.
and Alpha-Omega Associates. (8)
10.16 Consulting Agreement, dated June 1, 1992, between Joseph Fiorita
and the Company. (6) +
10.17 The Company's 1992 Stock Option Plan. (5) +
10.18 The Company's 1992 Employee Stock Purchase Plan. (5)
10.19 The Company's 1994 Employee Stock Option Plan. (7) +
10.20 Form of Agreement regarding Life Insurance between the Company and
each of Messrs Macricostas, Yomazzo, Northup and Moonan. (9) +
10.21 Credit Agreement between the Company and various lenders, dated
November 19, 1998. *
10.22 The Company's 1996 Stock Option Plan. (11) +
10.23 Letter Agreement between the Company and Michael J. Yomazzo,
dated October 10, 1997. (13) +
10.24 Consulting Agreement between the Company and Michael J. Yomazzo,
dated October 10, 1997. (13) +
10.25 Consulting Agreement between the Company and Constantine S.
Macricostas, dated October 10, 1997. (13) +
10.26 Form of Indenture between The Chase Manhattan Bank, as Trustee,
and the Company relating to the 6% Convertible Subordinated Notes
due June 1, 2004. (12)
10.27 Agreement dated September 21, 1998 by and between the Company and
Toppan Printing Co., Ltd. *
<PAGE>
10.28 The Company's 1998 Stock Option Plan. (18) +
21 List of Subsidiaries. *
23 Consent of Deloitte & Touche LLP. *
27 Financial Data Schedule *
- --------------------
* Filed herewith.
+ Represents a management contract or compensatory plan or
arrangement required to be filed as an exhibit to this form
pursuant to item 14(c) of this report.
- --------------------
(1) Filed as an exhibit to the Company's Registration Statement on Form
S-1, File Number 33-11694, which was declared effective by the
Commission on March 10, 1987, and incorporated herein by reference.
(2) Filed as an exhibit to the Company's Registration Statement on Form
S-8, File Number 33-17530, which was declared effective on October
19, 1987, and incorporated herein by reference.
(3) Filed as an exhibit to the Company's Registration Statement on Form
S-2, File Number 33-34772 which was declared effective by the
Commission on June 22, 1990, and incorporated herein by reference.
(4) Filed as an exhibit to the Company's Annual Report on Form 10-K for
the fiscal year ended October 31, 1991 and incorporated herein by
reference.
(5) Filed as an exhibit to the Company's Registration Statement on Form
S-8, File Number 33-47446, which was filed on April 24, 1992, and
incorporated herein by reference.
(6) Filed as an exhibit to the Company's Annual Report on Form 10-K for
the fiscal year ended October 31, 1992, and incorporated herein by
reference.
(7) Filed as an exhibit to the Company's Registration Statement on Form
S-8, File Number 33-78102, which was filed on April 22, 1994, and
incorporated herein by reference.
(8) Filed as an exhibit to the Company's Annual Report on Form 10-K for
the fiscal year ended October 31, 1993, and incorporated herein by
reference.
(9) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q
for the quarter ended July 31, 1995, and incorporated herein by
reference.
(10) Filed as an exhibit to the Company's Current Report on Form 8-K,
dated March 24, 1995, and incorporated herein by reference.
<PAGE>
(11) Filed as an exhibit to the Company's Registration Statement on
Form S-8, File Number 333-02245, which was filed on April 4, 1996,
and incorporated herein by reference.
(12) Filed as an exhibit to the Company's Registration Statement on
Form S-3, File Number 333-26009, which was declared effective by
the Commission on May 22, 1997, and incorporated herein by
reference.
(13) Filed as an exhibit to the Company's Annual Report on Form 10-K
for the fiscal year ended November 2, 1997, and incorporated herein
by reference.
(14) Filed as an exhibit to the Company's Registration Statement on Form
S-8, File Number 333-50809, which was filed on April 23, 1998, and
incorporated herein by reference.
<PAGE>
INDEX TO EXHIBITS
PAGE
10.21 Credit Agreement between the Company and various
lenders, dated November 19, 1998.................
10.27 Agreement dated September 21, 1998 by and between
the Company and Toppan Printing Co., Ltd.........
21 List of Subsidiaries.............................
23 Consent of Deloitte & Touche LLP.................
27 Financial Data Schedule..........................
<PAGE>
Exhibit 21
LIST OF SUBSIDIARIES
State or Jurisdiction
Name of Incorporation
Photronics International
Engineering, Inc. Virgin Islands
Photronics California, Inc. California
Photronics Texas, Inc. Texas
Photronics Financial Services, Inc. Florida
Photronics Investment Services, Inc. Nevada
Photronics-Toppan Texas, Inc. Texas
Beta Squared, Inc. Connecticut
PLI Management Corp. Florida
Photronics Singapore Pte Ltd. Singapore
Photronics (UK) Limited England
Photronics Connecticut, Inc. Connecticut
Photronics Colorado, Inc. Colorado
Photronics, S.A. Switzerland
Chip Canal Associates, Ltd. England
Photronics Germany GmbH & Co. KG Germany
Photronics MZD Verwaltungs GmbH Germany
Photronics MZD GmbH Germany
Photronics Arizona, Inc. Arizona
Photronics Oregon, Inc. Oregon
<PAGE>
Exhibit 23
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Registration Statements
Nos. 333-02245, 333-50809, 33-17530, 33-28118, 33-47446 and 33-78102 of
Photronics, Inc. on Form S-8 of our report dated December 9, 1998 appearing
in this Annual Report on Form 10-K of Photronics, Inc. for the year ended
November 1, 1998.
DELOITTE & TOUCHE LLP
Hartford, Connecticut
January 15, 1999
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Condensed Consolidated Statement of Earnings and the Consolidated Balance Sheet
and is qualified in its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1000
<S> <C> <C> <C> <C>
<PERIOD-TYPE> 3-MOS 6-MOS 9-MOS 12-MOS
<FISCAL-YEAR-END> NOV-01-1998 NOV-01-1998 NOV-01-1998 NOV-01-1998
<PERIOD-END> FEB-01-1998 MAY-03-1998 AUG-02-1998 NOV-01-1998
<CASH> 27,239 24,172 26,226 23,841
<SECURITIES> 9,236 12,780 10,173 7,532
<RECEIVABLES> 33,529 40,069 35,596 31,750
<ALLOWANCES> 235 235 235 235
<INVENTORY> 12,795 13,992 15,019 14,057
<CURRENT-ASSETS> 91,498 98,154 94,735 87,375
<PP&E> 298,130 334,597 351,411 357,738
<DEPRECIATION> 78,277 86,561 94,233 103,957
<TOTAL-ASSETS> 346,668 380,229 383,018 371,549
<CURRENT-LIABILITIES> 36,454 62,082 63,607 50,504
<BONDS> 106,127 104,361 104,301 104,261
0 0 0 0
0 0 0 0
<COMMON> 243 244 244 242
<OTHER-SE> 188,196 197,501 200,591 200,188
<TOTAL-LIABILITY-AND-EQUITY> 346,668 380,229 383,018 371,549
<SALES> 50,932 112,239 169,920 222,572
<TOTAL-REVENUES> 50,932 112,239 169,920 222,572
<CGS> 31,266 68,826 105,415 141,628
<TOTAL-COSTS> 31,266 68,826 105,415 141,628
<OTHER-EXPENSES> 0 3,800 0 0
<LOSS-PROVISION> 0 0 0 0
<INTEREST-EXPENSE> 1,578 3,022 4,457 6,143
<INCOME-PRETAX> 10,080 18,689 28,133 33,082
<INCOME-TAX> 3,800 7,100 10,700 12,600
<INCOME-CONTINUING> 6,280 11,589 17,433 20,482
<DISCONTINUED> 0 0 0 0
<EXTRAORDINARY> 0 0 0 0
<CHANGES> 0 0 0 0
<NET-INCOME> 6,280 11,589 17,433 20,482
<EPS-PRIMARY> 0.26 0.48 0.72 0.84
<EPS-DILUTED> 0.25 0.47 0.70 0.84
</TABLE>
CREDIT AGREEMENT
dated as of
November 19, 1998
among
PHOTRONICS, INC.
The Borrowing Subsidiaries Party Hereto
The Lenders Party Hereto
THE CHASE MANHATTAN BANK,
as Administrative Agent
and
THE BANK OF NEW YORK,
as Documentation Agent
---------------------------
CHASE SECURITIES INC. and BNY CAPITAL MARKETS, INC.,
as Arrangers
CHASE SECURITIES, INC.,
as Book Manager
and
First Union National Bank, Fleet National Bank,
Marine Midland Bank, People's Bank and State Street Bank
and Trust Company
as Co-Agents
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
Definitions..................................................4
SECTION 1.01. Defined Terms................................4
SECTION 1.02. Classification of Loans and Borrowing.......26
SECTION 1.03. Terms Generally.............................26
SECTION 1.04. Accounting Terms; GAAP......................26
SECTION 1.05. Exchange Rates..............................26
ARTICLE II
The Credits.................................................27
SECTION 2.01. Commitments.............................. ..27
SECTION 2.02. Loans and Borrowings........................27
SECTION 2.03. Requests for Revolving Borrowings...........29
SECTION 2.04. Swingline Loans.............................29
SECTION 2.05. Letters of Credit...........................30
SECTION 2.06. Funding of Borrowings.......................35
SECTION 2.07. Interest Elections..........................35
SECTION 2.08. Termination and Reduction of Commitments....37
SECTION 2.09. Repayment of Loans; Evidence of Debt........37
SECTION 2.10. Prepayment of Loans.........................38
SECTION 2.11. Fees........................................39
SECTION 2.12. Interest....................................40
SECTION 2.13. Alternate Rate of Interest..................41
SECTION 2.14. Increased Costs; Illegality...........,.....42
SECTION 2.15. Break Funding Payments......................45
SECTION 2.16. Taxes.......................................46
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs.........................47
SECTION 2.18. Mitigation Obligations;
Replacement of Lenders......................49
SECTION 2.19. Borrowing Subsidiaries......................50
ARTICLE III
Representations and Warranties..............................50
SECTION 3.01. Organization; Powers........................50
SECTION 3.02. Authorization; Enforceability...............50
SECTION 3.03. Governmental Approvals; No Conflicts........51
SECTION 3.04. Financial Condition; No Material Adverse
Change......................................51
SECTION 3.05. Properties..................................52
SECTION 3.06. Litigation and Environmental Matters........52
SECTION 3.07. Compliance with Laws and Agreements.........52
SECTION 3.08. Investment and Holding Company Status.......53
SECTION 3.09. Taxes.......................................53
SECTION 3.10. ERISA.......................................53
- i -
<PAGE>
SECTION 3.11. Disclosure..................................53
SECTION 3.12. Federal Reserve Regulations.................53
SECTION 3.13. Senior Indebtedness.........................54
SECTION 3.14. Solvency....................................54
SECTION 3.15. Year 2000...................................54
ARTICLE IV
Conditions..................................................54
SECTION 4.01. Effective Date..............................54
SECTION 4.02. Each Credit Event...........................56
SECTION 4.03. Each Borrowing Subsidiary Credit Event......57
ARTICLE V
Affirmative Covenants.......................................57
SECTION 5.01. Financial Statements and Other
Information.................................57
SECTION 5.02. Notices of Material Events..................59
SECTION 5.03. Existence; Conduct of Business..............59
SECTION 5.04. Payment of Obligations......................60
SECTION 5.05. Maintenance of Properties; Insurance........60
SECTION 5.06. Books and Records; Inspection Rights........60
SECTION 5.07. Compliance with Laws........................60
SECTION 5.08. Use of Proceeds and Letters of Credit.......60
SECTION 5.09. Additional Guarantors.......................60
ARTICLE VI
Negative Covenants..........................................61
SECTION 6.01. Indebtedness................................61
SECTION 6.02. Liens.......................................62
SECTION 6.03. Fundamental Changes.........................62
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions................................63
SECTION 6.05. Hedging Agreements..........................64
SECTION 6.06. Restricted Payments.........................64
SECTION 6.07. Disposition of Assets.......................65
SECTION 6.08. Transactions with Affiliates................66
SECTION 6.09. Restrictive Agreements......................66
SECTION 6.10. Issuances of Capital Stock by Subsidiaries..67
SECTION 6.11. Amendment of Material Documents.............67
SECTION 6.12. Borrowing Subsidiaries......................67
SECTION 6.13. Interest Coverage Ratio.....................67
SECTION 6.14. Fixed Charge Coverage Ratio.................67
SECTION 6.15. Leverage Ratio..............................67
SECTION 6.16. Capital Expenditure Ratio...................68
ARTICLE VII
Events of Default...........................................68
ARTICLE VIII
The Administrative Agent....................................70
- ii -
<PAGE>
ARTICLE IX
Guarantee...................................................73
ARTICLE X
Miscellaneous...............................................75
SECTION 10.01. Notice......................................75
SECTION 10.02. Waivers;Amendments..........................74
SECTION 10.03. Expenses; Indemnity; Damage Waiver..........77
SECTION 10.04. Successors and Assigns......................79
SECTION 10.05. Survival....................................82
SECTION 10.06. Counterparts; Integration; Effectiveness....82
SECTION 10.07. Severability................................82
SECTION 10.08. Right of Setoff.............................82
SECTION 10.09. Governing Law; Jurisdiction; Consent to
Service of Process..........................83
SECTION 10.10. WAIVER OF JURY TRIAL........................84
SECTION 10.11. Headings....................................84
SECTION 10.12. Confidentiality.............................84
SECTION 10.13. Interest Rate Limitation....................85
SECTION 10.14. Conversion of Currencies....................85
SECTION 10.15. European Economic and Monetary Union........85
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.01 -- List of Subsidiaries
Schedule 3.06 -- Disclosed Matters
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Existing Investments
Schedule 6.08 -- Existing Affiliate Transactions
Schedule 6.09 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Opinion of Loan Parties' Counsel
Exhibit C -- Form of Opinion of Borrowing Subsidiary's Counsel
Exhibit D -- Form of Borrowing Subsidiary Agreement
Exhibit E -- Form of Borrowing Subsidiary Termination
Exhibit F -- Form of Guarantee Agreement
Exhibit G -- Form of Promissory Note
Exhibit H -- Form of Pledge Agreement
- iii -
<PAGE>
CREDIT AGREEMENT, dated as of November 19, 1998, among
PHOTRONICS, INC., the BORROWING SUBSIDIARIES party hereto, the
LENDERS party hereto, THE CHASE MANHATTAN BANK, as
Administrative Agent, and THE BANK OF NEW YORK, as
Documentation Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such
Borrowing, are bearing interest at a rate determined by
reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurocurrency
Borrowing in any Committed Currency for any Interest Period,
an interest rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in
its capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person,
another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
"Agreement Currency" has the meaning assigned to such term
in Section 10.14(b).
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greatest of (a) the Prime Rate in effect on such
day, (b) the Base CD Rate in effect on such day plus 1% and (c)
the Federal Funds Effective Rate in effect on such day plus 1/2 of
1%. Any change in the Alternate Base Rate due to a change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of
such change in the Prime Rate, the Base CD Rate or the Federal
Funds Effective Rate, respectively.
"Alternative Currency" means (a) British pounds sterling,
German deutsche marks, Japanese yen, French francs, Swiss francs,
Singapore dollars and euros (after their adoption by
<PAGE>
participating member states of the EMU), and (b) any other
Eligible Currency that shall be designated by the Company in a
notice delivered to the Administrative Agent and approved by the
Administrative Agent and all the Multicurrency Lenders as an
Alternative Currency.
"Alternative Currency Equivalent" means,on any date of
determination, with respect to any amount in dollars, the
equivalent in the relevant Alternative Currency of such amount,
determined by the Administrative Agent using the Exchange Rate
with respect to such Alternative Currency then in effect as
determined pursuant to Section 1.05(a).
"Applicable Creditor" has the meaning assigned to such term
in Section 10.14(b).
"Applicable Percentage" means, (a) when used in
calculating amounts outstanding under or in respect of Loans or
Letters of Credit denominated in dollars, with respect to any
Lender, the percentage of the total Available Commitments
represented by such Lender's Available Commitment and (b) when
used in calculating amounts outstanding under or in respect of
Loans or Letters of Credit denominated in an Alternative
Currency, (i) with respect to any Multicurrency Lender,
the percentage of the total Commitments of the
Multicurrency Lenders represented by such Multicurrency Lender's
Commitment and (ii) with respect to the Domestic Lender, 0%. If
the Commitments have terminated or expired, the Applicable
Percentages shall be determined based upon the Commitments most
recently in effect, giving effect to any assignments.
"Applicable Rate" means, for any day, with respect to any
Eurocurrency Revolving Loan, or with respect to the facility fees
payable hereunder, as the case may be, the applicable rate per
annum set forth below under the caption "Eurocurrency Spread",
"Swingline Spread" or "Facility Fee Rate", as the case may be,
based upon the Leverage Ratio applicable on such date:
Leverage Eurocurrency Swingline Facility Fee
Ratio Spread Spread Rate
-------------------- ------------- --------- ------------
Category 1 Greater than or equal to 1.250% 1.500% .300%
2.50 to 1
Category 2 Greater than or equal to 1.000% 1.250% .275%
2.00 to 1 but less than
2.50 to 1
Category 3 Greater than or equal to .750% 1.000% .250%
1.50 to 1 but less than
2.00 to 1
Category 4 Greater than or equal to .625% .875% .225%
1.00 to 1 but less than
1.50 to 1
Category 5 Less than 1.00 to 1 .500% .750% .200%
<PAGE>
For purposes of the foregoing, (a) the Leverage Ratio shall
be determined as of the end of each fiscal quarter of the
Company based upon the Company's consolidated financial
statements delivered pursuant to Section 5.01(a) or (b); and (b)
each change in the Applicable Rate resulting from a change
in the Leverage Ratio shall be effective during the period
commencing on and including the date of delivery to the
Administrative Agent of such consolidated financial statements
indicating such change and ending on the date immediately
preceding the effective date of the next change in the Applicable
Rate; provided that the Leverage Ratio shall be deemed to be in
Category 1 (i) at any time that an Event of Default has occurred
and is continuing and has not been waived or (ii) if the Company
fails to deliver the consolidated financial statements required
to be delivered by it pursuant to Section 5.01(a) or (b), during
the period from the expiration of the time for delivery thereof
until such consolidated financial statements are delivered.
Assuming no Event of Default has occurred and is continuing,
the initial Applicable Rate shall be determined by reference
to Category 4.
Subject to Section 10.02(b), the Swingline Lender may
from time to time adjust the "Swingline Spread" by notice to the
Company and the Administrative Agent (each such notice to be
effective upon the date given) based upon changes in the
differences between prevailing interest rates in the relevant
currencies and each such adjustment by the Swingline Lender
shall be conclusive absent manifest error.
"Assessment Rate" means, for any day, the annual assessment
rate in effect on such day that is payable by a member of the Bank
Insurance Fund classified as "well-capitalized" and within
supervisory subgroup "B" (or a comparable successor risk
classification) within the meaning of 12 C.F.R. Part 327 (or any
successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in
dollars at the offices of such member in the United States;
provided that if, as a result of any change in any law, rule or
regulation, it is no longer possible to determine the Assessment
Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be
representative of the cost of such insurance to the Lenders.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an assignee (with the
consent of any party whose consent is required by Section
10.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative
Agent.
"Available Commitment" means (after giving effect to the
contemporaneous repayment of Loans and LC Disbursements), with
respect to any Lender, the excess of (a) the aggregate Commitment
of such Lender over (b) the aggregate Revolving Credit Exposure of
such Lender.
"Availability Period" means the period from and including
the Effective Date to but excluding the earlier of the
Maturity Date and the date of termination of the Commitments.
"Base CD Rate" means the sum of (a) the Three-Month
Secondary CD Rate multiplied by the Statutory Reserve Rate plus
(b) the Assessment Rate.
6
<PAGE>
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means the Company or any Borrowing Subsidiary.
"Borrowing" means Loans of the same Type, Class and
currency made, converted or continued on the same date and, in
the case of Eurocurrency Loans or Money Market Loans, as to
which a single Interest Period is in effect.
"Borrowing Date" means any Business Day specified in a
notice pursuant to Section 2.03 or 2.04 as a date on which the
applicable Borrower requests Loans to be made hereunder.
"Borrowing Request" means a request by the Borrower
for a Revolving Borrowing in accordance with Section 2.03.
"Borrowing Subsidiary" means, at any time, each
Wholly-Owned Subsidiary designated as a Borrowing Subsidiary by
the Company pursuant to Section 2.19, in each case until such
Person has ceased to be a Borrowing Subsidiary pursuant to
Section 2.19.
"Borrowing Subsidiary Agreement" means each agreement
entered into among the Company, the applicable Wholly-Owned
Subsidiary and the Administrative Agent whereby such Wholly-Owned
Subsidiary is designated as a Borrowing Subsidiary pursuant to
Section 2.19, which agreement shall be substantially in the form
of Exhibit D.
"Borrowing Subsidiary Termination" means each termination
delivered by the Company and the applicable Wholly-Owned
Subsidiary whereby such Wholly-Owned Subsidiary shall cease to
be a Borrowing Subsidiary pursuant to Section 2.19, which
termination shall be substantially in the form of Exhibit E.
"Business Day" means, subject to Section 10.15(d), any day
that is not a Saturday, Sunday or other day on which commercial
banks in London or New York City are authorized or required by law
to remain closed; provided that when used in connection with a
Loan denominated in an Alternative Currency, the term
"Business Day" shall also exclude any day on which banks in the
jurisdiction where such Loans are being made and where payments
thereof are required to be made are authorized or required by law
to remain closed.
"Calculation Date" means (a) the last Business Day of each
calendar month and (b) at any time when (i) the Dollar Equivalent
of the total Revolving Credit Exposures denominated in an
Alternative Currency exceeds 25% of the total Commitments or
(ii) the Dollar Equivalent of the total Revolving Credit
Exposures exceeds 75% of the total Commitments, the last
Business Day of each calendar week.
"Capital Expenditure Ratio" means, on any date, the
ratio of (a) Consolidated Capital Expenditures (exclusive of
amounts expended in connection with Permitted Business
Acquisitions)
7
<PAGE>
for the period of four consecutive fiscal quarters of the Company
most recently ended as of such date to (b) Consolidated
EBITDA for the period of four consecutive fiscal quarters of
the Company most recently ended as of such date.
"Capital Expenditures" means, for any period, the dollar
amount of gross expenditures (including Capital Lease
Obligations) made for the acquisition of any fixed assets, real
property, plant and equipment, and all renewals, improvements
and replacements thereto (but not repairs thereof) incurred
during such period in each case which are required to be
capitalized for financial reporting purposes in accordance with
GAAP.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under
any lease of (or other arrangement conveying the right to use)
real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as
capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized
amount thereof determined in accordance with GAAP.
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designated) of
capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation) and
any and all warrants, rights or options to purchase any of the
foregoing but in any event excluding, prior to the conversion
thereof, the Subordinated Notes.
"Change in Control" means (a) the acquisition (other than
by Constantine Macricostas and Affiliates controlled by him)
of ownership, directly or indirectly, beneficially or of
record, by any Person or group (within the meaning of the
Securities Exchange Act of 1934, as amended, and the rules of the
Securities and Exchange Commission thereunder as in effect on
the date hereof) of shares representing more than 35% of the
aggregate ordinary voting power represented by the issued and
outstanding capital stock of the Company; (b) occupation of a
majority of the seats (other than vacant seats) on the board of
directors of the Company by Persons who were neither (i)
nominated by the board of directors of the Company nor (ii)
appointed by directors so nominated; or (c) the occurrence of a
"change in control" (or similar event, howsoever
denominated) under and as defined in any indenture or other
agreement in respect of Material Indebtedness to which any Loan
Party is a party.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in
any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date
of this Agreement or (c) compliance by any Lender or the Issuing
Bank (or, for purposes of Section 2.14(b), by any lending office
of such Lender or by such Lender's or the Issuing Bank's holding
company, if any) with any request, guideline or directive
(whether or not having the force of law) of any
Governmental Authority made or issued after the date of this
Agreement.
"Charges" has the meaning assigned to such term in Section
10.13.
8
<PAGE>
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such
Borrowing, are Revolving Loans or Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral" means all of the right, title and interest of
the Company or any Subsidiary in and to the property in which such
Person has granted a Lien to the Administrative Agent for its
benefit and the ratable benefit of the Lenders under any Loan
Document.
"Committed Currency" means dollars or any Alternative
Currency.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans and to
acquire participations in Letters of Credit and Swingline Loans
hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's Revolving Credit Exposure
hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time
to time pursuant to assignments by or to such Lender pursuant to
Section 10.04. The initial amount of each Lender's Commitment
is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its
Commitment, as applicable. The initial aggregate amount of the
Lenders' Commitments is $125,000,000.
"Company" means Photronics, Inc., a Connecticut corporation.
"Consolidated Capital Expenditures" means, for any period,
the aggregate amount of Capital Expenditures of the Company and
its consolidated Subsidiaries for such period, as determined on a
consolidated basis in accordance with GAAP.
"Consolidated EBIT" means, for any period, Consolidated Net
Income for such period, minus the aggregate amount of
extraordinary or nonrecurring gains for such period, plus,
without duplication and to the extent deducted from revenues in
determining Consolidated Net Income for such period, the sum
of (a) the aggregate amount of Consolidated Interest Expense for
such period, plus (b) the aggregate amount of income tax expense
for such period, plus (c) if such period ends on or before
January 31, 1999, the aggregate amount of noncash charges
taken during the fiscal quarter ended on May 3, 1998 in
connection with the closing of the Colorado Springs operation
up to $3,800,000, plus (d) the aggregate amount of
extraordinary or nonrecurring noncash charges taken during the
period for which Consolidated EBIT is calculated to the extent
that the aggregate amount of extraordinary or nonrecurring noncash
charges from August 2, 1998 to the end of such period does not
exceed 5% of Consolidated Net Worth as determined as of the end
of such period, all as determined on a consolidated basis with
respect to the Company and its consolidated Subsidiaries
in accordance with GAAP.
"Consolidated EBITDA" means, for any period, Consolidated
EBIT for such period, plus, without duplication and to the
extent deducted from revenues in determining Consolidated Net
Income, the aggregate amount of depreciation and amortization for
such period, all as determined
9
<PAGE>
on a consolidated basis with respect to the Company and its
consolidated Subsidiaries in accordance with GAAP.
"Consolidated Indebtedness" means, as of any date of
determination, the aggregate principal amount of Indebtedness
of the Company and its consolidated Subsidiaries outstanding as
of such date, as determined on a consolidated basis in accordance
with GAAP.
"Consolidated Interest Expense" means, for any period,
the interest expense, both expensed and capitalized (including
the interest component in respect of Capital Lease
Obligations), accrued or paid by the Company and its consolidated
Subsidiaries during such period, as determined on a consolidated
basis in accordance with GAAP.
"Consolidated Net Income" means, for any period, net income
or loss of the Company and its consolidated Subsidiaries for
such period, as determined on a consolidated basis in accordance
with GAAP.
"Consolidated Net Worth" means, at any date of determination
thereof, all amounts that would be included under
stockholders' equity on a consolidated balance sheet of the
Company and its consolidated Subsidiaries, as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Subordinated Indebtedness" means, at
any date of determination thereof, the Subordinated Notes and
any other Indebtedness of the Company that is subordinated to
the obligations owed to each of the Lenders issued on terms
and conditions acceptable to the Lenders in their sole
discretion.
"Control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto.
"Default" means any event or condition which
constitutes an Event of Default or which upon notice, lapse of
time or both would, unless cured or waived, become an Event of
Default.
"Disclosed Matters" means the actions, suits and
proceedings and the environmental matters disclosed in Schedule
3.06.
"Documentation Agent" means The Bank of New York, in its
capacity as documentation agent for the Lenders hereunder.
"Dollar Equivalent" means, on any date of determination,
(a) with respect to any amount in dollars, such amount, and (b)
with respect to any amount in any Alternative Currency, the
equivalent in dollars of such amount, determined by the
Administrative Agent pursuant to Section 1.05(a) using the
Exchange Rate with respect to such Alternative Currency then in
effect.
10
<PAGE>
"Dollars" or "$" refers to lawful money of the United States
of America.
"Domestic Lender" means People's Bank, a Connecticut state
chartered bank.
"Domestic Plan" means any employee pension benefit plan
(other than a Multiemployer Plan) subject to the provisions of
Title IV of ERISA or Section 412 of the Code or Section 302 of
ERISA, and in respect of which the Company or any ERISA
Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined
in Section 3(5) of ERISA.
"Domestic Subsidiary" means any Subsidiary that is organized
under the laws of any jurisdiction in the United States.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance
with Section 10.02).
"Eligible Currency" means, on any date of determination,
any currency (other than dollars) that is freely tradeable and
exchangeable into dollars in the London market and for which an
Exchange Rate can be determined by reference to the Reuters World
Currency Page or another publicly available service for
displaying exchange rates.
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions,
notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural
resources, the management, release or threatened release of any
Hazardous Material or to health and safety matters.
"Environmental Liability" means any liability, contingent
or otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities), of
the Company or any Subsidiary directly or indirectly
resulting from or based upon (a) violation of any Environmental
Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a
single employer under Section 414(b) or (c) of the Code or,
solely for purposes of Section 302 of ERISA and Section 412 of
the Code, is treated as a single employer under Section 414 of
the Code.
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"ERISA Event" means (a) any "reportable event", as defined
in Section 4043 of ERISA or the regulations issued thereunder
with respect to a Domestic Plan (other than an event for which
the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d)
of the Code or Section 303(d) of ERISA of an application for a
waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Company or any of its ERISA
Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Domestic Plan; (e) the
receipt by the Company or any ERISA Affiliate from the PBGC or
any other Governmental Authority or a plan administrator of
any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan or
Plans; (f) the incurrence by the Company or any of its ERISA
Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (g)
the receipt by the Company or any ERISA Affiliate of any notice,
or the receipt by any Multiemployer Plan from the Company or any
ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer
Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.
"Eurocurrency", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Exchange Rate" means, on any day, with respect to
any Alternative Currency, the rate at which such Alternative
Currency may be currently exchanged into dollars (and, for
purposes of the definition of "Alternative Currency
Equivalent" and Section 2.07(e), 2.13(i) or 2.14(e)(ii), the
rate at which dollars may be exchanged into such Alternative
Currency), as set forth at approximately 11:00 a.m., London
time, on such date on the Reuters World Currency Page for such
Alternative Currency. In the event that such rate does not
appear on any Reuters World Currency Page, the Exchange
Rate shall be determined by reference to such other publicly
available service for displaying exchange rates as may be
agreed upon by the Administrative Agent and the Company, or,
in the absence of such agreement, such Exchange Rate shall
instead be the arithmetic average of the spot rates of
exchange of the Person then serving as the Administrative Agent
in the market where its foreign currency exchange operations
in respect of such Alternative Currency are then being
conducted, at or about 10:00 a.m., local time, on such date for
the purchase of dollars (or such Alternative Currency, as the
case may be) for delivery two Business Days later; provided that
if at the time of any such determination, for any reason, no such
spot rate is being quoted, the Administrative Agent may use any
reasonable method it deems appropriate to determine such rate,
and such determination shall be presumed correct absent manifest
error.
"Excluded Subsidiary" means any Subsidiary (i) in the
case of Domestic Subsidiaries, that is not a Guarantor and
(ii) in the case of Foreign Subsidiaries, whose voting
Capital Stock is not pledged to the Administrative Agent for its
benefit and the ratable benefit of the Lenders.
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<PAGE>
"Excluded Taxes" means, with respect to the
Administrative Agent, any Lender, the Issuing Bank or any other
recipient of any payment to be made by or on account of any
obligation of any Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) such recipient's net income
(including branch profits or similar taxes) imposed by a
Governmental Authority of the jurisdiction in which such
Lender or the applicable lending office designated by such Lender
and (b) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Company under Section
2.18(b)), any withholding tax that is imposed on amounts payable
to such Foreign Lender (i) to the extent it is in effect and
would apply as of the date such Foreign Lender becomes a party to
this Agreement or (ii) to the extent it relates to payments
received by a new lending office designated by such Foreign
Lender and is in effect and would apply at the time such lending
office is designated, except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to
receive additional amounts from the applicable Borrower with
respect to such withholding tax pursuant to Section 2.16(a)
(other than, in the case of (b)(i) or (b)(ii) above, any
withholding tax imposed on payments (A) by any Borrowing
Subsidiary that is designated after such Foreign Lender
becomes a party to this Agreement or designates a new lending
office or (B) by any Borrower from a payment location other than
one specifically identified in this Agreement or any schedule
hereto as of the date such Foreign Lender becomes a party
to this Agreement or designates a new lending office), or (iii)
that is attributable to such Foreign Lender's failure to comply
with Section 2.16(e).
"Existing Credit Agreement" means the Credit Agreement dated
as of March 1, 1995 between the Company and The Chase Manhattan
Bank, as amended.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next
1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day that is a Business
Day, the average (rounded upwards, if necessary, to the next
1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the
Company.
"Fixed Charge Coverage Ratio" means, on any date, the
ratio of (a) the result of (i) Consolidated EBITDA for the
period of four consecutive fiscal quarters of the Company
most recently ended as of such date minus (ii) Consolidated
Capital Expenditures made during such four fiscal quarters to (b)
the sum of (i) all principal payments due on, and with respect to,
Consolidated Indebtedness during the period of four
consecutive fiscal quarters of the Company
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<PAGE>
most recently ended as of such date plus (ii) Consolidated
Interest Expense for such four fiscal quarters.
"Foreign Lender" means any Lender that is organized under
the laws of a jurisdiction other than that in which the Relevant
Jurisdiction is located.
"Foreign Plan" means any pension plan or other deferred
compensation plan, program or arrangement maintained by any
Foreign Subsidiary which may or may not, under applicable
local law, be required to be funded through a trust or other
funding vehicle.
"Foreign Subsidiary" means any Subsidiary that is not
organized under the laws of any jurisdiction in the United States.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the
United States of America, any other nation or any political
subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central
bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
"Granting Lender" has the meaning assigned to such
term in Section 10.04(h).
"Guarantee" of or by any Person (the "guarantor") means
any obligation, contingent or otherwise, of the guarantor
guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the
"primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor,
direct or indirect, (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance
or supply funds for the purchase of) any security for the payment
thereof, (b) to purchase or lease property, securities or
services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to
maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other
obligation or (d) as an account party or applicant in respect
of any letter of credit or letter of guaranty issued to support
such Indebtedness or obligation; provided, that the term
Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.
"Guarantee Agreement" means each Guarantee delivered by
the applicable Subsidiary to the Administrative Agent whereby
such Subsidiary shall guarantee the obligations under the Loan
Documents, which Guarantee shall be substantially in the form of
Exhibit F.
"Guarantors" means the Subsidiaries that are or become
parties to a Guarantee Agreement.
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<PAGE>
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances,
wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas, infectious or medical
wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity
price protection agreement or other interest or currency
exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without
duplication, (a) all obligations of such Person for borrowed
money or with respect to deposits or advances of any kind, (b)
all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments, (c) all obligations of such
Person upon which interest charges are customarily paid, (d)
all obligations of such Person under conditional sale or other
title retention agreements relating to property acquired by such
Person, (e) all obligations of such Person in respect of the
deferred purchase price of property or services (including
installment obligations but excluding current accounts payable
and other accrued expenses incurred in the ordinary course of
business whether via purchase orders, system purchases or
otherwise), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property
owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, but only to the extent of the
amount of such Indebtedness secured by such Lien, (g) all
Guarantees by such Person of Indebtedness of others, (h) all
Capital Lease Obligations of such Person and all obligations of
such Person under Synthetic Leases, (i) all obligations,
contingent or otherwise, of such Person as an account party or
applicant in respect of letters of credit and letters of
guaranty, (j) all obligations of such Person in respect of
Hedging Agreements, (k) all obligations, contingent or
otherwise, of such Person in respect of bankers' acceptances,
and (l) all obligations of such Person arising with respect to
Capital Stock that is mandatorily redeemable by such Person. The
Indebtedness of any Person shall include the Indebtedness of any
other entity (including any partnership in which such Person is
a general partner) to the extent such Person is liable therefor as
a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not
liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning assigned to such term in Section
10.03(b).
"Information Memorandum" means the Confidential
Information Memorandum dated September 22, 1998 relating to the
Company and the Transactions.
"Interest Coverage Ratio" means, on any date, the ratio of
(a) Consolidated EBIT for the period of four consecutive fiscal
quarters of the Company most recently ended as of such date to
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<PAGE>
(b) Consolidated Interest Expense for the period of four
consecutive fiscal quarters of the Company most recently ended as
of such date.
"Interest Election Request" means a request by a Borrower
to convert or continue a Revolving Borrowing in accordance with
Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR
Loan (other than a Swingline Loan), the last day of each calendar
month, (b) with respect to any Eurocurrency Loan with an Interest
Period of one, two or three months, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurocurrency Loan with an Interest
Period of six months' duration, that day three months after the
first day of such Interest Period and the last day of such
Interest Period and (c) with respect to any Swingline Loan, the
Swingline Loan Maturity Date.
"Interest Period" means (a) with respect to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing
and ending on the numerically corresponding day in the calendar
month that is one, two, three or six months thereafter, as the
applicable Borrower may elect, and (b) with respect to any Money
Market Borrowing, the period commencing on the date of such
Borrowing and ending on a date no later than 10 Business Days
thereafter, as the Company may elect; provided, that (i) if any
Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurocurrency Borrowing
only, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on
the next preceding Business Day and (ii) any Interest Period
pertaining to a Eurocurrency Borrowing that commences on the
last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period.
For purposes hereof, the date of a Borrowing initially shall be
the date on which such Borrowing is made and, in the case
of a Revolving Borrowing, thereafter shall be the effective date
of the most recent conversion or continuation of such Borrowing.
"Issuing Bank" means The Chase Manhattan Bank, in its
capacity as the issuer of Letters of Credit hereunder, and its
successors in such capacity as provided in Section 2.05(i). The
Issuing Bank may, in its discretion, arrange for one or more
Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any
such Affiliate with respect to Letters of Credit issued by such
Affiliate.
"Joint Venture" means any corporation, partnership,
limited liability company or other legal entity or
arrangement in which the Company or any Subsidiary has an
equity investment and direct or indirect Control.
"Judgment Currency" has the meaning assigned to such
term in Section 10.14(b).
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<PAGE>
"LC Disbursement" means a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the Dollar
Equivalent of the aggregate undrawn amount of all outstanding
Letters of Credit at such time plus (b) the Dollar Equivalent of
the aggregate amount of all LC Disbursements that have not yet
been reimbursed by or on behalf of the Company at such time. The
LC Exposure of any Lender at any time shall be its Applicable
Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and
any other Person that shall have become a party hereto pursuant
to an Assignment and Acceptance, other than any such Person that
ceases to be a party hereto pursuant to an Assignment and
Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued
pursuant to this Agreement.
"Leverage Ratio" means, on any date, the ratio of (a)
Consolidated Indebtedness as of such date to (b) Consolidated
EBITDA for the period of four consecutive fiscal quarters of the
Company most recently ended as of such date.
"LIBO Rate" means, with respect to any Eurocurrency
Borrowing in any Committed Currency for any Interest Period,
the rate appearing on the page for such Committed Currency of
the Telerate Service (or on any successor or substitute
page of such service, or any successor to or substitute for
such service, providing rate quotations comparable to those
currently provided on such page of such service, as determined
by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to deposits
in such Committed Currency in the London interbank market)
at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the
rate for deposits in such Committed Currency with a maturity
comparable to such Interest Period. In the event that such rate
is not available at such time for any reason, then the "LIBO
Rate" with respect to such Eurocurrency Borrowing for such
Interest Period shall be the rate at which deposits in such
Committed Currency of $5,000,000 (or the Dollar Equivalent of
which is approximately equal to $5,000,000) and for a maturity
comparable to such Interest Period are offered by the principal
London office of the Person then serving as the Administrative
Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge
or security interest in, on or of such asset, (b) the interest of
a vendor or a lessor under any conditional sale agreement,
capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of
securities, any purchase option, call or similar right of a
third party with respect to such securities.
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"Loan Parties" means the Company, the Borrowing
Subsidiaries and the Guarantors.
"Loans" means the loans made by the Lenders to the
Borrowers pursuant to this Agreement.
"Loan Documents" means this Agreement, each Borrowing
Subsidiary Agreement, each Guarantee Agreement, each Security
Document, each promissory note issued pursuant to Section 2.09(e)
and each Hedging Agreement between a Loan Party and a Lender, as
each may be amended or supplemented from time to time.
"Material Adverse Effect" means a material adverse
effect on (a) the business, assets, operations, prospects or
condition, financial or otherwise, of the Company and the
Subsidiaries, taken as a whole, (b) the ability of any Loan Party
to perform, or the enforceability against any Loan Party of,
any of its obligations under any Loan Document or (c) the rights
of or benefits available to the Lenders under any Loan Document.
"Material Indebtedness" means Indebtedness (other than
the Loans and Letters of Credit), or obligations in respect of
one or more Hedging Agreements, of any one or more of the Company
and its Subsidiaries in an aggregate principal amount exceeding
$3,000,000 individually or $5,000,000 in the aggregate. For
purposes of determining Material Indebtedness, the "principal
amount" of the obligations of the Company or any Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that
the Company or such Subsidiary would be required to pay if such
Hedging Agreement were terminated at such time.
"Maturity Date" means November 19, 2003.
"Maximum Rate" has the meaning assigned to such term in
Section 10.13.
"Money Market", when used in reference to any Loan or
Borrowing, refers to whether such Loan or the Loans comprising
such Borrowing are bearing interest at a rate determined by
reference to the Money Market Rate.
"Money Market Rate" means the quoted rate per annum
offered by the Swingline Lender to the Company no later than
three hours after the quote is requested by the Company, which
quote shall be requested by the Company (a) in the case of a
Borrowing denominated in dollars, in no event later than 9:00
a.m., New York City time, on the relevant date of Borrowing, or
(b) in the case of a Borrowing denominated in an Alternative
Currency, in no event later than 9:00 a.m., London time, one
Business Day before the relevant date of Borrowing.
"Moody's" means Moody's Investors Service, Inc.
"Multicurrency Lenders" means the Lenders other than the
Domestic Lender.
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"Multiemployer Plan" means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Obligations" means the obligations of each of the Borrowing
Subsidiaries under this Agreement and the Borrowing Subsidiary
Agreements, whether for principal, interest, guaranties,
reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all reasonable fees and
disbursements of counsel to the Administrative Agent or
any Lender) or otherwise. Without limiting the generality of
the foregoing, the definition of "Obligations" includes all
amounts that would be owed by each of the Borrowing Subsidiaries
to the Lenders and the Administrative Agent under this Agreement
and the Borrowing Subsidiary Agreements but for the fact
that they are unenforceable or not allowable due to the
existence of a bankruptcy, reorganization or similar proceeding
involving a Borrowing Subsidiary.
"Other Taxes" means any and all present or future stamp
or documentary taxes or any other excise or property taxes,
charges or similar levies arising from any payment made hereunder
or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement.
"Participant" has the meaning assigned such term in Section
10.04(e).
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA and any successor entity
performing similar functions.
"Permitted Business Acquisition" means any acquisition if
immediately after giving effect thereto: (a) such acquisition is
of all or substantially all the assets of, or shares or other
equity interests in, a Person or division or line of business
of a Person (or any subsequent investment made in a previously
acquired Permitted Business Acquisitions) and relates to
the photomask manufacturing business, (b) no Default shall have
occurred and be continuing or would result therefrom, (c) all
transactions related thereto shall be consummated in
accordance with applicable laws, (d) any acquired or newly formed
corporation, partnership or limited liability company shall be
a Wholly-Owned Subsidiary and all actions required to be taken,
if any, with respect to such acquired or newly formed Subsidiary
under Section 5.09 shall have been taken and (e) the Company shall
be in compliance, on a pro forma basis after giving effect to such
acquisition or formation, with the covenants contained in Sections
6.13, 6.14, 6.15 and 6.16 recomputed as at the last day of the
most recently ended fiscal quarter of the Company as if,
for the purposes of calculating Consolidated Interest
Expense, principal due on Consolidated Indebtedness and
Consolidated Capital Expenditures but not for the purposes
of calculating Consolidated Net Income, Consolidated EBIT
and Consolidated EBITDA, such acquisition and related
financings or other transactions had occurred on the first day of
the period for testing such compliance, and, if the amount of
such investment or series of related investments exceeds
$10,000,000, then the Company shall have delivered to the
Administrative Agent and the Lenders an officers' certificate
to such effect, together with all relevant financial
information for such Subsidiary or assets.
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"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet
due or are being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's and other like Liens imposed by law,
arising in the ordinary course of business and securing
obligations that (i) are not overdue by more than 30 days, (ii)
do not exceed $3,000,000 individually or $5,000,000 in the
aggregate or (iii) are being contested in compliance with Section
5.04;
(c) pledges and deposits made in the ordinary course
of business in compliance with workers' compensation,
unemployment insurance and other social security laws or
regulations;
(d) deposits to secure the performance of bids,
trade contracts,leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article
VII; and
(f) easements, zoning restrictions, rights-of-way
and similar encumbrances on real property imposed by law or
arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the
value of the affected property or interfere with the ordinary
conduct of business of the Company or any Subsidiary;provided
that the term "Permitted Encumbrances" shall not include any
Lien securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the
principal of and interest on which are unconditionally
guaranteed by, the United States of America (or by any agency
thereof to the extent such obligations are backed by the full
faith and credit of the United States of America), in each case
maturing within three years from the date of acquisition thereof;
(b) investments in commercial paper maturing within one
year from the date of acquisition thereof and either issued by
a Lender or having, at such date of acquisition, the highest
credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within one year from the
date of acquisition thereof issued or guaranteed by or
20
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placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or any
State thereof which has a combined capital and surplus and
undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a
term of not more than 30 days for securities described in clause
(a) above and entered into with a financial institution
satisfying the criteria described in clause (c) above;
(e) investments in tax exempt obligations of any state
of the United States of America or any municipality thereof
maturing within three years of the date of acquisition thereof
and which is rated "A1" or higher by Moody's or "AA" or higher by
S&P;
(f) investments in auction rate preferred stock
maturing within 180 days of the date of acquisition thereof and
which is rated "A1" or higher by Moody's or "AA" or higher by S&P;
and
(g) investments in money market mutual funds having
assets in excess of $1,000,000,000 whose sole investments are
securities described in clauses (a) through (e) above.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.
"Plan" means any Domestic Plan or Foreign Plan.
"Pledge Agreement" means each pledge agreement delivered by
the Company or any Subsidiary to the Administrative Agent,
which pledge agreement shall be substantially in the form of
Exhibit H.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank as its
prime rate in effect at its principal office in New York City;
each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being
effective.
"Register" has the meaning assigned to such term in Section
10.04(c).
"Regulation D" means Regulation D of the Board as from
time to time in effect and all official rulings and
interpretations thereunder or thereof.
"Regulation T" means Regulation T of the Board as from
time to time in effect and all official rulings and
interpretations thereunder or thereof.
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<PAGE>
"Regulation U" means Regulation U of the Board as from
time to time in effect and all official rulings and
interpretations thereunder or thereof.
"Regulation X" means Regulation X of the Board as from
time to time in effect and all official rulings and
interpretations thereunder or thereof.
"Related Parties" means, with respect to any specified
Person, such Person's Affiliates and the respective directors,
officers, employees, agents and advisors of such Person and such
Person's Affiliates.
"Relevant Jurisdiction" means (a) in the case of any Loan
to the Company, the United States of America or any state
thereof, and (b) in the case of any Loan to any other Borrowing
Subsidiary, the jurisdiction imposing (or having the power to
impose) withholding tax on payments by such Borrowing Subsidiary
under this Agreement.
"Required Lenders" means, at any time while any Loan or
Letter of Credit is outstanding, Lenders having Revolving Credit
Exposures representing more than 50% of the sum of the total
Revolving Credit Exposures at such time and, at any time while no
Loan or Letter of Credit is outstanding, Lenders having more than
50% of the sum of the Commitments.
"Reset Date" has the meaning assigned to such term in Section
1.05.
"Restricted Payment" means any dividend or other
distribution (whether in cash, securities or other property)
with respect to any shares of any class of Capital Stock of the
Company or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such
shares of Capital Stock of the Company or any Subsidiary or any
option, warrant or other right to acquire any such shares of
Capital Stock of the Company or any Subsidiary.
"Revolving Credit Exposure" means, with respect to any
Lender at any time, the sum of the outstanding principal amount of
such Lender's Revolving Loans and its LC Exposure and Swingline
Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"S&P" means Standard & Poor's.
"SBR", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such
Borrowing, are bearing interest at a rate determined by
reference to the Swingline Base Rate.
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"Security Documents" means each Pledge Agreement and each
other security document from time to time delivered to the
Administrative Agent (including all financing statements,
assignments, stock powers and stock certificates).
"Significant Subsidiary" means any Subsidiary, including its
subsidiaries, which meets any of the following conditions:
(a) for the period of four consecutive fiscal quarters of
the Company most recently ended, the gross revenues of such
Subsidiary (exclusive of revenues derived from sales of such
Subsidiary to the Company or another Subsidiary) exceed ten
percent (10%) (or, if aggregated with the gross revenues of all
other Excluded Subsidiaries, twenty percent (20%)) of the gross
revenues of the Company and its consolidated Subsidiaries, as
determined on a consolidated basis in accordance with GAAP, or (b)
as of the end of the most recently ended fiscal quarter of the
Company, the gross assets of such Subsidiary exceed ten percent
(10%) (or, if aggregated with the gross assets of all other
Excluded Subsidiaries, twenty percent (20%)) of the total assets
of the Company and its consolidated Subsidiaries, as determined on
a consolidated basis in accordance with GAAP.
"SPC" has the meaning assigned to such term in Section
10.04(h).
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate of
the maximum reserve percentages (including any marginal,
special, emergency or supplemental reserves) expressed as a
decimal established by any Governmental Authority with
jurisdiction over the Administrative Agent or any Lender
(including any branch, affiliate or other funding office thereof
making or holding a Loan) for any category of liabilities which
includes deposits by reference to which the Base CD Rate, the
Adjusted LIBO Rate, the Money Market Rate or the Swingline Base
Rate in respect of any Borrowing is determined. Such reserve
percentages shall include those imposed pursuant to such
Regulation D. Eurocurrency Loans shall be deemed to constitute
Eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to
any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any
reserve percentage.
"Subordinated Note Indenture" means the Indenture dated as
of May 29, 1997 from the Company to The Chase Manhattan Bank, as
Trustee, as in effect on the Effective Date, pursuant to which
the Company issued the Subordinated Notes.
"Subordinated Notes" means the $103,500,000 6% Convertible
Subordinated Notes due May 15, 2004, as in effect on the Effective
Date, issued pursuant to the terms of the Subordinated Note
Indenture.
"subsidiary" means, with respect to any Person (the
"parent") at any date, any corporation, limited liability
company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the
parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date,
as well as any other
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corporation, limited liability company, partnership, association
or other entity (a) of which securities or other ownership
interests representing more than 50% of the equity or more than
50% of the ordinary voting power or, in the case of a partnership,
more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such
date, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Company including
any subsidiary of the Company created or acquired by the Company
after the date hereof.
"Swingline Base Rate" means, for any day, (a) with respect to
any Swingline Loan that is denominated in an Alternative
Currency, a rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to the average rate at which
overnight deposits in the currency in which such Swingline
Loan is denominated and approximately equal in principal amount
to such Swingline Loan are obtainable by the Swingline Lender
on such day at its lending office for such Swingline Loan in the
interbank market (or, if there is not an inter-bank market, any
other market for overnight funds in such currency
customarily utilized by the Swingline Lender), adjusted to
reflect any direct or indirect costs of obtaining such deposits
(including costs analogous to the Statutory Reserve Rate and the
Assessment Rate, to the extent applicable) and (b) with respect
to any Swingline Loan that is denominated in dollars, the
Alternate Base Rate. The Swingline Base Rate applicable to
any Swingline Loan shall be determined for each day by the
Swingline Lender in respect of such Loan and such determination
shall be conclusive absent manifest error.
"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such
time. The Swingline Exposure of any Lender at any time shall be
its Applicable Percentage of the total Swingline Exposure at
such time.
"Swingline Lender" means The Chase Manhattan Bank, in
its capacity as lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Swingline Loan Maturity Date" means the maturity date
requested by the Company in connection with a Swingline Loan
(which date shall in no event be later than the earlier of (a) 10
Business Days after the date of such Borrowing thereof and (b)
the Maturity Date).
"Synthetic Lease" means any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance
sheet financing product where such transaction is considered
borrowed money indebtedness for tax purposes but is classified
as an operating lease in accordance with GAAP.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by
any Governmental Authority.
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"Three-Month Secondary CD Rate" means, for any day, the
secondary market rate for three-month certificates of deposit
reported as being in effect on such day (or, if such day is not a
Business Day, the next preceding Business Day) by the Board
through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such
day) or, if such rate is not so reported on such day or such next
preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money
center banks in New York City received at approximately 10:00
a.m., New York City time, on such day (or, if such day is not a
Business Day, on the next preceding Business Day) by the
Administrative Agent from three negotiable certificate of
deposit dealers of recognized standing selected by it.
"Transactions" means the execution, delivery and performance
by each of the Company and the Subsidiaries of each of the Loan
Documents to which it is a party, the borrowing of Loans, the
use of the proceeds thereof and the issuance of Letters of Credit
hereunder.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the
Loans comprising such Borrowing, is determined by reference to
the Adjusted LIBO Rate, the Money Market Rate, the Alternate
Base Rate or the Swingline Base Rate.
"Wholly-Owned Subsidiary" means a Subsidiary all the Capital
Stock of which (other than directors' qualifying shares or, if
there are legal requirements for more than one shareholder, the
minimum number of shares required to comply with such requirement
so long as such minimum number does not exceed 1% of the
outstanding shares of such Capital Stock) is owned by the Company
and/or one or more other Wholly-Owned Subsidiaries.
"Withdrawal Liability" means liability to a Multiemployer
plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred
to by Class (e.g., a "Revolving Loan") or by Type (e.g., a
"Eurocurrency Loan") or by Class and Type (e.g., a "Eurocurrency
Revolving Loan"). Borrowings also may be classified and referred
to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurocurrency Borrowing") or by Class and Type (e.g., a
"Eurocurrency Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms
herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine
and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without
limitation". The word "will" shall be construed to have the
same meaning and effect as the word "shall". Unless the context
requires otherwise (a) any definition of or reference to any
agreement,
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instrument or other document herein shall be construed as
referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein), (b) any
reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed
to refer to this Agreement in its entirety and not to any
particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed
to refer to Articles and Sections of, and Exhibits and Schedules
to, this Agreement and (e) the words "asset" and "property"
shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract
rights.
SECTION 1.04. Accounting Terms; GAAP. Except as
otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the
Company requests an amendment to any provision hereof to
eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof on the operation of
such provision (or if the Administrative Agent notifies the
Company that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in
the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied
immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision
amended in accordance herewith.
SECTION 1.05. Exchange Rates. (a) Not later than 1:00 p.m.,
New York City time, on each Calculation Date, the Administrative
Agent shall (i) determine the Exchange Rate as of such
Calculation Date with respect to each Alternative Currency
and (ii) give notice thereof to the Lenders and the Company.
The Exchange Rates so determined shall become effective on the
first Business Day immediately following the relevant
Calculation Date (a "Reset Date"), shall remain effective
until the next succeeding Reset Date, and shall for all
purposes of this Agreement (other than Section 2.07, Section
2.13(i), Section 2.14(e)(ii), Section 10.14, or any other
provision expressly requiring the use of a current Exchange
Rate) be the Exchange Rates employed in converting any amounts
between dollars and Alternative Currencies; and (b) not later
than 5:00 p.m., New York City time, on each Reset Date and
each Borrowing Date with respect to Loans denominated in an
Alternative Currency, the Administrative Agent shall (i)
determine the Dollar Equivalent of the Revolving Credit Exposure
at such time (after giving effect to any Loans made or repaid on
such date) and (ii) notify the Lenders and the Company of the
results of such determination.
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ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and
conditions set forth herein, each Lender agrees to make Revolving
Loans to any Borrower from time to time during the Availability
Period in an aggregate principal amount that will not result in
(a) the Dollar Equivalent of such Lender's Revolving Credit
Exposure exceeding such Lender's Commitment or (b) the Dollar
Equivalent of the total Revolving Credit Exposures
denominated in an Alternative Currency exceeding 40% of the
total Commitments of the Multicurrency Lenders. Within the
foregoing limits and subject to the terms and conditions set
forth herein, the Borrowers may borrow, prepay and reborrow
Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan
denominated in dollars shall be made as part of a Borrowing
consisting of Revolving Loans denominated in dollars made by
the Lenders ratably in accordance with their respective
Available Commitments. Each Revolving Loan denominated in
an Alternative Currency shall be made as part of a
Borrowing consisting of Revolving Loans denominated in the
same Alternative Currency made by the Multicurrency Lenders
ratably in accordance with their respective Commitments. The
failure of any Lender to make any Loan required to be made by it
shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other
Lender's failure to make Loans as required.
(b) Subject to Section 2.13 and Section 2.14(e), each
Revolving Borrowing shall be comprised of ABR Loans (if
denominated in dollars) or Eurocurrency Loans, as the
applicable Borrower may request in accordance herewith. Each
Swingline Borrowing shall be composed of SBR Loans or Money Market
Loans, as the Company may request in accordance herewith. Each
Lender at its option may make any Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan;
provided that (i) any exercise of such option shall not
affect the obligation of any Borrower to repay such Loan in
accordance with the terms of this Agreement and (ii) unless any
Borrower shall request that an Affiliate of a Lender make a
Loan, a Lender may not recover for any increased costs under
Sections 2.14 or 2.16 incurred solely as a result of an Affiliate
of such Lender, rather than such Lender, making a Loan, if,
without economic disadvantage to, and consistent with the
policies and practices of, such Lender, such Loan could have
been made in a manner that would have avoided such increased
costs under Section 2.14 or 2.16.
(c) At the commencement of each Interest Period for any
Eurocurrency Revolving Borrowing, such Borrowing shall be in an
aggregate amount that is not less than $1,000,000 (or the
Alternative Currency Equivalent thereof) and, in the case of a
Borrowing denominated in dollars, an integral multiple of
$100,000. At the time that each ABR Revolving Borrowing is made,
such Borrowing shall be in an aggregate amount that is not less
than $500,000 and an integral multiple of $100,000; provided
that an ABR Revolving Borrowing may be in an aggregate amount
that is equal to the entire unused balance of the total
Commitments or that is
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required to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.05(e). Each Swingline Borrowing shall be
in an amount that is not less than $100,000 (or the Alternative
Currency Equivalent thereof). Borrowings of more than one Type
and Class may be outstanding at the same time; provided that
there shall not at any time be more than a total of fifteen
Eurocurrency Revolving Borrowings and Swingline Borrowings
outstanding.
(d) Notwithstanding any other provision of this
Agreement, no Borrower shall be entitled to request, or to elect
to convert or continue, any Borrowing if the Interest Period
requested with respect thereto would end after the Maturity
Date.
SECTION 2.03. Requests for Revolving Borrowings. To
request a Revolving Borrowing, a Borrower shall notify the
Administrative Agent of such request by telephone (a) in the case
of a Eurocurrency Borrowing denominated in dollars, not later
than 11:00 a.m., New York City time, three Business Days before
the date of the proposed Borrowing, (b) in the case of an ABR
Borrowing, not later than 9:00 a.m., New York City time, one
Business Day before the date of the proposed Borrowing, and (c)
in the case of a Eurocurrency Borrowing denominated in an
Alternative Currency, not later than 10:00 a.m., London time,
three Business Days before the date of the proposed Borrowing.
Each such telephonic Borrowing Request shall be irrevocable and
shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the
applicable Borrower. Each such telephonic and written Borrowing
Request shall specify the following information in compliance with
Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a
Business Day;
(iii) whether such Borrowing is to be an ABR
Borrowing or a Eurocurrency Borrowing;
(iv) in the case of a Eurocurrency Borrowing, the
currency thereof, which shall be a Committed Currency;
(v) in the case of a Eurocurrency Borrowing, the
initial Interest Period to be applicable thereto, which shall
be a period contemplated by the definition of the term "Interest
Period"; and
(vi) the location and number of the applicable
Borrower's account to which funds are to be disbursed, which
shall comply with the requirements of Section 2.06.
If no election as to the Type of Revolving Borrowing is
specified, then the requested Revolving Borrowing shall be an
ABR Borrowing if denominated in dollars or a Eurocurrency
Revolving Borrowing if denominated in an Alternative Currency. If
no election as to the currency of
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Revolving Borrowing is specified, then the requested Revolving
Borrowing shall be denominated in dollars. If no Interest
Period is specified with respect to any requested Eurocurrency
Revolving Borrowing, then the applicable Borrower shall be
deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request
in accordance with this Section 2.03, the Administrative Agent
shall advise each Lender of the details thereof and of the amount
of such Lender's Revolving Loan to be made as part of the
requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make
Swingline Loans to the Company from time to time during the
Availability Period, in an aggregate principal amount at any
time outstanding that will not result in (i) the aggregate
principal amount of outstanding Swingline Loans exceeding
$10,000,000, (ii) the Dollar Equivalent of the total Revolving
Credit Exposures denominated in an Alternative Currency
exceeding 40% of the total Commitments of the Multicurrency
Lenders, or (iii) the Dollar Equivalent of the total Revolving
Credit Exposures exceeding the total Commitments; provided that
the Swingline Lender shall not be required to make a Swingline
Loan to refinance an outstanding Swingline Loan. If the Swingline
Lender shall have received written notice that a Default has
occurred and is continuing or that the Commitments have been
terminated, the Swingline Lender shall not make additional
Swingline Loans without the consent of each Lender. Within the
foregoing limits and subject to the terms and conditions set
forth herein, the Company may borrow, prepay and reborrow
Swingline Loans.
(b) To request a Swingline Borrowing, the Company
shall notify the Administrative Agent of such request by
telephone (confirmed by telecopy), not later than (i) in the
case of a Swingline Borrowing denominated in dollars, 9:00 a.m.,
New York City time, on the day of a proposed Swingline Borrowing,
and (ii) in the case of a Swingline Borrowing denominated in an
Alternative Currency, 9:00 a.m., London time, one Business
Day before the date of the proposed Swingline Borrowing. Each
such notice shall be irrevocable and shall specify (i) the
requested date (which shall be a Business Day), (ii) the
amount of the requested Swingline Loan, (iii) whether such
Borrowing is to be an SBR Borrowing or a Money Market Borrowing,
(iv) the currency of the requested Swingline Loan (which shall
be a Committed Currency) and (v) in the case of a Money Market
Borrowing, the Interest Period to be applicable thereto, which
shall be a period contemplated by the definition of the term
"Interest Period". The Administrative Agent will promptly advise
the Swingline Lender of any such notice received from the Company.
The Swingline Lender shall make each Swingline Loan available to
the Company by means of a credit to the general deposit account
of the Company with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(e), by remittance to
the Issuing Bank) on the requested date of such Swingline Loan by
(i) in the case of a Swingline Loan denominated in dollars, 3:00
p.m., New York City time, and (ii) in the case of a
Swingline Loan denominated in an Alternative Currency, 3:00
p.m., London time.
(c) The Swingline Lender may by written notice given to the
Administrative Agent (i) in the case of a Swingline Loan
denominated in dollars, not later than 10:00 a.m., New York City
time, on the Business Day of the proposed acquisition of
participations and (ii) in the
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case of a Swingline Loan denominated in an Alternative Currency,
not later than 10:00 a.m., London time, two Business Days
before the date of the proposed acquisition of participations,
require the Lenders to acquire participations on any Business Day
in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in
which Lenders will participate. Upon the giving of any such
notice, each Money Market Swingline Loan shall be converted to
an SBR Borrowing at the end of the Interest Period applicable
thereto and the right of the Company to request any further Money
Market Borrowings shall be terminated. Promptly upon receipt
of such notice, the Administrative Agent will give notice
thereof to each Lender, specifying in such notice such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each
Lender hereby absolutely and unconditionally agrees, upon the
date of the proposed acquisition of participations as provided
above, to pay to the Administrative Agent, for the account of
the Swingline Lender, such Lender's Applicable Percentage of
such Swingline Loan or Loans in the same currency in which
such Loans are denominated. Each Lender acknowledges and
agrees that its obligation to acquire participations in Swingline
Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including
the occurrence and continuance of a Default or reduction or
termination of the Commitments but excluding additional
Swingline Loans made in contravention of Section 2.04(a), and
that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Lender
shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as
provided in Section 2.06 with respect to Revolving Loans made
by such Lender (and Section 2.06 shall apply, mutatis mutandis,
to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the Swingline
Lender the amounts so received by it from the Lenders. The
Administrative Agent shall notify the Company of any
participations in any Swingline Loan acquired pursuant to this
paragraph, and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender
from the Company (or other party on behalf of the Company) in
respect of a Swingline Loan after receipt by the Swingline
Lender of the proceeds of a sale of participations therein shall
be promptly remitted to the Administrative Agent; any such
amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Lenders that shall
have made their payments pursuant to this paragraph and to the
Swingline Lender, as their interests may appear. The
purchase of participations in a Swingline Loan pursuant to this
paragraph shall not relieve the Company of any default in the
payment thereof.
SECTION 2.05. Letters of Credit. (a) General. Subject to
the terms and conditions set forth herein, the Company may
request the issuance of Letters of Credit for its own account,
in a form reasonably acceptable to the Administrative
Agent and the Issuing Bank, at any time and from time to time
during the Availability Period. If the Issuing Bank shall have
received written notice that a Default has occurred and is
continuing or that the Commitments have been terminated, the
Issuing Bank shall not issue Letters of Credit without the consent
of each Lender. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and
conditions of any form of letter of credit application or other
agreement submitted by the Company to, or entered into by the
Company with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.
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(b) Notice of Issuance, Amendment, Renewal, Extension;
Certain Conditions. To request the issuance of a Letter of
Credit (or the amendment, renewal or extension of an outstanding
Letter of Credit), the Company shall hand deliver or telecopy (or
transmit by electronic communication, if arrangements for doing
so have been approved by the Issuing Bank) to the
Issuing Bank and the Administrative Agent (reasonably in
advance of the requested date of issuance, amendment, renewal or
extension) a notice requesting the issuance of a Letter of Credit,
or identifying the Letter of Credit to be amended, renewed or
extended, and specifying the date of issuance, amendment,
renewal or extension (which shall be a Business Day), the date
on which such Letter of Credit is to expire (which shall comply
with paragraph (c) of this Section), the amount of such Letter
of Credit, the currency in which such Letter of Credit is
to be denominated (which shall be a Committed Currency), the
name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. If requested by the Issuing Bank,
the Company also shall submit a letter of credit application
on the Issuing Bank's standard form in connection with any
request for a Letter of Credit. A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the
Company shall be deemed to represent and warrant that), after
giving effect to such issuance, amendment, renewal or extension
(i) the Dollar Equivalent of the LC Exposure shall not exceed
$10,000,000, (ii) the Dollar Equivalent of the total Revolving
Credit Exposures denominated in an Alternative Currency shall
not exceed 40% of the total Commitments of the Multicurrency
Lenders, and (iii) the Dollar Equivalent of the total Revolving
Credit Exposures shall not exceed the total Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at
or prior to the close of business on the earlier of (i) the date
not later than one year after the date of the issuance of such
Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (ii) the
date that is five Business Days prior to the Maturity Date.
(d) Participations. By the issuance of a Letter of Credit
(or an amendment to a Letter of Credit increasing the amount
thereof) and without any further action on the part of the
Issuing Bank or the Lenders, the Issuing Bank hereby grants to
each Lender, and each Lender hereby acquires from the Issuing
Bank, a participation in such Letter of Credit equal to such
Lender's Applicable Percentage of the aggregate amount
available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Lender
hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, such
Lender's Applicable Percentage of each LC Disbursement made by
the Issuing Bank and not reimbursed by the Company on the date
due as provided in paragraph (e) of this Section in the same
currency in which such LC Disbursement is designated, or of
any reimbursement payment required to be refunded to the
Company for any reason in the currency in which such
reimbursement payment is denominated. Each Lender acknowledges
and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the
Commitments but excluding additional Letters of
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Credit issued in contravention of Section 2.05(a), and that
each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Company shall
reimburse such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement in the same currency
in which such LC Disbursement is denominated not later than (i)
in the case of an LC Disbursement denominated in dollars, 12:00
noon, New York City time, and (ii) in the case of an LC
Disbursement denominated in an Alternative Currency, 11:00
a.m., London time, on the Business Day immediately following the
date the Company shall have received notice of such LC
Disbursement; provided that, the Company may, subject to the
conditions to borrowing set forth herein, request in accordance
with Section 2.03 or 2.04 that such payment be financed with an
ABR Revolving Borrowing (if denominated in dollars) or a
Swingline Borrowing in an equivalent amount and, to the extent so
financed, the Company's obligation to make such payment shall be
discharged and replaced by the resulting ABR Revolving Borrowing
or Swingline Borrowing. If the Company fails to make such
payment when due, the Administrative Agent shall notify each
Lender of the applicable LC Disbursement, the payment then due
from the Company in respect thereof and such Lender's Applicable
Percentage thereof. Promptly following receipt of such
notice, each Lender shall pay to the Administrative Agent its
Applicable Percentage of the payment then due from the Company,
in the same manner as Revolving Loans made by such Lender (and
Section 2.06 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall
promptly pay to the Issuing Bank the amounts so received by it
from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Company pursuant to
this paragraph, the Administrative Agent shall distribute such
payment to the Issuing Bank or, to the extent that Lenders have
made payments pursuant to this paragraph to reimburse the
Issuing Bank, then to such Lenders and the Issuing Bank as their
interests may appear. Any payment made by a Lender pursuant to
this paragraph to reimburse the Issuing Bank for any LC
Disbursement (other than the funding of ABR Revolving Loans or
a Swingline Loan as contemplated above) shall not constitute
a Loan and shall not relieve the Company of its obligation
to reimburse such LC Disbursement. Notwithstanding anything
to the contrary contained herein, the obligation of a
Lender to provide a Loan (or a participation in a Loan) or
to reimburse the Issuing Bank with respect to an LC Disbursement
shall not exceed such Lender's Applicable Percentage of such LC
Disbursement.
(f) Obligations Absolute. The Company's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this
Section shall be absolute,unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this
Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of
any Letter of Credit or this Agreement, or any term or provision
therein, (ii) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank
under a Letter of Credit against presentation of a draft or
other document that does not comply with the terms of such Letter
of Credit, or (iv) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but
for the provisions of
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this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Company's obligations
hereunder. Neither the Administrative Agent, the Lenders nor
the Issuing Bank, nor any of their Related Parties, shall have
any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss
or delay in transmission or delivery of any draft, notice or other
communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence
arising from causes beyond the control of the Issuing Bank;
provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Company to the extent of any
direct damages (as opposed to consequential damages, claims
in respect of which are hereby waived by the Company to the extent
permitted by applicable law) suffered by the Company that are
caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof. The
parties hereto expressly agree that, in the absence of gross
negligence or wilful misconduct on the part of the Issuing Bank
(as finally determined by a court of competent jurisdiction),
the Issuing Bank shall be deemed to have exercised care in each
such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with
respect to documents presented which appear on their face to be
in substantial compliance with the terms of a Letter of Credit,
the Issuing Bank may, in its sole discretion, either accept and
make payment upon such documents without responsibility for
further investigation, regardless of any notice or information
to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with
the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall promptly notify the
Administrative Agent and the Company by telephone (confirmed
by telecopy) of such demand for payment and whether the Issuing
Bank has made or will make an LC Disbursement thereunder;
provided that any failure to give or delay in giving such notice
shall not relieve the Company of its obligation to reimburse
the Issuing Bank and the Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Company shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made,
the unpaid amount thereof shall bear interest, for each day
from and including the date such LC Disbursement is made to but
excluding the date that the Company reimburses such LC
Disbursement, at the Swingline Base Rate plus the Swingline
Margin plus 2%. Interest accrued pursuant to this paragraph
shall be for the account of the Issuing Bank, except that
interest accrued on and after the date of payment by any Lender
pursuant to paragraph (e) of this Section to reimburse the
Issuing Bank shall be for the account of such Lender to the extent
of such payment.
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(i) Replacement of the Issuing Bank. The Issuing Bank may
be replaced at any time by written agreement among the Company,
the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify
the Lenders of any such replacement of the Issuing Bank. At
the time any such replacement shall become effective, the
Company shall pay all unpaid fees accrued for the account of the
replaced Issuing Bank pursuant to Section 2.11(b). From and
after the effective date of any such replacement, (i) the
successor Issuing Bank shall have all the rights and obligations
of the Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to
the term "Issuing Bank" shall be deemed to refer to such successor
or to any previous Issuing Bank, or to such successor and all
previous Issuing Banks, as the context shall require. After
the replacement of an Issuing Bank hereunder, the replaced Issuing
Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it prior to
such replacement, but shall not be required to issue additional
Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall
occur and be continuing, on the Business Day that the Company
receives notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated,
Lenders with LC Exposure representing greater than 50% of the
total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Company shall deposit in an
account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an
amount in cash equal to the LC Exposure as of such date plus
any accrued and unpaid interest thereon; provided that the
obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the
Company described in clause (h) or (i) of Article VII. Such
deposit shall be held by the Administrative Agent as collateral
for the payment and performance of the obligations of the
Company under this Agreement. The Administrative Agent shall have
exclusive dominion and control, including the exclusive
right of withdrawal, over such account. Other than any interest
earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the
Administrative Agent and at the Company's risk and expense, such
deposits shall not bear interest. Interest or profits, if any,
on such investments shall accumulate in such account. Moneys in
such account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it
has not been reimbursed and, to the extent not so applied,
shall be held for the satisfaction of the reimbursement
obligations of the Company for the LC Exposure at such time or,
if the maturity of the Loans has been accelerated (but subject
to the consent of Lenders with LC Exposure representing greater
than 50% of the total LC Exposure), be applied to satisfy other
obligations of the Company under this Agreement. If the
Company is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be
returned to the Company within three Business Days after all
Events of Default have been cured or waived.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer ofimmediately available
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funds by (i) 12:00 noon, New York City time, in the case of a
Loan denominated in dollars, and (ii) 11:00 a.m., London time,
in the case of a Loan denominated in an Alternative Currency,
to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders;
provided that Swingline Loans shall be made as provided in
Section 2.04. The Administrative Agent will make such Loans
available to the applicable Borrower by promptly crediting the
amounts so received, in like funds, to an account of such
applicable Borrower maintained with the Administrative Agent
(i) in the case of a Loan denominated in dollars, in New York
City, and (ii) in the case of a Loan denominated in an
Alternative Currency, in London, in each case as designated by
such applicable Borrower in the applicable Borrowing Request;
provided that ABR Revolving Loans made to finance the
reimbursement of an LC Disbursement as provided in Section
2.05(e) shall be remitted by the Administrative Agent to the
Issuing Bank.
(b) Unless the Administrative Agent shall have received
notice from a Lender prior to the proposed date of any
Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing,
the Administrative Agent may assume that such Lender has made
such share available on such date in accordance with paragraph
(a) of this Section and may, in reliance upon such assumption,
make available to the applicable Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the applicable Borrower
severally agree to pay (without duplication) to the
Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the
date such amount is made available to the applicable Borrower to
but excluding the date of payment to the Administrative Agent,
at (i) in the case of such Lender, (x) the Federal Funds
Effective Rate (in the case of a Borrowing in dollars) and (y)
the rate reasonably determined by the Administrative Agent to be
the cost to it of funding such amount (in the case of a
Borrowing in an Alternative Currency) or (ii) in the case of
such Borrower, the interest rate applicable to the subject
Loan. If a Lender pays its share of such Borrowing with
interest thereon to the Administrative Agent, then such amount
shall constitute such Lender's Loan included in such Borrowing as
of the date of such Borrowing and the obligations of the
applicable Borrower to pay such Loan to the Administrative Agent
under this Section 2.06(b) shall terminate.
SECTION 2.07. Interest Elections. (a) Each
Revolving Borrowing initially shall be of the Type specified in
the applicable Borrowing Request and, in the case of a
Eurocurrency Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request.
Thereafter, the applicable Borrower may elect to convert such
Borrowing to a different Type or to continue such Borrowing
and, in the case of a Eurocurrency Revolving Borrowing, may
elect Interest Periods therefor, all as provided in this Section.
A Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the
Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate
Borrowing. Notwithstanding any contrary provision herein,
this Section shall not be construed to permit any Borrower
to change the currency or Class of any Borrowing.
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(b) To make an election pursuant to this Section, a
Borrower shall notify the Administrative Agent of such election
by telephone by the time that a Borrowing Request would be
required under Section 2.03 if such Borrower were requesting a
Revolving Borrowing of the Type resulting from such election to
be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and
shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the
applicable Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section
2.02:
(i) the Borrowing to which such Interest Election
Request applies and, if different options are being elected with
respect to different portions thereof, the portions thereof to
be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv)
below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business Day;
(iii) if the Borrowing to which such Interest Election
Request applies is denominated in dollars, whether the resulting
Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
and
(iv) if the resulting Borrowing is a Eurocurrency
Borrowing, the Interest Period to be applicable thereto
after giving effect to such election, which shall be a period
contemplated by the definition of the term "Interest Period".
If any such Interest Election Request requests a Eurocurrency
Borrowing but does not specify an Interest Period, then the
Borrower shall be deemed to have selected an Interest Period of
one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the
details thereof and of such Lender's portion of each resulting
Borrowing.
(e) If the applicable Borrower fails to deliver a timely
Interest Election Request with respect to a Eurocurrency
Revolving Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing (unless such
Borrowing is denominated in an Alternative Currency, in which
case such Borrowing shall become due and payable on the last day
of such Interest Period). Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of the
Required Lenders, so notifies the applicable Borrower and the
Company, then, so long as
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an Event of Default is continuing (i) no outstanding Revolving
Borrowing may be converted to or continued as a Eurocurrency
Borrowing and (ii) unless repaid, each Eurocurrency Revolving
Borrowing shall be converted to an ABR Borrowing at the end of
the Interest Period applicable thereto (and, in the case of
a Eurocurrency Borrowing denominated in an Alternative Currency,
such Borrowing shall be converted into dollars at the
Exchange Rate determined by the Administrative Agent on the
last day of the Interest Period applicable thereto).
SECTION 2.08. Termination and Reduction of
Commitments. (a) Unless previously terminated, the Commitments
shall terminate on the Maturity Date.
(b) The Company may at any time terminate, or from time to
time reduce, the Commitments; provided that (i) each reduction of
the Commitments shall be in an amount that is an integral
multiple of $100,000 and not less than $500,000 and (ii) the
Company shall not terminate or reduce the Commitments if, after
giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.10, (A) the Dollar Equivalent of
the total Revolving Credit Exposures denominated in an
Alternative Currency would exceed 40% of the total Commitments of
the Multicurrency Lenders or (B) the Dollar Equivalent of the
total Revolving Credit Exposures would exceed the total
Commitments.
(c) The Company shall notify the Administrative Agent of
any election to terminate or reduce the Commitments under
paragraph (b) of this Section at least three Business Days
prior to the effective date of such termination or
reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Company pursuant to this
Section shall be irrevocable; provided that a notice of
termination of the Commitments delivered by the Company may
state that such notice is conditioned upon the effectiveness
of other credit facilities or issuances ofdebt or equity
securities or sale of assets or any line of business, in which
case such notice may be revoked by the Company (by notice to the
Administrative Agent on or prior to the specified effective
date) if such condition is not satisfied. Any termination or
reduction of the Commitments shall be permanent. Each reduction
of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a)
Each Borrower hereby unconditionally promises to pay on
the Maturity Date to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each
Revolving Loan provided by such Lender to such Borrower. The
Company hereby unconditionally promises to pay to the Swingline
Lender the then unpaid principal amount of each Swingline Loan
on the Swingline Loan Maturity Date; provided that on each date
that a Revolving Borrowing in a specified Committed Currency
is made, the Company shall repay all Swingline Loans in such
Committed Currency then outstanding.
(b) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the
indebtedness of the applicable Borrower to such Lender resulting
from
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each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time
to time hereunder.
(c) The Administrative Agent shall maintain accounts in
which it shall record (i) the amount of each Loan made hereunder,
the Class, Type and currency thereof and the Interest Period (if
any) applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) the amount of any
sum received by the Administrative Agent hereunder for the
account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie
evidence of the existence and amounts of the obligations
recorded therein; provided that the failure of any Lender or
the Administrative Agent to maintain such accounts or any
error therein shall not in any manner affect the obligation of
any Borrower to repay the Loans in accordance with the terms of
this Agreement.
(e) Any Lender may request that Loans made by it be
evidenced by a promissory note; provided that the Loans made by
the Domestic Lender shall, in any event, be evidenced by a
promissory note. In the event that a Multicurrency Lender
requests a promissory note or in the case of the Domestic Lender,
each Borrower shall prepare, execute and deliver to such Lender
a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent,
substantially in the form of Exhibit G. After the delivery of
any such promissory note, the Loans evidenced by such
promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.04) be
represented by one or more promissory notes in such form payable
to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.10. Prepayment of Loans. (a) Subject to
Section 2.15, any Borrower shall have the right at any time
and from time to time to prepay any Borrowing of such Borrower
in whole or in part, subject to prior notice in accordance with
paragraph (c) of this Section.
(b) If (i) the Dollar Equivalent of the total Revolving
Credit Exposures denominated in an Alternative Currency exceeds
40% of the total Commitments of the Multicurrency Lenders or
(ii) the Dollar Equivalent of the total Revolving Credit Exposures
exceeds the total Commitments, the Company, on such day, shall
cause the Borrowers to prepay one or more Borrowings, in whole or
in part, in an amount sufficient to eliminate such excess.
(c) The applicable Borrower shall notify the Administrative
Agent (and, in the case of prepayment of a Swingline Loan, the
Swingline Lender) by telephone (confirmed by telecopy) of any
prepayment hereunder (i) in the case of prepayment of a
Eurocurrency Revolving Borrowing denominated in dollars, not
later than 9:00 a.m., New York City time, three Business Days
before the date of prepayment, (ii) in the case of prepayment of a
Eurocurrency Revolving Borrowing denominated in an Alternative
Currency, not later than 9:00 a.m., London time, three
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Business Days prior to the date of prepayment, (iii) in the case
of prepayment of a Money Market Borrowing denominated in
dollars, not later than 9:00 a.m., New York City time, two
Business Days before the date of prepayment, (iv) in the case of
prepayment of a Money Market Borrowing denominated in an
Alternative Currency, not later than 9:00 a.m., London time,
two Business Days before the date of prepayment, (v) in the case
of prepayment of an ABR Revolving Borrowing or SBR Swingline
Borrowing denominated in dollars, not later than 9:00 a.m., New
York City time, one Business Day before the date of prepayment,
and (vi) in the case of prepayment of an SBR Swingline Borrowing
denominated in an Alternative Currency, not later than 9:00 a.m.,
London time, one Business Day before the date of prepayment.
Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of
prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section
2.08, then such notice of prepayment may be revoked if such
notice of termination is revoked in accordance with Section
2.08. Promptly following receipt of any such notice relating to
a Revolving Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any
Revolving Borrowing shall be in an amount that would be permitted
in the case of an advance of a Revolving Borrowing of the same
Type as provided in Section 2.02. Each prepayment of a Revolving
Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.12.
SECTION 2.11. Fees. (a) The Company agrees to pay to the
Administrative Agent for the account of each Lender a facility
fee, which shall accrue at the Applicable Rate on the daily
unused amount of the Commitment of such Lender during the
period from and including the date hereof to but excluding the
date on which such Commitment terminates; provided that, if such
Lender continues to have any Revolving Credit Exposure after its
Commitment terminates, then such facility fee shall continue
to accrue on the daily amount of such Lender's Revolving
Credit Exposure from and including the date on which its
Commitment terminates to but excluding the date on which such
Lender ceases to have any Revolving Credit Exposure. Accrued
facility fees shall be payable in arrears on the last day of
March, June, September and December of each year and on the date
on which the Commitments terminate, commencing on the first such
date to occur after the date hereof; provided that any facility
fees accruing after the date on which the Commitments terminate
shall be payable on demand. All facility fees shall be computed
on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but
excluding the last day). For purposes of this Section
2.11(a), the unused amount of the Commitment of such Lender
shall be deemed to be the excess of (i) the aggregate Commitment
of such Lender over (ii) the aggregate Revolving Credit Exposure
of such Lender (exclusive of Swingline Exposure).
(b) The Company agrees to pay (i) to the Administrative
Agent for the account of each Lender a participation fee with
respect to its participations in Letters of Credit, which shall
accrue at the same Applicable Rate as interest on Eurocurrency
Revolving Loans on the average daily amount of such Lender's LC
Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and
including the Effective Date to but
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excluding the later of the date on which such Lender's Commitment
terminates and the date on which such Lender ceases to have any
LC Exposure, and (ii) to the Issuing Bank a fronting fee,
which shall accrue at the rate or rates per annum separately
agreed upon between the Company and the Issuing Bank on the
average daily amount of the LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during
the period from and including the Effective Date to but
excluding the later of the date of termination of
theCommitments and the date on which there ceases to be any LC
Exposure, as well as the Issuing Bank's standard fees with
respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder.
Participation fees and fronting fees accrued through and
including the last day of March, June, September and December
of each year shall be payable on the third Business Day
following such last day, commencing on the first such date to
occur after the Effective Date; provided that all such fees
shall be payable on the date on which the Commitments terminate
and any such fees accruing after the date on which the Commitments
terminate shall be payable on demand. Any other fees payable to
the Issuing Bank pursuant to this paragraph shall be payable
within 10 days after demand. All participation fees and
fronting fees shall be computed on the basis of a year of 360
days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(c) The Company agrees to pay to the Administrative
Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Company and the
Administrative Agent. The Company agrees to pay to the
Documentation Agent, for its own account, fees payable in the
amounts and at the times separately agreed upon between the
Company and the Documentation Agent.
(d) The Company agrees to pay on the Effective Date to the
Administrative Agent, for the account of each Lender, an upfront
fee equal to (i) in the case of a Multicurrency Lender, .125%
of such Lender's Commitment and (ii) in the case of the Domestic
Lender, .100% of such Lender's Commitment.
(e) All fees payable hereunder shall be paid on the
dates due, in immediately available funds, to the
Administrative Agent (or to the Issuing Bank, in the case of
fees payable to it) for distribution, in the case of facility
fees and participation fees, to the Lenders. Fees paid shall
not be refundable under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR
Borrowing shall bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall
bear interest at the Adjusted LIBO Rate for the Interest Period in
effect for such Borrowing plus the Applicable Rate.
(c) The Loans compromising each SBR Borrowing shall bear
interest at the Swingline Base Rate plus, in the case of an SBR
Borrowing denominated in an Alternative Currency, the Applicable
Rate.
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(d) The Loans comprising each Money Market Borrowing shall
bear interest at the Money Market Rate for the Interest Period in
effect for such Borrowing.
(e) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by any
Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue amount
shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any
Loan, 2% plus the rate otherwise applicable to such Loan as
provided in the preceding paragraphs of this Section and (ii)
in the case of any other amount, 2% plus the rate applicable
to ABR Loans as provided in paragraph (a) of this Section.
(f) Accrued interest on each Loan shall be payable in
arrears on each Interest Payment Date for such Loan and, in the
case of Revolving Loans, upon termination of the Commitments;
provided that (i) interest accrued pursuant to paragraph (d) of
this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the
Availability Period), accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment
or prepayment, (iii) in the event of any conversion of
any Eurocurrency Revolving Loan or Money Market Loan prior to the
end of the current Interest Period therefor, accrued interest on
such Loan shall be payable on the effective date of such
conversion and (iv) all accrued interest shall be payable upon
termination of the Commitments.
(g) All interest hereunder shall be computed on the basis of
a year of 360 days shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). The
applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate
shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing:
(a) the Administrative Agent determines (which
determination shall be conclusive absent manifest error) that
adequate and reasonable means do not exist for ascertaining
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such
Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders that in their reasonable determination the Adjusted
LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period will not adequately and fairly reflect the cost to such
Lenders (or Lender) of making or maintaining their Loans (or its
Loan) included in such Borrowing for such Interest Period; or
(c) the Administrative Agent determines (which
determination shall be conclusive absent manifest error) that
deposits in the applicable Committed Currency are not
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generally available, or cannot be obtained by the Lenders,
in the London interbank market, as applicable;
then the Administrative Agent shall give notice thereof to the
Company and the applicable Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the
Lenders that the circumstances giving rise to such notice no
longer exist, (i) any Interest Election Request that requests
the conversion of any Revolving Borrowing to, or continuation
of any Revolving Borrowing as, a Eurocurrency Borrowing shall
be ineffective, and any Eurocurrency Borrowing so requested to be
continued shall, at the option of the Company or the applicable
Borrower, be repaid on the last day of the then current
Interest Period with respect thereto or shall be converted to an
ABR Borrowing denominated in dollars at the Exchange Rate
determined by the Administrative Agent in accordance with this
Agreement on the last day of the then current Interest Period
with respect thereto, (ii) if any Borrowing Request requests
a Eurocurrency Revolving Borrowing in dollars, such Borrowing
shall be made as an ABR Borrowing and (iii) any request by any
Borrower for any other Eurocurrency Borrowing in the affected
Committed Currency shall be ineffective; provided that (A) if the
circumstances giving rise to such notice affect only one Type of
Borrowings, then the other Type of Borrowings shall be permitted
and (B) if the circumstances giving rise to such notice do not
affect all applicable currencies, then requests for
Eurocurrency Borrowings may be made in the currencies that are
not affected thereby.
SECTION 2.14. Increased Costs; Illegality.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any
Lender(except any such reserve requirement reflected in the
Adjusted LIBO Rate, the Money Market Rate or the Swingline Base
Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the
London interbank market (or any other market in which the funding
operations of such Lender shall be conducted with respect to
any Committed Currency) any other condition affecting this
Agreement or Loans made by such Lender or any Letter of Credit
or participation therein;
and the result of any of the foregoing shall be to increase
the cost to such Lender of making or maintaining any Loan (or of
maintaining its obligation to make any Loan) or to increase the
cost to such Lender or the Issuing Bank of participating in,
issuing or maintaining any Letter of Credit or to reduce the
amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or
otherwise), then the Company will pay or cause the applicable
Borrower to pay to such Lender or the Issuing Bank, as the case
may be, such
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additional amount or amounts as will compensate such Lender or the
Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any
Change in Law regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender's or the
Issuing Bank's capital or on the capital of such Lender's or the
Issuing Bank's holding company, if any, as a consequence of this
Agreement or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by
the Issuing Bank, to a level below that which such Lender or the
Issuing Bank or such Lender's or the Issuing Bank's holding
company could have achieved but for such Change in Law (taking
into consideration such Lender's or the Issuing Bank's policies
and the policies of such Lender's or the Issuing Bank's holding
company with respect to capital adequacy), then from time to time
the Company will pay or cause the applicable Borrower to pay to
such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or
the Issuing Bank or such Lender's or the Issuing Bank's holding
company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such
Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company, as the case may be, as specified in
paragraph (a) or (b) of this Section 2.14 and in reasonable
detail the basis for such amount and the allocation to the
applicable Borrower(s) of such amount shall be delivered to the
Company and shall be conclusive absent manifest error. The Company
shall pay or cause the applicable Borrower to pay such Lender or
the Issuing Bank, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the
Issuing Bank to demand compensation pursuant to this Section
2.14 shall not constitute a waiver of such Lender's or the
Issuing Bank's right to demand such compensation; provided
that the Company shall not be required to compensate a Lender or
the Issuing Bank pursuant to this Section 2.14 for any increased
costs or reductions incurred more than 270 days prior to the date
that such Lender or the Issuing Bank notifies the Company of
the Change in Law giving rise to such increased costs or
reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that,
if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 270-day period referred to
above shall be extended to include the period of retroactive
effect thereof.
(e) Notwithstanding any other provision of this Agreement,
if, after the date hereof, (i) any Change in Law shall make it
unlawful for any Lender to make or maintain any Loan or to give
effect to its obligations as contemplated hereby with respect to
any Loan, or (ii) there shall have occurred any change in
national or international financial, political or economic
conditions (including the imposition of or any change in
exchange controls or the introduction of different types of
currency to replace the currency in which such Loan was made
(other than as provided in Section 10.15)) or currency
exchange rates which would make it
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impracticable in such Lender's reasonable determination for any
Lender to make or maintain Loans denominated in a particular
Committed Currency to, or for the account of, any Borrower,
then, by written notice to the Company and the applicable
Borrower and to the Administrative Agent:
(i) such Lender may declare that Loans (in the
affected currency or currencies) will not thereafter (for the
duration of such unlawfulness) be made by such Lender hereunder
(or be continued for additional Interest Periods), whereupon
any request for a Borrowing (in the affected currency or
currencies) (or to continue a Borrowing (in the affected
currency or currencies) for an additional Interest Period)
shall, as to such Lender only, be deemed a request for a Loan
denominated in dollars (or a request to convert a Eurocurrency
Loan (in the affected currency or currencies) into a
Eurocurrency Loan denominated in dollars on the last day of the
then current Interest Period with respect thereto), unless
such declaration shall be subsequently withdrawn;
(ii) such Lender may require that all outstanding
Loans (in the affected currency or currencies) made by it
be converted to Loans denominated in dollars, in which
event all such Loans (in the affected currency or currencies)
shall be converted to Loans denominated in dollars as of the
effective date of such notice as provided in paragraph (f) below
and at the Exchange Rate on the date of such conversion;
provided the applicable Borrower shall retain the option to
prepay such loans under Section 2.10 (so long as the Loans of
the other Lenders of the same Type, Class, currency and Interest
Period are prepaid at the same time) in each affected currency if
such affected currency in an Eligible Currency at the time of such
prepayment; and
(iii) in the case of any such change affecting the
Issuing Bank's ability to issue, or the Swingline Lender's
ability to lend, or any Lender's ability to acquire
participations in, Letters of Credit or Swingline Loans,
such Issuing Bank or such Lender shall declare that Letters
or Credit will not thereafter be issued, or Swingline Loans
will not be made, in the affected currency or currencies,
whereupon the affected currency or currencies shall be
deemed (for the duration of such unlawfulness or
impracticability) not to constitute a Committed Currency for
purposes of the issuance of Letters of Credit or the
making of Swingline Loans, unless such declaration shall be
subsequently withdrawn.
In the event any Lender shall exercise its rights under
(i) or (ii) above, all payments and prepayments of principal
that would otherwise have been applied to repay the Loans that
would have been made by such Lender or the converted Loans of
such Lender shall instead be applied to repay the Loans
denominated in dollars, as the case may be, made by such Lender
in lieu of, or resulting from the conversion of, such Loans.
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(f) In addition to any other indemnification or other
"gross-up" provisions contained herein, if any law, or any
governmental or quasi-governmental rule, regulation, policy,
guideline, or directive of any jurisdiction outside of the United
States, imposes or deems applicable any reserve, assessment or
other charge or cost on any Lender domiciled in the United
States and the result of any of the foregoing is to increase
the cost to such Lender of making or maintaining any Loan to a
Borrowing Subsidiary not incorporated under the laws of the
United States or to reduce the return received by such
Lender in connection with any such Loan, then, to the extent
that such Lender is not otherwise indemnified (whether pursuant
to the definition of the term Statutory Reserve Rate or otherwise)
hereunder for same, such Borrowing Subsidiary shall pay such
Lender such additional amount or amounts as will compensate such
Lender for such increased costs or reduction in the amount
received. A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lenders setting forth in
reasonable detail the basis for such amount and the allocation to
the Company and the applicable Borrower shall be delivered to
the Company which shall be conclusive absent manifest error.
(g) For purposes of this Section 2.14, a notice to the
Company and the applicable Borrower by any Lender shall be
effective as to each Loan made by such Lender, if lawful, on
the last day of the Interest Period currently applicable to
such Eurocurrency Loan; in all other cases such notice shall be
effective on the date of receipt thereof by the Company and
the applicable Borrower.
SECTION 2.15. Break Funding Payments. In the event of (a)
the payment of any principal of any Eurocurrency Loan or Money
Market Loan other than on the last day of an Interest Period
applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurocurrency Loan or Money
Market Loan other than on the last day of the Interest Period
applicable thereto, (c) the conversion of a Alternative
Currency Loan to a dollar denominated Loan pursuant to Section
2.13(i) or Section 2.14(e)(ii), (d) the failure to borrow,
onvert, continue or prepay any Revolving Loan on the date
specified in any notice delivered pursuant hereto (regardless
of whether such notice may be revoked under Section 2.10(c) and
is revoked in accordance therewith), or (e) the assignment of
any Eurocurrency Loan or Money Market Loan other than on the
last day of the Interest Period applicable thereto as a result
of a request by the Company pursuant to Section 2.18, then, in any
such event, the Company shall compensate each Lender for the
loss, cost and expense attributable to such event. In the case
of a Eurocurrency Loan or Money Market Loan, such loss, cost or
expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the
amount ofinterest which would have accrued on the principal
amount of such Loan, had such event not occurred, at the
Adjusted LIBO Rate (in the case of a Eurocurrency Loan) or at
the Money Market Rate (in the case of a Money Market Loan) that
would have been applicable to such Loan, for the period from the
date of such event to the last day of the then current Interest
Period therefor (or, in the case of a failure to borrow, convert
or continue, for the period that would have been the Interest
Period for such Loan), over (ii) the amount of interest
which would accrue on such principal amount for such period at
the interest rate which such Lender would bid were it to bid,
at the commencement of such period, for deposits of a
comparable amount, in the same currency and for the same period
from other banks in the Eurocurrency market. A certificate of any
Lender setting forth any
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amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Company and
the applicable Borrower and shall be conclusive absent manifest
error. The Company shall pay or shall cause the applicable
Borrower to pay such Lender the amount shown as due on any
such certificate within 10 days after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on
account of any obligation of any Borrower hereunder or under any
other Loan Document shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that
if any Borrower shall be required to deduct any Indemnified Taxes
or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums
payable under this Section 2.16) the Administrative Agent, a
Lender or the Issuing Bank (as the case may be) receives an amount
equal to the sum it would have received had no such deductions
been made, (ii) such Borrower shall make such deductions and
(iii) such Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable
law.
(b) In addition, the Borrowers shall pay any Other Taxes
to the relevant Governmental Authority in accordance with
applicable law.
(c) The applicable Borrower shall indemnify the
Administrative Agent, each Lender and the Issuing Bank, within
10 days after written demand therefor, for the full amount of
any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case
may be, on or with respect to any payment by or on account of any
obligation of such Borrower hereunder (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section 2.16) and any penalties,
interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other
Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Company by a Lender
or the Issuing Bank, or by the Administrative Agent on its own
behalf or on behalf of a Lender or the Issuing Bank, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by any Borrower to a Governmental Authority,
any Borrower shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the
return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the
Relevant Jurisdiction or any treaty to which such Relevant
Jurisdiction is a party, with respect to payments under this
Agreement shall, assuming reasonable prior written
notification by the applicable Borrower to such Foreign
Lender of the existence of such law or treaty, deliver to the
Company and the applicable Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by
applicable law, such properly completed
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and executed documentation prescribed by applicable law or
reasonably requested by the Company as will permit such payments
to be made without withh olding or at a reduced rate of
withholding.
(f) If a Lender, the Issuing Bank or the Administrative
Agent receives a refund from a taxing authority in respect of
any Indemnified Taxes or Other Taxes for which it has been
indemnified by a Borrower, or with respect to which any Borrower
has paid additional amounts pursuant to this Section 2.16, it
shall within 10 days from the date of such receipt pay over the
amount of such refund to the applicable Borrower (but only to the
extent of indemnity payments made, or additional amounts paid,
by the applicable Borrower under this Section 2.16 with respect
to the Indemnified Taxes or Other Taxes giving rise to such
refund), net of all reasonable out-of-pocket expenses of such
Lender, the Issuing Bank or the Administrative Agent and
without interest (other than interest paid by the relevant
taxing authority with respect to such refund); provided,
however, that each Borrower upon the request of such Lender,
the Issuing Bank or the Administrative Agent agrees to repay the
amount paid over to such Borrower (plus penalties, interest or
other charges) to such Lender, the Issuing Bank or the
Administrative Agent in the event such Lender, the Issuing Bank
or the Administrative Agent is required to repay such refund to
such taxing authority.
(g) Nothing contained in this Section 2.16 shall require
any Lender, the Issuing Bank or Administrative Agent to make
available its tax returns or any other information relating to
Taxes or Other Taxes that such Lender, the Issuing Bank or
Administrative Agent deems to be confidential; provided,
however, that any Taxes or Other Taxes shall, to the extent
resulting from such Lender's, the Issuing Bank's or the
Administrative Agent's failure to make available any such tax
returns, be deemed to be Excluded Taxes.
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs. (a) Each Borrower shall make each payment
required to be made by it hereunder (whether of principal,
interest, fees or reimbursement of LC Disbursements, or of
amounts payable under Section 2.14, 2.15 or 2.16, or
otherwise) from a payment location in the United States (or such
other payment location hereafter specified by such Borrower)
prior to 12:00 noon, New York City time (or 12:00 noon, London
time, in respect of principal of or interest on any Loan
denominated in an Alternative Currency), on the date when due,
in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date
may, in the discretion of the Administrative Agent, be deemed
to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at
270 Park Avenue, New York, New York (or, in the case of any
amounts due in any Alternative Currency, to the
Administrative Agent at its offices at Trinity Tower, 9 Thomas
Moore Street, London, England E19YT or at such other office as
shall be specified for such Alternative Currency by the
Administrative Agent), except payments to be made directly to
the Issuing Bank or Swingline Lender as expressly provided
herein and except that payments pursuant to Sections 2.14, 2.15,
2.16 and 10.03 shall be made directly to the Persons entitled
thereto. The Administrative Agent shall distribute any such
payments received by it for the account of any other Person to
the appropriate recipient promptly following receipt thereof. If
any payment hereunder shall be due on a day that is not a Business
Day, the date for payment
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shall be extended to the next succeeding Business Day, and, in
the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension at the same
rate then in effect with respect thereto. All payments of
principal and interest (but not fees, which shall be payable in
dollars) hereunder shall be made in the applicable Committed
Currency, except as otherwise expressly provided herein.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts
of principal, unreimbursed LC Disbursements, interest and fees
then due hereunder, such funds shall be applied (i) first,
towards payment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with
the amounts of interest and fees then due to such parties, and
(ii) second, towards payment of principal and unreimbursed LC
Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off
or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Revolving Loans or
participations in LC Disbursements or Swingline Loans resulting in
such Lender receiving payment of a greater proportion (based on
the Revolving Credit Exposures of such Lender as a percentage
of the aggregate Revolving Credit Exposures of all Lenders)
of the aggregate amount of its Revolving Loans and
participations in LC Disbursements and Swingline Loans and
accrued interest thereon than the proportion (based on the
Revolving Credit Exposures of such other Lender as a percentage
of the aggregate Revolving Credit Exposures of all Lenders)
received by any other Lender, then the Lender receiving
such greater proportion shall purchase (for cash at face
value) participations in the Revolving Loans and participations in
LC Disbursements and Swingline Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall
be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their
respective Revolving Loans and participations in LC
Disbursements and Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of
the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to
apply to any payment made by any Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other
than to the Borrower or any subsidiary or Affiliate thereof (as
to which the provisions of this paragraph shall apply). Each
Borrower consents to the foregoing and agrees, to the extent it
may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements
may exercise against such Borrower rights of set-off and
counterclaim with respect to such participation as fully as if
such Lender were a direct creditor of such Borrower in the amount
of such participation.
(d) Unless the Administrative Agent shall have received
notice from the Company or applicable Borrower prior to the date
on which any payment is due to the
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Administrative Agent for the account of the Lenders or the
Issuing Bank hereunder that such Borrower will not make such
payment, the Administrative Agent may assume that such
Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to
the Lenders or the Issuing Bank, as the case may be, the amount
due. In such event, if such Borrower has not in fact made such
payment, then each of the Lenders or the Issuing Bank, as the
case may be, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from
and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, (i)
in the case of a Borrowing or an LC Disbursement in
dollars, at the Federal Funds Effective Rate and (ii) in the
case of a Borrowing or an LC Disbursement in an Alternative
Currency, at the rate reasonably determined by the
Administrative Agent to be the cost to it of funding such amount.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.04(c), 2.05(d) or (e),
2.06(b) or 2.17(d), then the Administrative Agent may, in
its discretion (notwithstanding any contrary provision
hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy
such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of
Lenders. (a) If any Lender requests compensation under Section
2.14, or if any Borrower is required to pay any additional amount
to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.16, then such Lender shall use
reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender,
such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may
be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Company hereby agrees to pay
all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section
2.14, or if any Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.16, or if any Lender
defaults in its obligation to fund Loans hereunder, or if any
Multicurrency Lender does not approve any Currency as an
Alternative Currency, then the Company may, at its sole expense
and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions
contained in Section 10.04), all its interests, rights and
obligations under this Agreement to an assignee that shall
assume such obligations (which assignee may be another Lender, if
a Lender accepts such assignment); provided that (i) the Company
shall have received the prior written consent of the
Administrative Agent (and, if a Commitment is being assigned,
the Issuing Bank and Swingline Lender), which consent shall not
unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its
Loans and participations in LC Disbursements and Swingline Loans,
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accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the
Company (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation
under Section 2.14 or payments required to be made pursuant to
Section 2.16, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make
any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the
circumstances entitling the Company to require such assignment
and delegation cease to apply.
SECTION 2.19. Borrowing Subsidiaries. On or after the
Effective Date, the Company may designate any Wholly-Owned
Subsidiary as a Borrowing Subsidiary by delivery to the
Administrative Agent of a Borrowing Subsidiary Agreement
executed by such Subsidiary and the Company, and upon such
delivery such Subsidiary shall for all purposes of this
Agreement be a Borrowing Subsidiary and a party to this
Agreement. The Company may cause any Borrowing Subsidiary to cease
to be a party to this Agreement by executing and delivering
to the Administrative Agent a Borrowing Subsidiary Termination
with respect to such Subsidiary, whereupon such Subsidiary shall
cease to be a Borrowing Subsidiary and a party to this
Agreement. Notwithstanding the foregoing, no Borrowing
Subsidiary Termination will become effective as to any Borrowing
Subsidiary at a time when any principal of or interest on any
Loan made directly to such Borrowing Subsidiary shall be
outstanding hereunder; provided that such Borrowing
Subsidiary Termination shall be effective to terminate such
Borrowing Subsidiary's right to make further Borrowings under
this Agreement. As soon as practicable upon receipt of a
Borrowing Subsidiary Agreement, the Administrative Agent shall
send a copy thereof to each Lender.
ARTICLE III
Representations and Warranties
Each Borrower (as to itself and its subsidiaries)
represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the
Company and the Subsidiaries is duly organized, validly
existing and in good standing under the laws of the jurisdiction
of its organization, has all requisite power and authority
to own or lease its property and to carry on its business as
now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified
to do business in, and is in good standing in, every
jurisdiction where such qualification is required. Schedule 3.01
sets forth the correct and complete list of each Subsidiary
indicating (a) its jurisdiction of organization, (b) its
ownership (by holder and percentage interest), (c) its business
and primary geographic scope of operation and (d) whether
such Subsidiary is a Significant Subsidiary.
SECTION 3.02. Authorization; Enforceability. The Transactions
to be entered into by each Loan Party are within such Loan Party's
corporate, partnership or limited liability
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company powers and have been duly authorized by all
necessary corporate, partnership or limited liability company
and, if required, stockholder, partner or member action. Each
Loan Document to which any Loan Party is a party has been duly
executed and delivered by such Loan Party and constitutes a
legal, valid and binding obligation of such Loan Party,
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a
proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require the Company or any Subsidiary
to obtain or make any consent or approval of, registration or
filing with, or other action by, any Governmental Authority,
except such as have been obtained or made and are in full force
and effect or that could not reasonably be expected,
individually or in the aggregate, to result in a Material
Adverse Effect, (b) will not violate any law or regulation
applicable to the Company or any Subsidiary, or the charter,
by-laws or other organizational documents of the Company or any
Subsidiary, or any order of any Governmental Authority
applicable to the Company or any Subsidiary, except as to any
law, regulation or order the violation of which could not
reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect, (c) will not violate or
result in a default under any indenture, agreement or other
instrument binding upon the Company or any Subsidiary or their
respective assets, or give rise to a right thereunder to
require any payment to be made by the Company or any of its
Subsidiaries, except for any such violations, defaults or rights
to require payment that could not reasonably be expected,
individually or in the aggregate, to result in a Material
Adverse Effect, and (d) will not result in the creation or
imposition of any Lien on any asset of the Company or any of its
Subsidiaries. No exchange control law or regulation materially
restricts any Borrower from complying with its obligations in
respect of any Loan or Letter of Credit denominated in a
Committed Currency.
SECTION 3.04. Financial Condition; No Material Adverse
Change. (a) The Company has heretofore furnished to the
Lenders the consolidated and consolidating balance sheets of
the Company and its consolidated Subsidiaries and the related
statements of income, stockholders equity and cash flows (i) as
of and for the fiscal years ended October 31, 1995, October
31, 1996 and November 2, 1997, such consolidated financial
statements being reported on by Deloitte & Touche LLP,
independent public accountants, and (ii) as of and for the
fiscal quarter and the portion of the fiscal year ended
August 2, 1998, certified by its chief financial officer. Such
financial statements present fairly, in all material respects,
the financial condition and results of operations and cash
flows of the Company and its consolidated Subsidiaries as of such
dates and for such periods in accordance with GAAP, subject to
year-end audit adjustments and the absence of footnotes in the
case of the statements referred to in clause (ii) above.
(b) Since August 2, 1998, there has been no material adverse
change in the business, assets, operations, prospects or
condition, financial or otherwise, of the Company and the
Subsidiaries, taken as a whole.
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SECTION 3.05. Properties. (a) Each of the Company and the
Subsidiaries has good title to, or valid leasehold interests
in, all its real and personal property material to its
business reflected in the financial statements described in
Section 3.04, except for minor defects in title that do not
materially interfere with its ability to conduct its business
as currently conducted or to utilize such properties for their
intended purposes.
(b) Each of the Company and the Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, service marks,
copyrights, patents and other intellectual property material
to its business, the use thereof by the Company and the
Subsidiaries does not infringe upon the rights of any other
Person, except any such infringements that could not
reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect, and, to the knowledge of any
Borrower, no other Person has materially infringed upon the
rights of the Company and the Subsidiaries thereto.
SECTION 3.06. Litigation and Environmental Matters. (a)
There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to
the knowledge of any Borrower, threatened in writing against or
affecting the Company or any Subsidiary (i) as to which there
is a reasonable possibility of an adverse determination and
that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse
Effect (other than the Disclosed Matters) or (ii) that involve
this Agreement, any other Loan Document or the Transactions.
(b) Except for the Disclosed Matters and except with
respect to any other matters that, individually or in the
aggregate, could not reasonably be expected to result in a
Material Adverse Effect, neither the Company nor any Subsidiary
(i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii)
has become subject to any Environmental Liability, (iii) has
received notice of any claim with respect to any Environmental
Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no
change in the status of the Disclosed Matters that, individually
or in the aggregate, has resulted in, or materially increased
the likelihood of, a Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of
the Company and the Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable
to it or its property and all indentures, agreements and other
instruments binding upon it or its property, except where the
failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
Neither the Company nor any Subsidiary is in default with
respect to any such law, regulation, order, indenture,
agreement or other instrument, except for any such default
that individually or in the aggregate could not reasonably be
expected to have a Material Adverse Effect.
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SECTION 3.08. Investment and Holding Company Status.
Neither the Company nor any Subsidiary is (a) an "investment
company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as
defined in, or subject to regula tion under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Company and the
Subsidiaries has timely filed or caused to be filed all Tax
returns and reports required to have been filed and has paid or
caused to be paid all Taxes required to have been paid by it,
except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Company or such
Subsidiary, as applicable, has set aside on its books adequate
reserves in conformity with GAAP or (b) to the extent that the
failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with
all other ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a
Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions
used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than
$1,000,000, the fair market value of the assets of such Plan,
and the present value of all accumulated benefit obligations of
all underfunded Plans (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did
not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $1,000,000, the
fair market value of the assets of all such underfunded Plans.
SECTION 3.11. Disclosure. The Company has disclosed to
the Lenders all agreements, instruments and corporate or other
restrictions to which it or any of its Subsidiaries is subject,
and all other matters known to it, that, individually or in
the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither the Information Memorandum nor
any of the other reports, financial statements, certificates or
other information furnished by or on behalf of the Company to the
Administrative Agent or any Lender in connection with the
negotiation of the Loan Documents or delivered thereunder (as
modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state
any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided that, with respect to projected
financial information, the Company represents only that such
information was prepared in good faith based upon assumptions
believed to be reasonable at the time.
SECTION 3.12. Federal Reserve Regulations. (a) Neither the
Company nor any Subsidiary is engaged principally, or as one of
its important activities, in the business of extending credit for
the purposes of buying or carrying Margin Stock (as defined under
Regulation U).
(b) No part of the proceeds of any Loan, and no Letter of
Credit, will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, for any
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purpose that entails a violation of, or that is
inconsistent with, the provisions of the Regulations of the
Board, including Regulation T, U or X.
SECTION 3.13. Senior Indebtedness. The obligations of the
Company hereunder and under the other Loan Documents constitute
"Senior Indebtedness" under and as defined in the Subordinated
Note Indenture.
SECTION 3.14. Solvency. Immediately after the
consummation of the Transactions (a) the fair value of the
assets of each Borrower and each Loan Party that is a Significant
Subsidiary at a fair valuation will exceed its debts and
liabilities, subordinated, contingent or otherwise; (b) the
present fair saleable value of the property of each Borrower
and each Loan Party that is a Significant Subsidiary will be
greater than the amount that will be required to pay the probable
liability of its debts and other liabilities, subordinated,
contingent or otherwise, as such debts and other liabilities
become absolute and matured, considering all financing
alternatives and potential asset sales reasonably available to
such Borrower or Loan Party; (c) each Borrower and each Loan Party
that is a Significant Subsidiary will be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured,
considering all financing alternatives and potential asset sales
reasonably available to such Borrower; and (d) each Borrower
and each Loan Party that is a Significant Subsidiary will not
have unreasonably small capital with which to conduct the
business in which it is engaged as such business is now
conducted and is proposed to be conducted following the
Effective Date.
SECTION 3.15. Year 2000. Any reprogramming required to
permit the proper functioning, in and following the year 2000,
of (a) computer systems of the Company and the Subsidiaries and
(b) equipment containing embedded microchips (including
systems and equipment supplied by others or with which the
Company's and the Subsidiaries' systems interface) and the testing
of all such systems and equipment, as so reprogrammed, will be
completed, and all such systems and equipment shall be year
2000 compliant, by August 1, 1999. The cost to the Company
and its Subsidiaries of such reprogramming and testing and of
the reasonably foreseeable consequences of year 2000 to the
Company and the Subsidiaries (including, without limitation,
reprogramming errors and the failure of others' systems or
equipment) will not result in a Default or a Material Adverse
Effect. Except for such of the reprogramming referred to in the
preceding sentence as may be necessary, the computer and
management information systems of the Company and the
Subsidiaries are and, with ordinary course upgrading and
maintenance, will continue for the term of this Agreement to be,
sufficient to permit the Company and the Subsidiaries to
conduct its business without Material Adverse Effect.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders
to make Loans and of the Issuing Bank to issue Letters of Credit
hereunder shall not become effective until the date
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on which each of the following conditions is satisfied (or waived
in accordance with Section 10.02):
(a) The Administrative Agent and the Documentation Agent (or
their counsel) shall have received from each party hereto
either (i) a counterpart of this Agreement signed on behalf of
such party or (ii) written evidence reasonably satisfactory to
the Administrative Agent and the Documentation Agent (which may
include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this
Agreement.
(b) The Administrative Agent and the Documentation Agent (or
their counsel) shall have received from each of the Guarantors
either (i) a counterpart of the Guarantee Agreement signed on
behalf of such party or (ii) written evidence reasonably
satisfactory to the Administrative Agent and the Documentation
Agent (which may include telecopy transmission of a signed
signature page of the Guarantee Agreement) that such party has
signed a counterpart of the Guarantee Agreement.
(c) The Administrative Agent and the Documentation Agent (or
their counsel) shall have received from each of the Company
and the Subsidiaries, as applicable, either (i) a counterpart
of each Security Document signed on behalf of such party or
(ii) written evidence reasonably satisfactory to the
Administrative Agent and the Documentation Agent (which may
include telecopy transmission of a signed signature page of
such Security Document) that such party has signed a counterpart
of such Security Document. The Administrative Agent shall have
received stock certificates representing 65% of the outstanding
voting Capital Stock of each of the Foreign Subsidiaries
subject to a Pledge Agreement together with undated stock
powers executed in blank. The Administrative Agent for its
benefit and the ratable benefit of the Lenders shall have a
legal, valid and enforceable perfected first-priority Lien on
the Collateral.
(d) The Administrative Agent and the Documentation
Agent shall have received favorable written opinions (addressed
to the Administrative Agent and the Lenders and dated the
Effective Date) of Thelen, Reid & Priest LLP, Jeffrey P. Moonan,
Esq. and local Texas counsel, counsel for the Loan Parties,
substantially in the form of Exhibit B-1, Exhibit B-2 and
Exhibit B-3, respectively, and covering such other matters
relating to the Loan Parties, this Agreement or the Transactions
as the Required Lenders shall reasonably request. The Borrowers
hereby request such counsel to deliver such opinions.
(e) The Administrative Agent and the Documentation
Agent shall have received such documents and certificates as
the Administrative Agent, the Documentation Agent or their
counsel may reasonably request relating to the organization,
existence and good standing of the Loan Parties, the authorization
of the Transactions and any other legal matters relating to the
Loan Parties, the Loan Documents or the Transactions, all in
form and substance reasonably satisfactory to the Administrative
Agent, the Documentation Agent and their counsel.
(f) Concurrently with the first Borrowing, the Company
shall have repaid, or made adequate provision to repay, in
full the principal of all loans outstanding, interest thereon
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and other amounts due and payable under the Existing Credit
Agreement and the Administrative Agent shall have received duly
executed documentation in form and substance reasonably
satisfactory thereto either evidencing or necessary for (i)
the termination of the Existing Credit Agreement, (ii) the
cancellation of all commitments thereunder and (iii) the release
of all Liens granted by the Company or any Subsidiary in
connection therewith.
(g) The Administrative Agent and the Documentation
Agent shall have received a certificate, dated the Effective
Date and signed by the President, a Vice President or a Financial
Officer of the Company, confirming compliance with the conditions
set forth in paragraphs (a) and (b) of Section 4.02.
(h) The Administrative Agent and the Documentation
Agent shall have received all fees and other amounts due and
payable on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket
expenses required to be reimbursed or paid by the Company
hereunder.
(i) All consents and approvals necessary to be
obtained from any Governmental Authority (including, without
limitation, to the extent required by applicable law, prior to
any Borrowing or issuance of any Letter of Credit in Singapore
dollars, the approval of the Monetary Authority of Singapore) or
other Person in connection with the financing contemplated
hereby and the continuing operation of the Company and the
Subsidiaries shall have been obtained and be in full force and
effect, and all applicable waiting periods and appeal periods
shall have expired, in each case without the imposition of
any burdensome conditions.
The Administrative Agent shall notify the Company and the
Lenders of the Effective Date, and such notice shall be conclusive
and binding. Notwithstanding the foregoing, the obligations of
the Lenders to make Loans and of the Issuing Bank to issue Letters
of Credit hereunder shall not become effective unless each of the
foregoing conditions is satisfied (or waived pursuant to Section
10.02) at or prior to 3:00 p.m., New York City time, on November
19, 1998 (and, in the event such conditions are not so satisfied
or waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each
Lender to make a Loan on the occasion of any Borrowing, and of
the Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is subject to the satisfaction of the following
conditions:
(a) The representations and warranties set forth in this
Agreement and the other Loan Documents shall be true and
correct on and as of the date of such Borrowing or the date of
issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, except that any representation or
warranty limited by its terms to a specific date shall be true
and correct as of such specific date.
(b) At the time of and immediately after giving effect to
such Borrowing or the issuance, amendment, renewal or
extension of such Letter of Credit, as applicable, no Default
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shall have occurred and be continuing and there are no laws,
rules, regulations or orders that would cause the making or
maintaining of such Loan or such Letter of Credit to be unlawful
or otherwise unenforceable.
Each Borrowing and each issuance, amendment, renewal or extension
of a Letter of Credit shall be deemed to constitute a
representation and warranty by the Company and the applicable
Borrower on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section 4.02.
SECTION 4.03. Each Borrowing Subsidiary Credit Event. The
obligation of each Lender to make Loans hereunder to any
Borrowing Subsidiary that becomes a party hereto after the
Effective Date is subject to the satisfaction of the following
additional conditions:
(a) The Administrative Agent (or its counsel) shall have
received from each party thereto either (i) a counterpart of such
Borrowing Subsidiary's Borrowing Subsidiary Agreement or (ii)
written evidence satisfactory to the Administrative Agent (which
may include telecopy transmission of a signed signature page
thereof) that such party has signed a counterpart of such
Borrowing Subsidiary Agreement.
(b) The Administrative Agent shall have received a
favorable written opinion of counsel for such Borrowing
Subsidiary (which counsel shall be reasonably acceptable to the
Administrative Agent), substantially in the form of Exhibit C, and
covering such other matters relating to such Borrowing Subsidiary
or its Borrowing Subsidiary Agreement as the Required Lenders
shall reasonably request.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its
counsel may reasonably request relating to the organization,
existence and good standing of such Borrowing Subsidiary, the
authorization of the Transactions relating to such Borrowing
Subsidiary and any other legal matters relating to such
Borrowing Subsidiary, its Borrowing Subsidiary Agreement and
such Transactions, all in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and
the principal of and interest on each Loan and all fees payable
hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements
shall have been reimbursed, the Company covenants and agrees with
the Lenders that:
SECTION 5.01. Financial Statements and Other Information.
The Company will furnish to the Administrative Agent and each
Lender:
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(a) within 90 days after the end of each fiscal year of the
Company, the audited consolidated and unaudited consolidating
(including by business segment) balance sheets of the Company
and its consolidated Subsidiaries and related statements of
operations, stockholders' equity and cash flows as of the end of
and for such year, setting forth in each case in comparative form
the figures as of the end of and for the previous fiscal year,
such consolidated financial statements being reported on by
Deloitte & Touche LLP or other independent public accountants of
recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that
such consolidated financial statements present fairly in all
material respects the financial condition and results of
operations of the Company and its consolidated Subsidiaries on
a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year of the Company, the unaudited
consolidated and consolidating (including by business segment)
balance sheets of the Company and its consolidated
Subsidiaries and related statements of operations and cash flows
as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case
in comparative form the figures for the corresponding date or
period or periods of (or, in the case of the balance sheet,
as of the end of) the previous fiscal year, all certified by one
of its Financial Officers as presenting fairly in all material
respects the financial condition and results of operations of
the Company and its consolidated Subsidiaries in accordance
with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial
Officer of the Company (i) certifying as to whether a Default has
occurred and, if a Default has occurred, specifying the details
thereof and any action taken or proposed to be taken with
respect thereto, (ii) setting forth reasonably detailed
calculations demonstrating compliance with Sections 6.13, 6.14,
6.15 and 6.16 and (iii) stating whether any change in GAAP or in
the application thereof has occurred since the date of the
audited financial statements referred to in Section 3.04 and, if
any such change has occurred, specifying the effect of such
change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements
under clause (a) above, a certificate of the accounting firm
that reported on such financial statements stating whether they
obtained knowledge during the course of their examination of
such financial statements of any Default (which certificate may
be limited to the extent required by accounting rules or
guidelines);
(e) concurrently with any delivery of financial statements
under clause (a), a narrative explanation signed by a Financial
Officer of the Company of any material variance from the
Company's budget for the fiscal year that is reflected in
such financial statements;
(f) within 30 days of the commencement of each fiscal year
of the Company, (i) projected consolidated and consolidating
balance sheets of the Company and its consolidated
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Subsidiaries for such fiscal year and (ii) an operating plan for
the Company and its consolidated Subsidiaries for such fiscal
year, including budget, personnel, facilities, capital
expenditure and research and development projections and
projected consolidated and consolidating (including by business
segment) income and cash flow statements for such fiscal year,
incorporating the items detailed in such operating plan for such
fiscal year, and accompanied by a description of the material
assumptions used in making such operating plan;
(g) promptly after the same become publicly available,
copies of all periodic and other reports, proxy statements,
registration statements and other materials filed by the
Company or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national
securities exchange, or distributed by the Company to its
shareholders generally, as the case may be; and
(h) promptly following any request therefor, such
other information regarding the operations, business, affairs
and financial condition of the Company or any Subsidiary, or
compliance with the terms of this Agreement, as the
Administrative Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. The Company will
furnish to the Administrative Agent and each Lender prompt written
notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Company or any Affiliate thereof that,
if adversely determined, could reasonably be expected to result
in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or
together with any other ERISA Events that have occurred, could
reasonably be expected to result in liability of the Company and
the Subsidiaries in an aggregate amount exceeding $1,000,000;
and
(d) any other development that results in, or could
reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by
a statement of a Financial Officer or other executive officer of
the Company setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken
with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Company
will, and will cause each of the Subsidiaries to, do or cause to
be done all things necessary to preserve, renew and keep in full
force and effect its legal existence and the rights, licenses,
permits, privileges and
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franchises material to the conduct of its business; provided that
the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 6.03.
SECTION 5.04. Payment of Obligations. The Company will, and
will cause each of the Subsidiaries to, pay its obligations,
including Tax liabilities, that, if not paid, could result in a
Material Adverse Effect before the same shall become delinquent
or in default, except where (a) the validity or amount thereof
is being contested in good faith by appropriate proceedings,
(b) the Company or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP
and (c) the failure to make payment pending such contest could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The
Company will, and will cause each of the Subsidiaries to, (a)
keep and maintain all property material to the conduct of its
business in good working order and condition, ordinary wear and
tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and
against such risks as are customarily maintained by companies
engaged in the same or similar businesses operating in the same
or similar locations.
SECTION 5.06. Books and Records; Inspection Rights. The
Company will, and will cause each of the Subsidiaries to, keep
proper books of record and account in which full, true and
correct entries are made of all dealings and transactions
in relation to its business and activities; provided that, with
respect to each of the Foreign Subsidiaries, such entries
may be made in accordance with generally accepted accounting
principles in effect in its jurisdiction of organization until
such time that such entries are consolidated with the entries of
the Company and the Domestic Subsidiaries. The Company will, and
will cause each of the Subsidiaries to, permit any
representatives designated by the Administrative Agent or any
Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with
its officers and independent accountants, all at such reasonable
times and as often as reasonably requested.
SECTION 5.07. Compliance with Laws. The Company will, and
will cause each of the Subsidiaries to, comply with all laws,
rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do
so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds and Letters of Credit. The
proceeds of the Loans will be used only for general corporate
purposes (including working capital, capital expenditures
and acquisitions). The proceeds of Loans denominated in
Singapore dollars will be used only for economic activities in
Singapore or for hedging the Singapore dollar exchange rate and
interest rate risks arising from the economic activities. No part
of the proceeds of any Loan, and no Letter of Credit, will be
used, whether directly or indirectly, for any purpose that
entails a violation of any of the Regulations of the Board,
including Regulations T, U and X. Letters of Credit will be
issued only to support obligations of the Company incurred in the
ordinary course of business.
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SECTION 5.09. Additional Guarantors. (a) Promptly upon
any Domestic Subsidiary becoming a Significant Subsidiary or a
Borrowing Subsidiary, the Company will (i) cause such Domestic
Subsidiary to guarantee the obligations under the Loan
Documents, pursuant to a Guarantee substantially in the form of
the Guarantee Agreement and (ii) deliver such proof of corporate,
partnership or limited liability company action, incumbency of
officers, opinions of counsel and other documents as is
consistent with those delivered by the Company pursuant to
Article IV or as the Administrative Agent shall have
reasonably requested.
(b) Promptly upon any Foreign Subsidiary becoming a
Significant Subsidiary, the Company will (i) cause 65% of the
voting Capital Stock of such Foreign Subsidiary to be pledged
and delivered to the Administrative Agent for its benefit and
the ratable benefit of the Lenders, pursuant to the Pledge
Agreement and (ii) deliver such proof of corporate,
partnership or limited liability company action, incumbency of
officers, opinions of counsel and other documents as is
consistent with those delivered by the Company pursuant to
Article IV or as the Administrative Agent shall have reasonably
requested.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable
hereunder have been paid in full and all Letters of Credit have
expired or terminated and all LC Disbursements shall have been
reimbursed, the Company covenants and agrees with the Lenders
that:
SECTION 6.01. Indebtedness. The Company will not, and will
not permit any Subsidiary to, create, incur, assume or permit
to exist any Indebtedness, except:
(a) Indebtedness created hereunder;
(b) Indebtedness existing on the date hereof and set
forth in Schedule 6.01, and, subject to Section 6.06(b)(iv),
any extensions, renewals or replacements of any such
Indebtedness, provided that the principal amount does not
increase;
(c) Indebtedness of the Company to any Wholly-Owned
Subsidiary or of any Wholly-Owned Subsidiary to the Company or any
other Wholly-Owned Subsidiary, in each case incurred in the
ordinary course of business and either consistent with past
practices or for cash management purposes; provided that, upon
request of the Required Lenders, such Indebtedness shall be
evidenced by a promissory note in form and substance reasonably
acceptable to the Required Lenders;
(d) Indebtedness of the Company or any Subsidiary incurred
to finance the acquisition, construction or improvement of any
fixed or capital assets, including Capital Lease Obligations
and obligations under Synthetic Leases, and any Indebtedness
assumed in connection
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with the acquisition of any such assets or secured by a Lien on
any such assets prior to the acquisition thereof, and extensions,
renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof; provided
that (i) such Indebtedness is incurred prior to or within 90 days
after such acquisition or the completion of such
construction or improvement and (ii) the aggregate principal
amount of Indebtedness permitted by this clause (d) shall not
exceed $10,000,000 at any time outstanding; and (e) Indebtedness
of the Company or any Subsidiary as an account party in respect
of trade letters of credit.
SECTION 6.02. Liens. The Company will not, and will
not permit any Subsidiary to, create, incur, assume or permit to
exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues
(including accounts receivable) or rights in respect of any
thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Company or
any Subsidiary existing on the date hereof and set forth in
Schedule 6.02; provided that (i) such Lien shall not apply to
any other property or asset of the Company or any Subsidiary
and (ii) such Lien shall secure only those obligations which
it secures on the date hereof;
(c) any Lien existing on any property or asset prior to
the acquisition thereof by the Company or any Subsidiary or
existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person
becomes a Subsidiary; provided that (i) such Lien secures
Indebtedness permitted by clause (d) of Section 6.01, (ii)
such Lien is not created in contemplation of or in connection
with such acquisition or such Person becoming a Subsidiary,
as the case may be, (iii) such Lien shall not apply to any other
property or assets of the Company or any Subsidiary, and (iv) such
Lien shall secure only those obligations which it secures on
the date of such acquisition or the date such Person becomes a
Subsidiary, as the case may be; and
(d) any Lien on fixed or capital assets acquired,
constructed or improved by the Company or any Subsidiary;
provided that (i) such Lien secures Indebtedness permitted
by clause (d) of Section 6.01, (ii) such Lien and the
Indebtedness secured thereby are incurred prior to or within 90
days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured
thereby does not exceed 100% of the direct costs and 80% of the
direct and indirect costs of acquiring, constructing or improving
such fixed or capital assets and (iv) such Lien shall not apply
to any other property or assets of the Company or any
Subsidiary.
SECTION 6.03. Fundamental Changes. (a) The Company will
not, and will not permit any Subsidiary to, merge into or
consolidate with any other Person, or permit any other Person to
merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series
of transactions) all or any substantial part of its assets, or
(whether now
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owned or hereafter acquired) or sell, transfer, lease or
otherwise dispose of any Capital Stock of any Subsidiary, or
liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have
occurred and be continuing (i) any Person may merge into the
Company in a transaction in which the Company is the surviving
corporation, (ii) any Person may merge into any Wholly-Owned
Subsidiary in a transaction in which the surviving entity is
a Wholly-Owned Subsidiary, (iii) any Subsidiary may sell,
transfer, lease or otherwise dispose of its assets to the
Company or to a Wholly-Owned Subsidiary; provided that, upon
request of the Required Lenders, any deferred purchase price
shall be evidenced by a promissory note in form and substance
reasonably acceptable to the Required Lenders, (iv) the Company or
any Subsidiary may sell, transfer, lease or otherwise dispose of
its assets to the extent permitted by Section 6.07(c) and (v)
any Subsidiary other than a Borrowing Subsidiary may liquidate
or dissolve if the Company determines in good faith that such
liquidation or dissolution is in the best interests of the
Company and is not materially disadvantageous to the Lenders;
provided that any such merger involving a Person that is not a
Wholly-Owned Subsidiary immediately prior to such merger shall
not be permitted unless also permitted by Section 6.04.
(b) The Company will not, and will not permit any Subsidiary
to, engage to any material extent in any business other than
businesses of the type conducted by the Company and the
Subsidiaries on the date of execution of this Agreement and
businesses reasonably related thereto.
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. The Company will not, and will not permit any
Subsidiary to, purchase, hold or acquire (including pursuant
to any merger with any Person that was not a Wholly-Owned
Subsidiary prior to such merger) any Capital Stock, evidences of
indebtedness or other securities (including any option, warrant
or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or
any other interest in, any other Person, or purchase or otherwise
acquire (in one transaction or a series of transactions) any
assets of any other Person constituting a business unit (or
material portion thereof), except:
(a) Permitted Investments;
(b) with respect to any Foreign Subsidiary, direct
obligations of, or obligations the principal of and interest
on which are unconditionally guaranteed by, the government of
the country in which such Foreign Subsidiary is organized or has
its principal place of business, in each case maturing within
one year from the date of acquisition thereof, so long as the
aggregate amount of all such obligations for all Foreign
Subsidiaries does not exceed $5,000,000 in the aggregate at any
time outstanding;
(c) loans, advances or investments existing on the date
hereof by the Company and the Subsidiaries to or in their
respective subsidiaries;
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(d) loans or advances made after the Effective Date by the
Company to any Wholly-Owned Subsidiary or by any Wholly-Owned
Subsidiary to the Company or any other Wholly-Owned Subsidiary;
provided that, upon request of the Required Lenders, such
loans or advances shall be evidenced by a promissory note in form
and substance reasonably acceptable to the Required Lenders;
(e) Guarantees constituting Indebtedness permitted by
Section 6.01 and Guarantees by the Company of rental
obligations or accounts payable of any Subsidiary;
(f) investments received in connection with the
bankruptcy or reorganization of, or settlement of delinquent
accounts and disputes with, customers and suppliers, in each case
in the ordinary course of business;
(g) investments made in connection with a sale of assets
permitted by Section 6.07 to the extent of the non-cash
consideration received by the Company or a Subsidiary;
(h) Permitted Business Acquisitions so long as (i)
the aggregate consideration paid by the Company and the
Subsidiaries in respect of any such Permitted Business
Acquisition does not exceed (A) in the case of acquisitions of
Domestic Subsidiaries or assets in the United States, $50,000,000,
and (B) in the case of acquisitions of Foreign Subsidiaries or
assets outside of the United States, $30,000,000, and (ii) the
aggregate cash and non-cash consideration (including the
concurrent repayment or assumption of any indebtedness) paid by
the Company and the Subsidiaries in respect of such
Permitted Business Acquisition and all prior Permitted Business
Acquisitions during the same fiscal quarter of the Company and the
prior three fiscal quarters of the Company does not exceed
$100,000,000;
(i) investments by the Company or any Subsidiary
existing on the date hereof and set forth in Schedule 6.04;
(j) investments by the Company or any Subsidiary after the
Effective Date in Joint Ventures that do not exceed $20,000,000
in the aggregate at any time outstanding; and
(k) investments in addition to those permitted by (a)
through (j) by the Company or any Subsidiary (including
investments made to meet minimum capital requirements of foreign
jurisdictions) that do not exceed $5,000,000 in the aggregate
for the Company and all Subsidiaries at any time outstanding.
SECTION 6.05. Hedging Agreements. The Company will not, and
will not permit any Subsidiary to, enter into any Hedging
Agreement, other than Hedging Agreements entered into in the
ordinary course of business to hedge or mitigate risks to which
the Company or any Subsidiary is exposed in the conduct of its
business or the management of its liabilities.
SECTION 6.06. Restricted Payments; Certain Payments of
Indebtedness. (a) The Company will not, and will not permit any
Subsidiary to, declare or make, or agree to pay or
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make, directly or indirectly, any Restricted Payment, except (i)
the Company may declare and pay dividends with respect to its
Capital Stock payable solely in additional shares of its
Capital Stock, (ii) Subsidiaries may declare and pay cash
dividends to the Company or any Wholly-Owned Subsidiary with
respect to its Capital Stock and Wholly-Owned Subsidiaries may
redeem for cash shares of Capital Stock held by the Company or
any other Wholly-Owned Subsidiary, (iii) the Company may make
Restricted Payments, not exceeding $1,000,000 during any fiscal
year, pursuant to and in accordance with stock option plans or
other benefit plans for management or employees of the Company
and its Subsidiaries, and (iv) so long as at the time thereof
and immediately after giving effect thereto no Default shall
have occurred and be continuing, the Company or any Subsidiary
may make Restricted Payments in an aggregate amount not to
exceed $10,000,000 for the Company and all Subsidiaries during
any fiscal year of the Company.
(b) The Company will not, and will not permit any
Subsidiary to, make or agree to pay or make, directly or
indirectly, any payment or other distribution (whether in cash,
securities or other property) of or in respect of principal of or
interest on any Indebtedness, or any payment or other
distribution (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition,
cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal
payments as and when due in respect of any Indebtedness (subject
to any subordination provisions thereof);
(iii) prepayment at the consummation of a Permitted Business
Acquisition of Indebtedness assumed in connection with such
Permitted Business Acquisition;
(iv) prepayment, purchase, redemption, retirement or other
acquisition of the Subordinated Notes by exchange for or,
within 90 days of such issuance or incurrence, out of the
proceeds received from a substantially concurrent issue of new
shares of its non-mandatorily redeemable Capital Stock or
from a substantially concurrent incurrence of Consolidated
Subordinated Indebtedness (including mandatorily redeemable
Capital Stock);
(v) so long as at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be
continuing, prepayment, purchase, redemption, retirement or other
acquisition in cash of the Subordinated Notes in an amount not to
exceed $1,000,000 in the aggregate for the period commencing on
the date hereof and ending on the date that the Commitments are
terminated and no Revolving Credit Exposure is outstanding; and
(vi) payment of secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets
securing such Indebtedness.
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SECTION 6.07. Disposition of Assets. The Company will
not, and will not permit any Subsidiary to, sell, transfer,
lease or otherwise dispose of any asset, including any Capital
Stock, except:
(a) sales of inventory, used or surplus equipment and
Permitted Investments in the ordinary course of business;
(b) sales, transfers and dispositions permitted by Section
6.03; and
(c) sales, transfers and dispositions of assets (other than
Capital Stock of a Subsidiary) that are not permitted by any
other clause of this Section 6.07; provided that the
aggregate fair market value of all assets sold, transferred
or otherwise disposed of in reliance upon this clause (c) shall
not exceed $10,000,000 during any fiscal year of the Company;
provided that all sales, transfers, leases and other
dispositions permitted hereby shall be made for fair value.
SECTION 6.08. Transactions with Affiliates. The Company will
not, and will not permit any Subsidiary to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease
or otherwise acquire any property or assets from, or otherwise
engage in any other transactions with, any of its Affiliates,
except (a) transactions in the ordinary course of business and at
prices and on terms and conditions not less favorable to the
Company or such Subsidiary than could be obtained on an
arm's-length basis from unrelated third parties, (b) the possible
purchase of 45 Secor Road, Brookfield, Connecticut from
Constantine Macricostas or Affiliates controlled by him,
Indebtedness permitted by Sections 6.01(b) and 6.01(c),
investments permitted by Section 6.04 and fundamental changes
permitted by Section 6.03 so long as each such transaction is at a
price and on terms and conditions not less favorable to the
Company or such Subsidiary than could be obtained on an
arm's-length basis from unrelated third parties, (c)
transactions between or among the Company and the Guarantors not
involving any other Affiliate, (d) any Restricted Payment
permitted by Section 6.06, (e) transactions existing on the date
hereof and set forth in Schedule 6.08 and (f) any Affiliate who is
an individual may serve as a director, officer or employee of the
Company or such Subsidiary and receive compensation (including
stock options) for his or her services in such capacity.
SECTION 6.09. Restrictive Agreements. The Company will
not, and will not permit any Subsidiary to, directly or
indirectly, enter into, incur or permit to exist any agreement
or other arrangement (other than this Agreement) that
prohibits, restricts or imposes any condition upon (a) the
ability of the Company or any Subsidiary to create, incur or
permit to exist any Lien upon any of its property or assets, or
(b) the ability of any Subsidiary to pay dividends or other
distributions with respect to any shares of its Capital Stock
or to make or repay loans or advances to the Company or any
other Subsidiary or to Guarantee Indebtedness of the Company or
any other Subsidiary; provided that (i) the foregoing shall not
apply to restrictions and conditions imposed by law or by this
Agreement, (ii) the foregoing shall not apply to restrictions
and conditions existing on the date hereof identified on
Schedule 6.09 (but shall apply to any extension
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or renewal of, or any amendment or modification expanding the
scope of, any such restriction or condition), (iii) the
foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is to be sold and
such sale is permitted hereunder, (iv) the foregoing shall not
apply to restrictions or conditions imposed by any agreement
relating to secured Indebtedness permitted by Section 6.01(d) if
such restrictions or conditions apply only to the property or
assets securing such Indebtedness or the Subsidiary owning such
property or assets, (v) clause (a) of the foregoing shall not
apply to customary provisions in leases and other contracts
restricting the assignment thereof and (vi) clause (b) of
the foregoing shall not apply to restrictions or conditions
imposed by the organizational documents of any Joint Venture
to the extent that an investment in such Joint Venture is
permitted by Section 6.04(j).
SECTION 6.10. Issuances of Capital Stock by Subsidiaries.
The Company will not permit any Subsidiary to issue any additional
shares of its Capital Stock or interest other than (a) to the
Company or a Wholly-Owned Subsidiary, (b) any such issuance
that does not change the Company's direct or indirect percentage
ownership interest in such Subsidiary and (c) any such
issuance that is permitted pursuant to Section 6.03 or 6.04.
SECTION 6.11. Amendment of Material Documents. The Company
will not, and will not permit any Subsidiary to, amend, modify or
waive (a) any of its rights under its certificate of
incorporation, by-laws or other organizational documents, in
each case in any respect adverse to the Lenders or (b) any of the
terms of any Consolidated Subordinated Indebtedness
(including, without limitation, the terms contained in the
Subordinated Note Indenture and the Subordinated Notes), in
each case in any respect adverse to the Lenders (for the purposes
of this Section 6.11(b) and without limitation of the scope
of the definition of "adverse", any amendment to increase the
principal amount, the interest rate or fees or other amounts
payable, to advance the dates upon which payments are made or to
alter any subordination provision (or any definition related
thereto) shall be deemed to be "adverse").
SECTION 6.12. Borrowing Subsidiaries. The Company will not
cease to own, directly or indirectly, and Control 100% (other
than directors' qualifying shares) of the ordinary voting power
of any Borrowing Subsidiary.
SECTION 6.13. Interest Coverage Ratio. The Company will
not permit the Interest Coverage Ratio as determined as of the
end of each fiscal quarter of the Company to be less than 4.00 to
1.00.
SECTION 6.14. Fixed Charge Coverage Ratio. The Company will
not permit the Fixed Charge Coverage Ratio as determined as of
the end of each fiscal quarter of the Company ending on or after
January 31, 2000 to be less than (a) if such fiscal quarter ends
on or after January 31, 2000 and before April 30, 2000, .75 to
1.00, (b) if such fiscal quarter ends on or after April 30, 2000
and before July 31, 2000, 1.00 to 1.00, (c) if such fiscal
quarter ends on or after July 31, 2000 and before October 31,
2000, 1.25 to 1.00 and (d) if such fiscal quarter ends on or
after October 31, 2000, 2.00 to 1.00.
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SECTION 6.15. Leverage Ratio. The Company will not
permit the Leverage Ratio as determined as of the end of each
fiscal quarter of the Company to be greater than 2.50 to 1.00.
SECTION 6.16. Capital Expenditure Ratio. The Company will
not permit the Capital Expenditure Ratio as determined as of the
end of each fiscal quarter of the Company to exceed 1.25 to 1.00.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall
occur:
(a) any Borrower shall fail to pay any principal of
any Loan or any reimbursement obligation in respect of any LC
Disbursement when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment
thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan
or any fee or any other amount (other than an amount referred
to in clause (a) of this Article) payable under this Agreement,
when and as the same shall become due and payable;
(c) any representation or warranty made or deemed made by
or on behalf of the Company or any Subsidiary in or in
connection with this Agreement or any amendment or
modification hereof or waiver hereunder, or in any report,
certificate, financial statement or other document furnished
pursuant to or in connection with this Agreement or any amendment
or modification hereof or waiver hereunder, shall prove to have
been incorrect in any material respect when made or deemed made or
furnished;
(d) the Company shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02,
5.03 (with respect to the Company's existence) or 5.08 or in
Article VI;
(e) the Company or any Subsidiary shall fail to observe
or perform any covenant, condition or agreement contained in
any Loan Document (other than those specified in clause (a),
(b) or (d) of this Article), and such failure shall continue
unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Company (which notice will be given
at the request of any Lender);
(f) the Company or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of
amount) in respect of any Material Indebtedness, when and as the
same shall become due and payable;
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(g) any event or condition occurs that results in any
Material Indebtedness becoming due prior to its scheduled
maturity or that enables or permits (after giving effect to any
grace period applicable thereto) the holder or holders of any
Material Indebtedness or any trustee or agent on its or their
behalf to cause any Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this
clause (g) shall not apply to secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of
the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Company or any
Subsidiary or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii)
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Subsidiary
or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the
foregoing shall be entered;
(i) the Company or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect, (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in clause (h) of this
Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or
similar official for the Company or any Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any
of the foregoing;
(j) the Company or any Subsidiary shall admit in writing
its inability or fail generally to pay its debts as they become
due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $3,000,000 individually or
$5,000,000 in the aggregate shall be rendered against the
Company, any Subsidiary or any combination thereof and the same
shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any
action shall be legally taken by a judgment creditor to attach
or levy upon any assets of the Company or any Subsidiary to
enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion
of the Required Lenders, when taken together with all other
ERISA Events that have occurred, could reasonably be expected
to result in liability of the Company and the Subsidiaries in an
aggregate amount exceeding $1,000,000;
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(m) (i) any Security Document shall for any reason (other
than the gross negligence or willful misconduct of the
Administrative Agent) cease to create in favor of the
Administrative Agent for its benefit and the ratable benefit of
the Lenders a legal, valid and enforceable perfected
first-priority Lien on the Collateral as security for the
obligations of the Loan Parties under the Loan Documents; or
(ii) any Loan Document executed by the Company or any Subsidiary
shall at any time after its execution and delivery and for any
reason cease to be in full force and effect or shall be declared
null and void, or the validity or enforceability thereof shall
be contested by any party thereto or any party thereto shall
deny in writing it has any further liability or obligation
thereunder or shall fail to perform its obligations thereunder;
(n) the Required Lenders shall have determined in good
faith (which determination shall be conclusive absent manifest
error) that a material adverse change has occurred in the
business, operations, properties, assets or condition (financial
or otherwise) of the enterprise comprised of the Company and
the Subsidiaries taken as a whole; or
(o) a Change in Control shall occur;
then, and in every such event (other than an event with
respect to any Borrower described in clause (h) or (i) of this
Article), and at any time thereafter during the continuance of
such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Company, take any or
all of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments
shall terminate immediately, (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may
thereafter be declared to be due and payable) and thereupon the
principal of the Loans so declared to be due and payable,
together with accrued interest thereon and all fees and other
obligations of the Borrowers accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by each
Borrower, and (iii) enforce its rights under the Guarantee
Agreement and each Security Document on behalf of the Lenders and
the Issuing Bank; and in case of any event with respect to
a Borrower described in clause (h) or (i) of this Article, the
Commitments shall automatically terminate and the principal
of the Loans then outstanding, together with accrued interest
thereon and all fees and other obligations of the Borrowers
accrued hereunder, shall automatically become due and payable,
without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by each Borrower.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably
appoints the Administrative Agent as its agent and authorizes
the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative
Agent by the terms hereof, together with such actions and powers
as are reasonably incidental thereto.
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The bank serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were
not the Administrative Agent, and such bank and its Affiliates
may accept deposits from, lend money to and generally engage in
any kind of business with the Company or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent
hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth in the Loan
Documents. Without limiting the generality of the foregoing, (a)
the Administrative Agent shall not be subject to any fiduciary
or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall
not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights
and powers expressly contemplated by the Loan Documents that
the Administrative Agent is required to exercise in writing by the
Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as
provided in Section 10.02), and (c) except as expressly set
forth in the Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Company
or any of its Subsidiaries that is communicated to or obtained by
the bank serving as Administrative Agent or any of its Affiliates
in any capacity. The Administrative Agent shall not be liable for
any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 10.02) or in the absence of
its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of
any Default unless and until written notice thereof is given to
the Administrative Agent by a Loan Party or a Lender, and the
Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document,
(ii) the contents of any certificate, report or other
document delivered thereunder or in connection therewith,
(iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in
any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other
agreement, instrument or document, or (v) the satisfaction of
any condition set forth in Article IV or elsewhere in any Loan
Document, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon,
and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document
or other writing believed by it to be genuine and to have been
signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person,
and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (who may be
counsel for the any Loan Party), independent accountants and
other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
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The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more
sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any
and all its duties and exercise its rights and powers through
their respective Related Parties. The exculpatory provisions
of the preceding paragraphs shall apply to any such sub-agent
and to the Related Parties of the Administrative Agent and any
such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the
Administrative Agent may resign at any time by notifying the
Lenders, the Issuing Bank and the Company and the
Administrative Agent may be removed at any time with or without
cause by the Required Lenders; provided that the other
Lenders, the Issuing Bank and the Company shall be promptly
notified thereof. Upon any such resignation or removal, the
Required Lenders shall have the right, in consultation with the
Company so long as no Default has occurred and is continuing,
to appoint a successor. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation or the Required Lenders'
removal of the Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lenders and the
Issuing Bank, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an
Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder.
The fees payable by the Company to a successor Administrative
Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Company and such
successor. After the Administrative Agent's resignation
hereunder, the provisions of this Article and Section 10.03
shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective
Related Parties in respect of any actions taken or omitted to
be taken by any of them while it was acting as Administrative
Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to
enter into this Agreement. Each Lender also acknowledges that
it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such
documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other
Loan Document or related agreement or any document furnished
hereunder or thereunder.
Subject to the foregoing provisions of this Article
VIII, the Administrative Agent shall, on behalf of the
Lenders, (i) execute each Security Document on behalf of the
Lenders, (ii) hold and apply the Collateral, and the proceeds
thereof, at any time received by it, in accordance with the
provisions of the Security Documents and this Agreement, (iii)
exercise any and all rights,
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powers and remedies of the Lenders under this Agreement or any
of the Security Documents, including the giving of any consent or
waiver or the entering into of any amendment, subject to the
provisions of Section 10.02, (iv) execute, deliver and file
financing statements, assignments and other such agreements,
and possess instruments on behalf of the Lenders and (v)
in the event of acceleration of the obligations of the
Borrowers hereunder, exercise the rights of the Lenders under
the Security Documents upon and at the direction of the
Required Lenders.
Each party hereto agrees and acknowledges that the
Documentation Agent, the arrangers, the book manager and the
co-agents do not have any duties or responsibilities in their
capacities as Documentation Agent, arrangers, book manager and
co-agents, respectively, hereunder and shall not have, or
become subject to, any liability hereunder in such capacities.
ARTICLE IX
Guarantee
In order to induce the Lenders to extend credit hereunder,
the Company uhereby absolutely, irrevocably and unconditionally
guarantees, as a primary obligor and not merely as a surety,
the timely payment of any and all of the Obligations. The
Company further agrees that the due and punctual payment of the
Obligations may be extended or renewed, in whole or in part,
without notice to or further assent from it, and that it will
remain bound upon its Guarantee hereunder notwithstanding any
such extension or renewal of any Obligation.
The Company waives presentment to, demand of payment from
and protest to any Borrowing Subsidiary of any of the
Obligations, and also waives notice of acceptance of its
obligations and notice of protest for nonpayment. The
obligations of the Company hereunder shall not be affected by (a)
the failure of any Lender or the Administrative Agent to
assert any claim or demand or to enforce or exercise any
right or remedy against any Loan Party under the provisions of
this Agreement, of any other Loan Document or otherwise or (b) any
rescission, waiver, amendment or modification of any of the terms
or provisions of this Agreement, any Borrowing Subsidiary
Agreement, any other Loan Document or any other agreement or the
release or other impairment of any Collateral or the release of
any Borrowing Subsidiary. The Company shall be obligated to keep
informed of the financial condition of the Borrowing Subsidiaries;
provided that the failure of the Company to keep so informed shall
not affect its obligations hereunder.
The Company further agrees that its agreement under
this Article IX constitutes a promise of payment when due
(whether or not any bankruptcy or similar proceeding shall
have stayed the accrual or collection of any of the Obligations
or operated as a discharge thereof) and not merely of
collection, and waives any right to require that any resort
be had by any Lender to any balance of any deposit account or
credit on the books of any Lender in favor of any Loan Party or
any other Person or to any other remedy against any Loan
Party.
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The Administrative Agent and any Lender may at any time
and from time to time without the consent of, or notice to,
the Company, without incurring responsibility to the Company,
without impairing or releasing the obligations of the Company
hereunder or under any security provided by the Company for
performance of its obligations hereunder, upon or without
any terms or conditions and in whole or in part: (a) subject to
Section 10.02(b), change the manner, place or terms of payment
(including the currency thereof) of and/or change or extend the
time of payment of, renew or alter any of the Obligations, any
security therefor, or any liability incurred directly or
indirectly in respect thereof, and the guarantee herein made shall
apply to the Obligations as so changed, extended, renewed or
altered; (b) sell, exchange, release, surrender, realize
upon or otherwise deal with in any manner and in any order any
property by whomsoever at any time pledged or mortgaged to
secure, or howsoever securing, the Obligations or any
liabilities (including any of those hereunder) incurred directly
or indirectly in respect thereof or hereof, and/or any offset
thereagainst; (c) fail to assert any claims or demand or exercise
or refrain from exercising any rights or remedies against any
Subsidiary Borrower or others or otherwise act or refrain
from acting; (d) subject to Section 10.02(b), settle or
compromise any of the Obligations, any security therefor or any
liability (including any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, and subordinate the
payment of all or any part thereof to the payment of any liability
(whether due or not) of any Subsidiary Borrower; (e) apply any
sum by whomsoever paid or howsoever realized to any liability
or liabilities of any Subsidiary Borrower or any other guarantor
of any Obligations to the Lenders regardless of what liability
or liabilities of the Subsidiary Borrowers remain unpaid;
and/or (f) consent to or waive any breach of, or any act,
omission or default under, this Agreement or any other Loan
Documents or otherwise amend, modify or supplement this
Agreement, any other Loan Documents or any of such other
instruments or agreements.
The obligations of the Company under this Article IX shall
not be subject to any reduction, limitation, impairment or
termination for any reason, and shall not be subject to any
defense or setoff, counterclaim, recoupment or termination
whatsoever, by reason of the invalidity, illegality or
unenforceability of any of the Obligations, any impossibility in
the performance of the Obligations or otherwise. Without
limiting the generality of the foregoing, the obligations of
the Company under this Article IX shall not be discharged or
impaired or otherwise affected by the failure of the
Administrative Agent or any Lender to assert any claim or demand
or to enforce any remedy under this Agreement or any other
agreement, by any waiver or modification in respect of any
thereof, by any default, failure or delay, wilful or otherwise,
in the performance of the Obligations, or by any other act or
omission which may or might in any manner or to any extent vary
the risk of the Company or otherwise operate as a discharge of
the Company or any other Loan party as a matter of law or equity.
The Company further agrees that its obligations under this
Article IX shall continue to be effective or be reinstated, as
the case may be, if at any time payment, or any part thereof, of
any Obligation is rescinded or must otherwise be restored by the
Administrative Agent or any Lender upon the bankruptcy or
reorganization of any Loan Party or otherwise.
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In furtherance of the foregoing and not in limitation of
any other right which the Administrative Agent or any Lender
may have at law or in equity against the Company by virtue of
this Article IX, upon the failure of any Borrowing Subsidiary
to pay any Obligation when and as the same shall become due,
whether at maturity, by acceleration, after notice of
prepayment or otherwise, the Company hereby promises to and
will, upon receipt of written demand by the Administrative
Agent, forthwith pay, or cause to be paid, in cash the amount of
such unpaid Obligation. The Company further agrees that if payment
in respect of any Obligation shall be due in a currency other
than dollars and/or at a place of payment other than New York and
if, by reason of any Change in Law, disruption of currency or
foreign exchange markets, war or civil disturbance or similar
event, payment of such Obligation in such currency or at such
place of payment shall be impossible or, in the reasonable
judgment of any applicable Lender, not consistent with the
protection of its rights or interests, then, at the election
of any applicable Lender, the Company shall make payment of
such Obligation in dollars (based upon the applicable Exchange
Rate in effect on the date of payment) and/or in New York, and
shall indemnify such Lender against any losses or expenses that
it shall sustain as a result of such alternative payment.
Upon payment by the Company of any sums as provided above,
all rights of the Company against any Borrowing Subsidiary
arising as a result thereof by way of right of subrogation,
contribution, indemnity or otherwise shall in all respects by
subordinated and junior in right of payment to the prior
indefeasible payment in full in cash of all the Obligations
owed by such Borrowing Subsidiary to the Lenders and the Company
shall not exercise any such rights until such payment in full and
the Commitments are terminated.
The Guarantee of the Company under this Article IX is
a continuing guarantee and all liabilities to which it applies
or may apply under the terms hereof shall be conclusively presumed
to have been created in reliance hereon.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Except in the case of
notices and other communications expressly permitted to be
given by telephone, all notices and other communications
provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:
(a) if to any Borrower, to it in care of the Company at
Photronics, Inc., 15 Secor Road, Brookfield, Connecticut
06804, Attention of Robert J. Bollo (Telecopy No. (203)
775-5601) with a copy to Jeffrey P. Moonan, Esq.;
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase Manhattan Plaza,
8th Floor, New York, New York 10081, Attention of Susan
Rosario-Cancar (Telecopy No. (212) 552-5650) with a copy to Chase
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Manhattan Corporation, 999 Broad Street, Bridgeport,
Connecticut 06604, Attention of David Short, (Telecopy No. (203)
384-5362);
(c) if to the Issuing Bank, to it at The Chase Manhattan
Bank, 4 Chase Metrotech Center, 8th Floor, Brooklyn, New York
11245, Attention of Ginger Marco (Telecopy No. (718) 242-6535);
(d) if to the Swingline Lender, to it at The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase Manhattan Plaza,
8th Floor, New York, New York 10017, Attention of Susan
Rosario-Cancar (Telecopy No. (212) 552-5650); and
(e) if to any other Lender, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other
parties hereto. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement
shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments. (a) No failure or
delay by the Administrative Agent, the Issuing Bank or any
Lender in exercising any right or power hereunder or under any
other Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such
a right or power,preclude any other or further exercise thereof
or the exercise of any other right or power. The rights and
remedies of the Administrative Agent, the Issuing Bank and the
Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of any
Loan Document or consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall
be permitted by paragraph (b) of this Section, and then such
waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or issuance of
a Letter of Credit shall not be construed as a waiver of
any Default, regardless of whether the Administrative Agent,
any Lender or the Issuing Bank may have had notice or knowledge of
such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor
any provision hereof or thereof may be waived, amended or
modified except pursuant to an agreement or agreements in
writing entered into by the Company and the Subsidiaries
that are parties thereto and the Required Lenders or by the
Company and the Subsidiaries that are parties thereto and the
Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the
Commitment of any Lender without the written consent of such
Lender, or increase the percentage of total Commitments of the
Multicurrency Lenders allocable to Revolving Credit Exposures
denominated in an Alternative Currency without the written consent
of each Multicurrency Lender, (ii) reduce the principal amount
of any Loan or obligation to reimburse any
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LC Disbursement or reduce the rate of interest on any Loan or LC
Disbursement, or reduce any fees payable hereunder, without the
written consent of each Lender affected thereby, (iii) postpone
the date fixed for the payment or prepayment of the principal
amount of any Loan or the reimbursement of any LC Disbursement, or
any interest thereon, or any fees payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, or amend or
waive the application of Section 2.10(b) or Section 2.18(b),
without the written consent of each Lender affected thereby, (iv)
release the Company from its Guarantee under Article IX, or
limit its liability in respect of such Guarantee, without the
written consent of each Lender, (v) except in the event of any
merger, consolidation, liquidation or dissolution permitted
under Section 6.03, release any Subsidiary from its Guarantee
under a Guarantee Agreement or, except pursuant to Section 2.19,
its obligations under the applicable Borrowing Subsidiary
Agreement, or limit its liability in respect of such Guarantee
or such Guarantee Agreement or its obligation to enter into
and provide a Guarantee pursuant to a Guarantee Agreement,
without the written consent of each Lender, (vi) except in the
event of any merger, consolidation, liquidation or dissolution
permitted under Section 6.03, release all or any part of the
Collateral or permit the creation of any Lien on the Collateral,
without the written consent of each Lender, (vii) change Section
2.17(b) or (c) in a manner that would alter the pro rata
sharing of payments required thereby, without the written
consent of each Lender, (viii) change any of the provisions of
this Section or the definition of "Required Lenders" or any
other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender, (ix)
modify or amend Section 2.16, without the written consent of each
Lender, (x) consent to the amendment, modification or waiver of
any of the terms of any Consolidated Subordinated Indebtedness
not permitted under Section 6.11, or consent to any payment or
other distribution on any Consolidated Subordinated
Indebtedness not permitted under Section 6.06(b), or consent to
the incurrence of additional Consolidated Subordinated
Indebtedness, or amend or waive the application of Section
6.06(b) or Section 6.11(b) with respect to any Consolidated
Subordinated Indebtedness, in each case without the written
consent of each Lender, (xi) consent to the assignment or
transfer by any Loan Party of its rights or obligations
hereunder or under any Loan Document, without the written
consent of each Lender, or (xii) waive any of the conditions
precedent set forth in Article 4 hereof, without the written
consent of each Lender; provided further that no such agreement
shall amend, modify or otherwise affect the rights or duties of
the Administrative Agent, the Issuing Bank or the Swingline
Lender hereunder without the prior written consent of
the Administrative Agent, the Issuing Bank or the Swingline
Lender, as the case may be.
SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The
Company shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements
of counsel for the Administrative Agent, in connection with the
syndication of the credit facilities provided for herein, the
preparation and administration of the Loan Documents or any
amendments, modifications or waivers of the provi sions hereof
or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Bank in
connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any
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demand for payment thereunder and (iii) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, the
Issuing Bank or any Lender, including the reasonable fees,
charges and disbursements of any counsel for the
Administrative Agent, the Issuing Bank or any Lender, in
connection with the enforcement or protection of its rights
with respect to any Loan Party in connection with the Loan
Documents, including its rights under this Section, or in
connection with the Loans made or Letters of Credit issued
hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in
respect of such Loans or Letters of Credit.
(b) The Company shall indemnify the Administrative Agent,
the Issuing Bank and each Lender, and each Related Party of any
of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related
expenses, including the reasonable fees, charges and
disbursements of any counsel for any Indemnitee, incurred by
or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or
delivery of any Loan Document or any agreement or instrument
contemplated hereby, the performance by the parties to the Loan
Documents of their respective obligations thereunder or the
consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use
of the proceeds therefrom (including any refusal by the Issuing
Bank to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not
strictly comply with the terms of such Letter of Credit), (iii)
any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Company
or any of its Subsidiaries, or any Environmental Liability
related in any way to the Company or any of its Subsidiaries, or
(iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any
Indemnitee is a party thereto; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence
or wilful misconduct of such Indemnitee.
(c) To the extent that the Company fails to pay any amount
required to be paid by it to the Administrative Agent, the Issuing
Bank or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the
Administrative Agent, the Issuing Bank or the Swingline Lender,
as the case may be, such Lender's Applicable Percentage
(determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be,
was incurred by or asserted against the Administrative Agent, the
Issuing Bank or the Swingline Lender in its capacity as such. To
the extent that the Administrative Agent, the Issuing Bank or the
Swingline Lender subsequently receives reimbursement of such
unpaid amount from the Company, the Administrative Agent, the
Issuing Bank or the Swingline Lender will distribute the amount
of such reimbursement to the Lenders who paid the
Administrative Agent, the Issuing Bank or the Swingline Lender.
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(d) To the extent permitted by applicable law, no Borrower
shall assert, and each Borrower hereby waives, any claim against
any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any other Loan Document or
any agreement or instrument contemplated hereby or thereby, the
Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof.
(e) All amounts due under this Section 10.03 shall be
payable promptly after written demand therefor (subject to
reimbursement, together with interest thereon from the date of
payment, if there is a determination that such Indemnitee was
not entitled in whole or in part to such amount).
SECTION 10.04. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of
the parties hereto (including the parties to any Borrowing
Subsidiary Agreement) and their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing
Bank that issues any Letter of Credit), except that no Borrower
may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and
any attempted assignment or transfer by any Borrower without
such consent shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby (including
any Affiliate of the Issuing Bank that issues any Letter of
Credit) and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent, the Issuing
Bank and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at
the time owing to it); provided that (i) except in the case of an
assignment to a Lender or an Affiliate of a Lender, each of the
Company and the Administrative Agent (and, in the case of an
assignment of all or a portion of a Commitment or any Lender's
obligations in respect of its LC Exposure or Swingline Exposure,
the Issuing Bank and the Swingline Lender) must give their prior
written consent to such assignment (which consent, in each
case, shall not be unreasonably withheld), (ii) except in
the case of an assignment to a Lender or an Affiliate of a
Lender or an assignment of the entire remaining amount of the
assigning Lender's Commitment, the amount of the Commitment of
the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be
less than $10,000,000 unless each of the Company and the
Administrative Agent otherwise consent, (iii) each partial
assignment shall be made as an assignment of a proportionate part
of all the assigning Lender's rights and obligations under this
Agreement, (iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $2,500 (which,
in the case of an assignment pursuant to Section 2.18(b), shall
be payable by the Company or the assignee), and (v) the
assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and
provided further that any consent of
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the Company otherwise required under this paragraph shall not be
required if an Event of Default under clause (h) or (i) of
Article VII has occurred and is continuing. Subject to
acceptance and recording thereof pursuant to paragraph (d) of
this Section, from and after the effective date specified
in each Assignment and Acceptance the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by
such Assignment and Acceptance, have the rights and obligations
of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall
cease to be a party hereto but shall continue to be entitled
to the benefits of Sections 2.14, 2.15, 2.16, 10.03 and
10.14). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this
paragraph shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as
an agent of the Borrowers, shall maintain at one of its offices
in The City of New York a copy of each Assignment and
Acceptance delivered to it and a register for the recordation
of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans and LC Disbursements
owing to, each Lender pursuant to the terms hereof from time to
time (the "Register"). The entries in the Register shall be
conclusive, and the Borrowers, the Administrative Agent, the
Issuing Bank and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for
inspection by the Company, the Issuing Bank and any Lender, at any
reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the
assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing
and recordation fee referred to in paragraph (b) of this
Section 10.04 and any written consent to such assignment
required by paragraph (b) of this Section 10.04, the
Administrative Agent shall accept such Assignment and Acceptance
and record the information contained therein in the Register.
No assignment shall be effective for purposes of this Agreement
unless it has been recorded in the Register as provided in this
paragraph.
(e) Any Lender may, without the consent of any Borrower
(subject to paragraph (f) of this Section), the Administrative
Agent, the Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of
its Commitment and the Loans owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and
(iii) the Borrowers, the Administrative Agent, the Issuing
Bank and the other Lenders shall continue to deal solely and
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directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the
sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 10.02(b) that
affects such Participant. Subject to paragraph (f) of this
Section, each Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.14, 2.15 and 2.16 to the
same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section
10.04. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 10.08 as though it
were a Lender, provided such Participant agrees to be subject to
Section 2.17(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any
greater payment under Section 2.14, 2.15 or 2.16 than the
applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made
with the Company's prior written consent. A Participant that would
be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 2.16 unless the Company is notified of
the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrowers, to comply with
Sections 2.16(e) and (f) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement
to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and
this Section 10.04 shall not apply to any such pledge or
assignment of a security interest (provided that, other than in
connection with a pledge to a Federal Reserve Bank, this
Section 10.04 shall apply to any transferee (including the
pledgee or assignee) upon the exercise of rights under such pledge
or assignment); provided that no such pledge or assignment of
a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee
for such Lender as a party hereto.
(h) Notwithstanding anything to the contrary contained
herein, any Lender (a "Granting Lender") may grant to a special
purpose funding vehicle (an "SPC") of such Granting Lender,
identified as such in writing from time to time by such Granting
Lender to the Administrative Agent and the Company, the
option to provide to the Company all or any part of any Loan
that such Granting Lender would otherwise be obligated to make
to a Borrower pursuant to Section 2.01, provided that (i)
nothing herein shall constitute a commitment to make any Loan by
any SPC, (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, such
Granting Lender shall be obligated to make such Loan pursuant to
the terms hereof and (iii) all credit decisions (including
without limitation any decisions with respect to amendments
and waivers) will continue to be made by such Granting Lender.
The making of a Loan by an SPC hereunder shall utilize the
Commitment of the applicable Granting Lender to the same
extent, and as if, such Loan were made by such Granting
Lender. Each party hereto hereby agrees that no SPC shall be
liable for any payment under this Agreement for which
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<PAGE>
a Lender would otherwise be liable, for so long as, and to the
extent, the related Granting Lender makes such payment. In
furtherance of the foregoing, each party hereto hereby agrees
that, prior to the date that is one year and one day after the
payment in full of all outstanding senior indebtedness of any SPC,
it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or similar
proceedings under the laws of the United States or any State
thereof. In addition, notwithstanding anything to the contrary
contained in this Section, any SPC may (i) with notice to, but
without the prior written consent of, the Company or the
Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans
to its Granting Lender in connection with liquidity and/or credit
facilities to or for the account of such SPC to fund such
Loans and (ii) subject to the provisions of Section 10.12,
disclose on a confidential basis any non-public information
relating to its Loans to any rating agency, commercial paper
dealer or provider of a surety, guarantee or credit or liquidity
enhancement to such SPC.
SECTION 10.05. Survival. All covenants, agreements,
representations and warranties made by the Loan Parties in
the Loan Documents and in the certificates or other
instruments delivered in connection with or pursuant to this
Agreement or any other Loan Document shall be considered to
have been relied upon by the other parties hereto and shall
survive the execution and delivery of the Loan Documents and
the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on
its behalf and notwithstanding that the Administrative Agent, the
Issuing Bank or any Lender may have had notice or knowledge of
any Default or incorrect representation or warranty at the time
any credit is extended hereunder, and shall continue in full
force and effect as long as the principal of or any accrued
interest on any Loan or any fee or any other amount payable under
this Agreement is outstanding and unpaid or any Letter of Credit
is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.14, 2.15, 2.16,
10.03 and 10.15(i) and Article VIII shall survive and remain in
full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the Loans,
the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision
hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall
constitute a single contract. The Loan Documents and the
separate letter agreements with respect to fees payable to the
Administrative Agent and the Documentation Agent constitute
the entire contract among the parties relating to the subject
matter thereof and supersede any and all previous agreements
and understandings, oral or written, relating to the subject
matter hereof. Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed
by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors
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<PAGE>
and assigns. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this
Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a
particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender and each of its
Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or
demand, provisional or final), in any currency, at any time held
and other obligations at any time owing by such Lender or
Affiliate, in any currency, to or for the credit or the account
of any Borrower against any of and all the obligations of such
Borrower, in any currency, now or hereafter existing under this
Agreement held by such Lender, irrespective of whether or not
such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured or denominated in a
different currency. The amount of any setoff involving
obligations denominated in different currencies shall be
determined by the Administrative Agent utilizing the Exchange
Rate in effect on the date of such setoff. The rights of each
Lender under this Section 10.08 are in addition to other rights
and remedies (including other rights of setoff) which such
Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to
Service of Process.
(a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York
sitting in New York County and of the United States District
Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of
or relating to this Agreement or any other Loan Document, or for
recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be
heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent,
the Issuing Bank or any Lender may otherwise have to bring any
action or proceeding relating to this Agreement or any other
Loan Document against any Borrower or its properties in
the courts of any jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to
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<PAGE>
the laying of venue of any suit, action or proceeding arising out
of or relating to this Agreement in any court referred to in
paragraph (b) of this Section 10.09. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(d) Each party to this Agreement (including any Borrowing
Subsidiaries) irrevocably consents to service of process in the
manner provided for notices in Section 10.01. Each of the
Subsidiary Borrowers hereby appoints the Company as its agent to
receive on its behalf service of proceedings arising out of
or relating to this Agreement or any other Loan Document in any
court, such service being hereby acknowledged by each Borrowing
Subsidiary to be effective and binding service in every
respect. Nothing in this Agreement will affect the right of any
party to this Agreement to serve process in any other manner
permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 10.10.
SECTION 10.11. Headings. Article and Section headings
and the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and shall not
affect the construction of, or be taken into consideration
in interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each of the
Administrative Agent, the Issuing Bank and the Lenders agrees
to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and
its Affiliates' directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it
being understood that the Persons to whom such disclosure is
made will be informed of the confidential nature of such
Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection
with the exercise of any remedies under any Loan Document or
any suit, action or proceeding relating to this Agreement or any
other Loan Document or the enforcement of rights hereunder
or thereunder or to which the Administrative Agent, the
Issuing Bank or such Lender is a party, (f) subject to an
agreement containing provisions substantially the same as
those of this Section 10.12, to any assignee of or Participant in,
or any prospective assignee of or Participant in, any of its
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<PAGE>
rights or obligations under this Agreement, (g) with the consent
of the Company or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this
Section 10.12 or (ii) becomes available to the Administrative
Agent, the Issuing Bank or any Lender on a nonconfidential basis
from a source other than a Loan Party. For the purposes of this
Section 10.12, "Information" means all information received
from a Loan Party relating to a Loan Party or its business, other
than any such information that is available to the Administrative
Agent, the Issuing Bank or any Lender on a nonconfidential basis
prior to disclosure by a Loan Party; provided that, in the
case of information received from a Loan Party after the date
hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section
10.12 shall be considered to have complied with its obligation to
do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as
such Person would accord to its own confidential information.
SECTION 10.13. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate
applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under
applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted
for, charged, taken, received or reserved by the Lender
holding such Loan in accordance with applicable law, the rate
of interest payable in respect of such Loan hereunder, together
with all Charges payable in respect thereof, shall be limited to
the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan
but were not payable as a result of the operation of this
Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall
be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon to the date of
repayment, shall have been received by such Lender.
SECTION 10.14. Conversion of Currencies. (a) If, for
the purpose of obtaining judgment in any court, it is
necessary to convert a sum owing hereunder in one currency into
another currency, each party hereto agrees, to the fullest
extent that it may effectively do so, that the rate of exchange
used shall be that at which in accordance with normal banking
procedures in the relevant jurisdiction the first currency
could be purchased with such other currency on the Business
Day immediately preceding the day on which such judgment is
given.
(b) The obligations of each Borrower in respect of any sum
due to any party hereto or any holder of the obligations
owing hereunder (the "Applicable Creditor") shall,
notwithstanding any judgment in a currency (the "Judgment
Currency") other than the currency in which such sum is
stated to be due hereunder (the "Agreement Currency"), be
discharged only to the extent that, on the Business Day
following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable
Creditor may in accordance with normal banking procedures in the
relevant jurisdiction purchase the Agreement Currency with
the Judgment Currency; if the amount of the Agreement
Currency so purchased is less than the sum originally due to
the Applicable Creditor in the Agreement Currency, such
Borrower agrees, as a separate obligation and notwithstanding
any such judgment, to indemnify the Applicable
85
<PAGE>
Creditor against such loss. The obligations of the Borrowers
contained in this Section 10.14 shall survive the termination of
this Agreement and the payment of all other amounts owing
hereunder.
SECTION 10.15. European Economic and Monetary Union. (a)
Definitions. In this Section 10.15 and in each other
provision of this Agreement to which reference is made in this
Section 10.15 expressly and impliedly, the following terms have
the meanings given to them in this Section 10.15:
"commencement of the third stage of EMU" means the date of
commencement of the third stage of EMU (at the date of this
Agreement expected to be January 1, 1999) or the date on which
circumstances arise which (in the opinion of the
Administrative Agent) have substantially the same effect
and result in substantially the same consequences as
commencement of the third stage of EMU as contemplated by the
Treaty on European Union.
"EMU" means economic and monetary union as contemplated in
the Treaty on European Union.
"EMU legislation" means legislative measures of the
European Council for the introduction of, changeover to or
operation of a single or unified European currency (whether
know or the euro or otherwise), being in part the
implementation of the third stage of EMU;
"euro" means the single currency of participating member
states of the European Union;
"euro unit" means the currency unit of the euro;
"national currency unit" means the unit of any Alternative
Currency (other than a euro unit) of a participating member state;
"participating member state" means each state so
described in any EMU legislation; and
"target operating day" means any day that is not (i) a
Saturday or Sunday, (ii) Christmas Day or New Year's Day or
(iii) any other day on which the Trans-European Real-time
Gross Settlement Operating System (or any successor settlement
system) is not operating (as determined by the Administrative
Agent).
"Treaty on European Union" means the Treaty of Rome of March
25, 1957, as amended by the Single European Act 1986 and the
Maastricht Treaty (which was signed at Maastricht on February
7, 1992, and came into force on November 1, 1993), as amended
from time to time.
(b) Effectiveness of Provisions. The provisions of
paragraphs (c) to (i) below (inclusive) shall be effective at and
from the time of commencement of the third stage of EMU, provided
that if and to the extent that any such provision relates to any
state (or the currency of such state) that is not a participating
member state on the commencement of the third stage of
86
<PAGE>
EMU, such provision shall become effective in relation to such
state (and the currency of such state) at and from the date on
which such state becomes a participating member state.
(c) Borrowings After the Commencement of the Third Stage of
EMU. From and after the commencement of the third stage of EMU but
in any case only so long as and to the extent permitted by EMU
Legislation and the rules and regulations thereunder, the
applicable Borrower may from time to time request Loans and the
Company may request Letters of Credit in euro units or in any
national currency units that are an Alternative Currency in
which Loans or Letters of Credit may be denominated under the
terms and conditions of this Agreement, and in response thereto
the Multicurrency Lenders and the Issuing Bank, as applicable,
shall, on and subject to the terms and conditions of this
Agreement, make the requested Loans and issue the requested
Letters of Credit, as applicable, in euro units or in such
national currency units as requested by such Borrower or the
Company, and the principal of and interest on such Loans or on
reimbursement of any LC Disbursements shall be payable in euro
units or such national currency units.
(d) Determination of Eurocurrency Rate and Swingline Base
Rate. For the purposes of determining the date on which the
Eurocurrency Rate or Swingline Base Rate is determined under
this Agreement for any Loan denominated in the euro (or any
national currency unit) for any Interest Period therefor,
references in this Agreement to Business Days shall be deemed to
be references to target operating days. In addition, if the
Administrative Agent determines that there is no LIBO Rate or
Swingline Base Rate displayed on the Telerate Service for
deposits denominated in the national currency unit in which
any Loans are denominated, the LIBO Rate or Swingline Base Rate
for such Loans shall be based upon the rate displayed on the
Telerate Service for the offering of deposits denominated in euro
units.
(e) Payments to the Administrative Agent. Sections 2.06 and
2.17 shall be construed so that, in relation to the payment of
any amount of euro units or national currency units, such
amount shall be made available to the Administrative Agent
in immediately available, freely transferable, cleared funds
to such account with such bank in Frankfurt am Main, Germany
(or such other principal center in such participating member
state as the Administrative Agent may from time to time nominate
for this purpose) as the Administrative Agent shall from time to
time nominate for this purpose.
(f) Payments by the Administrative Agent Generally. In
relation to the payment of any amount denominated in the euro or
in a national currency unit, the Administrative Agent shall
not be liable to any Borrower or any of the Lenders in any way
whatsoever for any delay, or the consequences of any delay, in
the crediting to any account of any amount required by this
Agreement to be paid by the Administrative Agent if the
Administrative Agent shall have taken all relevant steps to
achieve, on the date required by this Agreement, the payment
of such amount in immediately available, freely transferable,
cleared funds (in the euro unit or, as the case may be, in a
national currency unit) to the account of any Lender in the
principal financial center in the participating member state
which the applicable Borrower or, as the case may be, any Lender
shall have specified for such purpose. In this paragraph (f),
"all relevant steps" means all
87
<PAGE>
such steps as may be prescribed from time to time by the
regulations or operating procedures of such clearing or
settlement system as the Administrative Agent may from time to
time determine for the purpose of clearing or settling payments
of the euro.
(g) Basis of Accrual. If the basis of accrual of interest or
fees expressed in this Agreement with respect to the currency
of any state that becomes a participating member state shall be
inconsistent with any convention or practice in the London
interbank market for the basis of accrual of interest or fees in
respect of the euro, such convention or practice shall replace
such expressed basis effective as of and from the date on
which such state becomes a participating member state;
provided, that if any Loan in the currency of such state is
outstanding on such date, such replacement shall take effect,
with respect to such Loan, at the end of the then current Interest
Period.
(h) Rounding and Other Consequential Changes. Without
prejudice and in addition to any method of conversion or
rounding prescribed by any EMU legislation and without
prejudice to the respective liabilities for indebtedness of the
Borrower to the Lenders and the Lenders to the Borrowers
under or pursuant to this Agreement: (i) each reference in this
Agreement to a minimum amount (or an integral multiple thereof)
in a national currency unit to be paid to or by the
Administrative Agent shall be replaced by a reference to such
reasonably comparable and convenient amount (or an integral
multiple thereof) in the euro unit as the Administrative Agent
may from time to time specify; and (ii) except as expressly
provided in this Section 10.15, each provision of this Agreement
shall be subject to such reasonable changes of construction as
the Administrative Agent may from time to time specify to
be necessary or appropriate to reflect the introduction of
or changeover to the euro in participating member states.
(i) Increased Costs. Subject to Section 2.18, the Company
shall or shall cause the applicable Borrower to, from time to
time, at the request of the Administrative Agent, pay to the
Administrative Agent for the account of each Lender as
reasonably determined by such Lender the amount of any cost
or increased cost incurred by, or of any reduction in any amount
payable to or in the effective return on its capital to, or of
interest or other return foregone by, such Lender or any
holding company of such Lender as a result of the introduction
of, changeover to or operation of the euro in any participating
member state (except to the extent reflected in the Adjusted
LIBO Rate, the Money Market Rate or the Swingline Base Rate). A
certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender setting forth in reasonable
detail the basis for such amount and the allocation to the
Company and the applicable Borrower shall be delivered to the
Company which shall be conclusive absent manifest error.
88
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
PHOTRONICS, INC., a Connecticut
corporation
By
________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent,
By
_________________________________
Name:
Title:
THE BANK OF NEW YORK,
individually and as
Documentation Agent
By
_______________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By
________________________________
Name:
Title:
FLEET NATIONAL BANK
[SIGNATURE PAGE TO CREDIT AGREEMENT]
By
________________________________
Name:
Title:
MARINE MIDLAND BANK
By
________________________________
Name:
Title:
PEOPLE'S BANK
By
________________________________
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY
By
________________________________
Name:
Title:
[SIGNATURE PAGE TO CREDIT AGREEMENT]
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Condensed Consolidated Statement of Earnings and the Consolidated Balance Sheet
and is qualified in its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1000
<S> <C> <C> <C> <C>
<PERIOD-TYPE> 3-MOS 6-MOS 9-MOS 12-MOS
<FISCAL-YEAR-END> NOV-02-1997 NOV-02-1997 NOV-02-1997 NOV-02-1997
<PERIOD-END> FEB-02-1997 MAY-04-1997 AUG-03-1997 NOV-02-1997
<CASH> 7,836 11,115 65,320 57,845
<SECURITIES> 5,104 0 28,358 28,189
<RECEIVABLES> 25,702 30,638 33,993 34,798
<ALLOWANCES> 235 235 235 235
<INVENTORY> 9,102 9,292 9,421 11,302
<CURRENT-ASSETS> 54,280 57,974 142,950 138,937
<PP&E> 191,916 207,801 237,263 275,713
<DEPRECIATION> 56,673 61,307 66,595 71,900
<TOTAL-ASSETS> 209,075 223,821 337,609 365,212
<CURRENT-LIABILITIES> 37,786 30,870 40,315 57,539
<BONDS> 2,005 17,023 106,412 106,194
0 0 0 0
0 0 0 0
<COMMON> 240 238 240 243
<OTHER-SE> 160,433 167,115 177,026 185,732
<TOTAL-LIABILITY-AND-EQUITY> 209,075 223,821 337,609 365,212
<SALES> 40,029 89,063 142,144 197,451
<TOTAL-REVENUES> 40,029 89,063 142,144 197,451
<CGS> 25,347 55,630 88,050 121,502
<TOTAL-COSTS> 25,347 55,630 88,050 121,502
<OTHER-EXPENSES> 0 0 0 0
<LOSS-PROVISION> 0 0 0 0
<INTEREST-EXPENSE> 36 140 1,408 2,466
<INCOME-PRETAX> 8,625 18,609 29,548 41,436
<INCOME-TAX> 3,300 7,100 11,200 15,800
<INCOME-CONTINUING> 5,325 11,509 18,348 25,636
<DISCONTINUED> 0 0 0 0
<EXTRAORDINARY> 0 0 0 0
<CHANGES> 0 0 0 0
<NET-INCOME> 5,325 11,509 18,348 25,636
<EPS-PRIMARY> 0.22 0.48 0.77 1.07
<EPS-DILUTED> 0.22 0.46 0.73 1.03
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Condensed Consolidated Statement of Earnings and the Consolidated Balance
Sheet and is qualified in its entirety by reference to such financial
statements.
<S> <C> <C> <C> <C>
<PERIOD-TYPE> 3-MOS 6-MOS 9-MOS 12-MOS
<FISCAL-YEAR-END> OCT-31-1996 OCT-31-1996 OCT-31-1996 OCT-31-1996
<PERIOD-END> JAN-31-1996 APR-30-1996 JUL-31-1996 OCT-31-1996
<CASH> 38,846 28,860 24,707 18,766
<SECURITIES> 5,195 4,025 2,260 7,918
<RECEIVABLES> 17,761 23,638 25,441 24,985
<ALLOWANCES> 195 195 195 235
<INVENTORY> 6,446 7,715 7,899 7,992
<CURRENT-ASSETS> 71,757 69,132 65,026 65,580
<PP&E> 127,321 139,702 161,775 176,406
<DEPRECIATION> 43,524 46,370 49,523 52,740
<TOTAL-ASSETS> 179,440 188,934 200,190 211,903
<CURRENT-LIABILITIES> 28,104 27,654 39,299 43,967
<BONDS> 1,800 1,790 1,781 1,987
0 0 0 0
0 0 0 0
<COMMON> 236 238 238 240
<OTHER-SE> 140,102 147,165 149,849 156,177
<TOTAL-LIABILITY-AND-EQUITY> 179,440 188,934 200,190 211,903
<SALES> 34,668 75,182 117,859 160,071
<TOTAL-REVENUES> 34,668 75,182 117,859 160,071
<CGS> 21,252 46,063 72,312 98,267
<TOTAL-COSTS> 21,252 46,063 72,312 98,267
<OTHER-EXPENSES> 0 0 0 0
<LOSS-PROVISION> 0 0 0 0
<INTEREST-EXPENSE> 40 80 120 160
<INCOME-PRETAX> 7,551 16,018 24,931 33,903
<INCOME-TAX> 2,900 6,100 9,500 12,900
<INCOME-CONTINUING> 4,651 9,918 15,431 21,003
<DISCONTINUED> 0 0 0 0
<EXTRAORDINARY> 0 0 0 0
<CHANGES> 0 0 0 0
<NET-INCOME> 4,651 9,918 15,431 21,003
<EPS-PRIMARY> 0.20 0.42 0.66 0.89
<EPS-DILUTED> 0.19 0.41 0.64 0.87
</TABLE>
Exhibit 10.27
September 21, 1998
Toppan Printing Co., Ltd.
1, Kanda Izumi-cho
Chiyoda-ku, Tokyo 101-0024
Japan
Gentlemen:
This will confirm our agreement regarding the purchase by
Photronics, Inc. ("Photronics") of 1,000,000 shares of common stock
("Common Stock") of Photronics from Toppan Printing Co., Ltd.
("Toppan").
We have agreed that Photronics will purchase, and Toppan will
sell, 1,000,000 shares of Common Stock currently owned by Toppan as
follows:
a) On or before September 25, 1998, Photronics will purchase
500,000 shares at a price of $13.50 per share.
b) On or before December 25, 1998, Photronics will purchase
250,000 shares at a price of $13.70 per share; and
c) On or before March 25, 1999, Photronics will purchase 250,000
shares at a price of $13.90 per share.
All of the shares to be sold to Photronics by Toppan shall be
delivered against payment free and clear of all liens, claims and
encumbrances.
We have also agreed that provided Photronics does not default
in its purchase obligations set forth above, until March 25, 1999,
Toppan shall not sell, transfer, pledge or otherwise dispose of any
shares of Common Stock other than the sales to Photronics.
If the foregoing accurately sets forth our agreement, please
so indicate by signing in the space provided below.
Very truly yours,
JEFFREY P. MOONAN
Jeffrey P. Moonan
Senior Vice President
General Counsel
Agreed to Accepted by:
TOPPAN PRINTING CO., LTD.
By: A. NAGATA
Name: Akihiro Nagata
Title: Director, Finance & Accounting Division
Date: September 22, 1998
