EXHIBIT 10.4
SECOND AMENDMENT TO CREDIT AGREEMENT
This Amendment, dated as of March 1, 2002, is made by and among
ENTEGRIS, INC., a Minnesota corporation (the "Borrower"), each of the banks
appearing on the signature pages hereof, together with such other banks as may
from time to time become a party to the Credit Agreement (defined below)
pursuant to the terms and conditions of Article VIII of the Credit Agreement
(herein collectively called the "Banks" and individually each called a "Bank"),
and XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association,
assignee of Xxxxx Fargo Bank Minnesota, National Association, formerly known as
Norwest Bank Minnesota, National Association, in its separate capacity as
administrative agent for itself and all other Banks (in such capacity, the
"Agent").
Recitals
A. The Borrower, the Banks and the Agent have entered into
a Credit Agreement dated as of November 30, 1999, as amended by a First
Amendment to Credit Agreement dated as of October 17, 2000 (as the same may
hereafter be amended or restated from time to time, the "Credit Agreement").
B. The Borrower has requested that the Banks and the Agent,
among other things, (i) extend the Maturity Date, and (ii) amend certain other
provisions of the Credit Agreement.
C. The Banks and the Agent are willing to grant the
Borrower's requests subject to the terms and conditions set forth below.
ACCORDINGLY, in consideration of the premises and for other good
and valuable consideration, the Borrower, the Banks and the Agent agree as
follows:
1. All capitalized terms used in this Amendment and not
otherwise specifically defined in this Amendment shall have the meanings given
such terms in the Credit Agreement.
2. Section 1.1 of the Credit Agreement is hereby amended by
adding the following new definitions in the appropriate alphabetical locations
in Section 1.1 of the Credit Agreement:
"'Capital Expenditure' means any expenditure of money for the
purchase or construction of fixed assets or for the purchase or
construction of any other assets, or for improvements or additions
thereto, which are capitalized on the Borrower's balance sheet, whether
payable currently or in the future, excluding, however, any expenditure
of cash in connection with an acquisition of stock or assets of another
Person permitted under Section 6.4(g) of this Agreement."
"'Xxxxxx Bank' means Xxxxxx Trust and Savings Bank."
"'Long Term Debt' of a Person means, as of any date of
determination, Funded Debt of such Person (excluding Revolving
Advances)."
"'Operating Lease Liabilities' of any Person means, with respect
to the applicable Covenant Computation Period, all monetary obligations
of such Person under any leasing or similar arrangement which, in
accordance with GAAP, would be classified as operating leases."
"'Permitted Restricted Payments' means payments of dividends,
distributions or otherwise, if any, made by the Borrower pursuant to
Section 6.5 of this Agreement."
"'Rent Expense' means Capitalized Lease Liabilities, Operating
Lease Liabilities and any other monetary obligation of the Borrower for
rent with respect to the applicable Covenant Computation Period."
"'Revolving Commitment Period' means a 364-day period commencing
on March 1, 2002 and ending on the Maturity Date, unless the Revolving
Commitments are earlier terminated pursuant to Section 7.2 or are
earlier reduced to zero pursuant to Section 2.14(a)."
"'Second Amendment' means the Second Amendment to Credit
Agreement, dated as of March 1, 2002, by and among the Borrower, the
Banks and the Agent."
"'Second Amendment Effective Date' means the date on which all
of the conditions precedent set forth in paragraph 25 of the Second
Amendment to the effectiveness of the Second Amendment have been
satisfied."
"'Tangible Net Worth' of a Person means, as of the applicable
Covenant Computation Date, the difference between (a) the tangible
assets of such Person, calculated in accordance with GAAP, after
deducting adequate reserves in each case where, in accordance with GAAP,
a reserve is proper and (b) all Debt of such Person; provided, that in
no event shall there be included as tangible assets, patents,
trademarks, tradenames, copyrights, licenses, goodwill, receivables from
Affiliates of such Person, prepaid expenses, deposits, deferred charges
or treasury stock or any securities or Debt of such Person, or any other
securities unless such securities are readily marketable on a public
exchange in the United States of America, income tax liabilities, and
any other assets designated from time to time by the Bank, in its
reasonable discretion, as intangible assets."
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"'Unused Commitment Fee Percentage' means, as of the date of
determination, the percentage set forth in the table below opposite the
applicable range of the ratio of Total Funded Debt to EBITDA of the
Borrower and its Subsidiaries as of such date of determination;
provided, however, notwithstanding the foregoing, the Unused Commitment
Fee Percentage shall be 0.200% so long as (i) the Borrower maintains the
sum of its cash and cash equivalents in an aggregate amount of more than
$50,000,000, and (ii) there are no outstanding Revolving Advances under
the Revolving Facility. Reductions and increases in the Unused
Commitment Fee Percentage will be verified by the Agent upon receipt of
the financial statements of the Borrower and its Subsidiaries and
related compliance certificate as required under Section 5.1(b) of this
Agreement. The ratio will be determined on the basis of a rolling four
quarter calculation of the ratio of Total Funded Debt to EBITDA as of
the last day of the most recent quarter-end reflected in the most recent
financial statements delivered by the Borrower for the Borrower and its
Subsidiaries under Section 5.1(b). Any reduction or increase in the
Unused Commitment Fee Percentage will become effective on the first day
of the first month following the applicable Quarterly Financial
Statement Due Date. If the Borrower fails to deliver the financial
statements of the Borrower and its Subsidiaries and/or related
compliance certificate required under Section 5.1(b) on or before the
applicable Quarterly Financial Statement Due Date, the Borrower and its
Subsidiaries shall be deemed to have a ratio of Total Funded Debt to
EBITDA for such quarter of more than 2.00 to 1.00, and the Unused
Commitment Fee Percentage will be 0.350% beginning on the first day of
the first month following such Quarterly Financial Statement Due Date
and will continue as such until the Borrower delivers the financial
statements of the Borrower and its Subsidiaries for the next fiscal
quarter in accordance with Section 5.1(b).
Ratio of Total Funded Unused Commitment Fee
Debt to EBITDA Percentage
----------------------------------------------------
* 2.00/1.00 0.350%
----------------------------------------------------
* 1.50/1.00 to 2.00/1.00 0.300%
----------------------------------------------------
1.00/1.00 to 1.50/1.00 0.250%
----------------------------------------------------
** 1.00/1.00 0.200%
----------------------------------------------------
* - less than
** - greater than
"'Xxxxx Fargo' means Xxxxx Fargo Bank, National Association, a
national banking association."
3. Section 1.1 of the Credit Agreement is hereby amended by
amending the following definitions in their entirety to read as follows:
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"'EBITDA' means, with respect to the applicable Covenant
Computation Period, Pre-Tax Earnings (excluding non-cash income) plus
Interest Expense and Non-Cash Charges, in each case excluding
extraordinary items, determined with respect to the Borrower during such
Covenant Computation Period."
"'Eurodollar Rate Margin' means, as of the date of
determination, the percentage set forth in the table below opposite the
applicable range of the ratio of Total Funded Debt to EBITDA of the
Borrower and its Subsidiaries as of such date of determination.
Reductions and increases in the Eurodollar Rate Margin will be verified
by the Agent upon receipt of the financial statements of the Borrower
and its Subsidiaries and related compliance certificate as required
under Section 5.1(b) of this Agreement. The ratio will be determined on
the basis of a rolling four quarter calculation of the ratio of Total
Funded Debt to EBITDA as of the last day of the most recent quarter-end
reflected in the most recent financial statements delivered by the
Borrower for the Borrower and its Subsidiaries under Section 5.1(b). Any
reduction or increase in the Eurodollar Rate Margin will become
effective on the first day of the first month following the applicable
Quarterly Financial Statement Due Date. If the Borrower fails to deliver
the financial statements of the Borrower and its Subsidiaries and/or
related compliance certificate required under Section 5.1(b) on or
before the applicable Quarterly Financial Statement Due Date, the
Borrower and its Subsidiaries shall be deemed to have a ratio of Total
Funded Debt to EBITDA for such quarter of more than 2.00 to 1.00, and
the Eurodollar Rate Margin will be 2.000% beginning on the first day of
the first month following such Quarterly Financial Statement Due Date
and will continue as such until the Borrower delivers the financial
statements for the Borrower and its Subsidiaries for the next fiscal
quarter in accordance with Section 5.1(b).
Ratio of Total Funded Eurodollar Rate Spread for
Debt to EBITDA Revolving Advances
--------------------------------------------------------------
* 2.00/1.00 2.000%
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* 1.50/1.00 to 2.00/1.00 1.750%
--------------------------------------------------------------
1.00/1.00 to 1.50/1.00 1.500%
--------------------------------------------------------------
** 1.00/1.00 1.375%
--------------------------------------------------------------
* - less than
** - greater than
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"'Fixed Charge Coverage Ratio' means, with respect to the
applicable Covenant Computation Date, the ratio of (a) EBITDA, plus Rent
Expense, less Capital Expenditures, less cash taxes (but, with respect
to cash taxes, only to the extent included in the calculation of
EBITDA), less Permitted Restricted Payments, to (b) Interest Expense,
plus Rent Expense, plus current maturities of the Borrower's Long Term
Debt."
"'Floating Rate Margin' means, as of the date of determination,
the percentage set forth below in the table opposite the applicable
range of the ratio of Total Funded Debt to EBITDA of the Borrower and
its Subsidiaries as of such determination. Reductions and increases in
the Floating Rate Margin will be verified by the Agent upon receipt of
the financial statements of the Borrower and its Subsidiaries and
related compliance certificate as required under Section 5.1(b) of this
Agreement. The ratio will be determined on the basis of a rolling four
quarter calculation of the ratio of Total Funded Debt to EBITDA as of
the last day of the most recent quarter-end reflected in the most recent
financial statements delivered by the Borrower for the Borrower and its
Subsidiaries under Section 5.1(b). Any reduction or increase in the
Floating Rate Margin will become effective on the first day of the first
month following the applicable Quarterly Financial Statement Due Date.
If the Borrower fails to deliver the financial statements of the
Borrower and its Subsidiaries and/or related compliance certificate
required under Section 5.1(b) on or before the applicable Quarterly
Financial Statement Due Date, the Borrower and its Subsidiaries shall be
deemed to have a ratio of Total Funded Debt to EBITDA for such quarter
of more than 2.00 to 1.00, and the Floating Rate Margin will be 0.125%,
beginning on the first day of the first month following such Quarterly
Financial Statement Due Date and will continue as such until the
Borrower delivers the financial statements for the Borrower and its
Subsidiaries for the next fiscal quarter in accordance with Section
5.1(b).
Ratio of Total Funded
Debt to EBITDA Floating Rate Margin
--------------------------------------------------------
* 2.00/1.00 .125%
--------------------------------------------------------
* 1.50/1.00 to 2.00/1.00 0.000%
--------------------------------------------------------
1.00/1.00 to 1.50/1.00 0.000%
--------------------------------------------------------
** 1.00/1.00 0.000%
--------------------------------------------------------
* - less than
** - greater than
"'Guarantor' means any Person which may now or hereafter
guaranty any of the Obligations of the Borrower to the Bank."
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"'Interest Expense' means, with respect to the applicable
Covenant Computation Period, the total gross interest expense on all of
the Borrower's Debt during such period, and shall in any event include,
without limitation and without duplication, (a) accrued interest
(whether or not paid) on all Debt, (b) the amortization of Debt
discounts, (c) the amortization of all fees payable in connection with
the incurrence of Debt to the extent included in interest expense, and
(d) the interest portion of any capitalized lease expenditure, all
determined in accordance with GAAP."
"'Non-Cash Charges' means, with respect to the applicable
Covenant Computation Period, the Borrower's depreciation and
amortization determined in accordance with GAAP."
"'Maturity Date' means February 28, 2003 with respect to the
Revolving Facility."
"'Revolving Commitment' means, with respect to each Bank, the
amount of the Revolving Commitment set forth opposite such Bank's name
on the execution pages of the Second Amendment, or below such Bank's
signature on an Assignment Certificate executed by such Bank, unless
such amount is reduced pursuant to Section 2.14(a) hereof, in which
event it means the amount to which said amount is reduced pursuant
thereto, or as the context may require, the obligation of such Bank to
make Revolving Advances, as contemplated in Section 2.1."
"'Revolving Commitment Amount' shall mean Twenty Million Dollars
($20,000,000), being the maximum amount of the Revolving Commitments of
all Banks, in the aggregate, to make Revolving Advances to the Borrower
pursuant to Section 2.1, subject to reduction in accordance with Section
2.14(a)."
"'Revolving Note' means a promissory note of the Borrower
payable to a Bank in the amount of such Bank's Revolving Commitment, in
substantially the form of Exhibit A attached to the Second Amendment
(as such promissory note may be amended, extended or otherwise modified
from time to time), evidencing the aggregate indebtedness of the
Borrower to such Bank resulting from such Bank's Percentage of each
Borrowing under the Revolving Facility, and also means each promissory
note accepted by such Bank from time to time in substitution therefor
or in renewal thereof."
4. Section 1.1 of the Credit Agreement is hereby deleting
the definitions of "Cash Flow Available for Fixed Charges", "Fixed Charge
Requirements", "Commitment Fee Percentage", "Norwest", "Net Worth", and "Year
2000 Compliant".
5. Section 2.1 of the Credit Agreement is hereby amended in
its entirety to read as follows:
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"Section 2.1 Commitment as to Revolving Facility. Each Bank
hereby agrees, on the terms and subject to the conditions herein set
forth, to make Revolving Advances to the Borrower from time to time
during the Revolving Commitment Period, in an aggregate amount at any
time outstanding not to exceed such Bank's Percentage of each Borrowing
from time to time requested by the Borrower under the Revolving
Facility; provided, however, that (a) the Revolving Facility Outstanding
Amount shall at no time exceed the Revolving Commitment Amount and (b)
no Bank's Percentage of the Revolving Facility Outstanding Amount shall
at any time exceed such Bank's Revolving Commitment. Within the above
limits, the Borrower may obtain Revolving Advances, prepay Revolving
Advances in accordance with the terms hereof and reborrow Revolving
Advances in accordance with the applicable terms and conditions of this
Article II."
6. The first sentence of Section 2.6 of the Credit
Agreement is hereby amended to read as follows:
"The Letter of Credit Bank agrees, during the period from the Closing
Date to the date which is thirty (30) days prior to the Revolving
Commitment Termination Date, to issue one or more standby letters of
credit for the account of the Borrower, and the Banks agree to
participate in the risk of such letters of credit issued for the account
of the Borrower hereunder, on the terms and subject to the conditions
set forth below:"
7. Section 2.12(b) of the Credit Agreement is hereby
amended to read as follows:
"(b) Unused Commitment Fee. The Borrower agrees to pay to the
Agent, for the pro rata account of the Banks, an unused commitment fee
(the "Unused Commitment Fee") computed at the rate of the applicable
Unused Commitment Fee Percentage per annum on the daily average amount
by which the Revolving Commitment Amount exceeds the Revolving Facility
Outstanding Amount, from the Closing Date to and including the Revolving
Commitment Termination Date, payable quarterly in arrears on the last
day of each August, November, February and May. Any such Unused
Commitment Fee remaining unpaid on the Revolving Commitment Termination
Date shall be due and payable on such date. The Unused Commitment Fee
shall be shared by the Banks on the basis of their respective
Percentages."
8. Section 3.2 of the Credit Agreement is hereby amended to
read as follows:
"Section 3.2 Conditions Precedent to All Borrowings. The
obligation of the Banks to fund each request for a Borrowing or to issue
each Letter of Credit shall be subject to the further conditions
precedent that on such date:
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(a) the representations and warranties contained in
Article IV hereof are correct in all material respects on and as
of the date of such Advance as though made on and as of such
date;
(b) no event has occurred and is continuing, or would
result from such Advance, which constitutes a Default or an
Event of Default; and
(c) as of the Covenant Computation Date most recently
preceding such date, the Borrower's Fixed Charge Coverage Ratio
was not less than 1.50 to 1.00."
9. Section 4.4 of the Credit Agreement is hereby amended to
read as follows:
"Section 4.4 Subsidiaries. Schedule 4.4 attached to the Second
Amendment is a complete and correct list of all Subsidiaries and
Affiliates of the Borrower and the percentage of the ownership of the
Borrower or any Subsidiary in each such Subsidiary or Affiliate as of
the date of the Second Amendment Effective Date. All shares of each
Subsidiary and Affiliate owned by the Borrower or any Subsidiary are
validly issued and fully paid and non-assessable."
10. Section 4.15 of the Credit Agreement is hereby amended
to read as follows:
"Section 4.15 Reserved."
11. Section 5.1(a) of the Credit Agreement is hereby amended
to read as follows:
"(a) as soon as available, and in any event within 120 days
after the end of each fiscal year of the Borrower, the annual audit
report of the Borrower and its Subsidiaries with the unqualified opinion
of independent certified public accountants selected by the Borrower and
acceptable to the Agent, which annual report shall include the balance
sheets of the Borrower and its Subsidiaries as at the end of such fiscal
year and the related statements of income, retained earnings and cash
flows of the Borrower and its Subsidiaries for the fiscal year then
ended, prepared on a consolidated and consolidating basis, all in
reasonable detail and prepared in accordance with GAAP, together with a
certificate of the chief financial officer of the Borrower,
substantially in the form of Exhibit B to the Second Amendment, stating
that such annual audit report has been prepared in accordance with GAAP
and whether or not such officer has knowledge of the occurrence of any
Default or Event of Default hereunder and, if so, stating in reasonable
detail the facts with respect thereto;"
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12. Section 5.1(b) of the Credit Agreement is hereby amended
to read as follows:
"(b) as soon as available and in any event on or before the
applicable Quarterly Financial Statement Due Date after the end of each
fiscal quarter of the Borrower, an unaudited/internal balance sheet and
statement of income, cash flow and retained earnings of the Borrower and
its Subsidiaries as at the end of and for such quarter and for the
year-to-date period then ended, prepared on a consolidated and
consolidating basis, in reasonable detail and the figures for the
corresponding date and periods in the previous year, all prepared in
accordance with GAAP hereof, subject to year-end audit adjustments; and
accompanied by a certificate of the chief financial officer of the
Borrower, substantially in the form of Exhibit C to the Second
Amendment, stating (i) that such financial statements have been prepared
in accordance with GAAP, subject to year-end audit adjustments, (ii)
whether or not such officer has knowledge of the occurrence of any
Default or Event of Default hereunder not theretofore reported and
remedied and, if so, stating in reasonable detail the facts with respect
thereto, and (iii) all relevant facts in reasonable detail to evidence,
and the computations as to (A) the status of the Borrower and its
Subsidiaries for purposes of establishing the appropriate Eurodollar
Rate Margin, Floating Rate Margin and Unused Commitment Fee Percentage
and (B) whether or not the Borrower and its Subsidiaries are in
compliance with the requirements set forth in Sections 5.8 through
5.10;"
13. Section 5.8 of the Credit Agreement is hereby amended to
read as follows:
"Section 5.8 Fixed Charge Coverage Ratio. As of each Covenant
Computation Date, the Borrower and its Subsidiaries, on a consolidated
basis, will maintain a Fixed Charge Coverage Ratio of not less than 1.50
to 1.00; provided, however, although the Borrower shall report its Fixed
Charged Coverage Ratio as of each Covenant Computation Date, the
Borrower shall be required to comply with the ratio required by this
Section 5.8 only if, as of the applicable Covenant Computation Date, (i)
the Borrower has outstanding Revolving Advances under the Revolving
Facility of $1 or more, or (ii) the aggregate amount of cash and cash
equivalents of the Borrower are less than $50,000,000."
14. Section 5.9 of the Credit Agreement is hereby amended to
read as follows:
"Section 5.9 Leverage Ratio. As of each Covenant Computation
Date, the Borrower and its Subsidiaries, on a consolidated basis, will
maintain a Leverage Ratio of not more than (i) 2.50 to 1.00 as of each
Covenant Computation Date which occurs during the period from the Second
Amendment Effective Date to and including February 23, 2002, (ii) 3.00
to 1.00 as of each Covenant Computation Date which
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occurs during the period from February 24, 2002 to and including May 25,
2002, and (iii) 2.50 to 1.00 as of each Covenant Computation Date which
occurs from and after May 26, 2002."
15. Section 5.10 of the Credit Agreement is hereby amended
in its entirety to read as follows:
"Section 5.10 Minimum Tangible Net Worth. As of each Covenant
Computation Date, the Borrower and its Subsidiaries, on a consolidated
basis, will maintain a Tangible Net Worth in an amount not less than the
amount set forth below opposite the applicable Covenant Computation Date
set forth below:
Applicable Covenant Minimum Tangible Net
Computation Date Worth Amount
-------------------------- ---------------------------
August 25, 2001 $235,000,000
November 24, 2001 and each Required Tangible Net Worth
subsequent Covenant Amount
Computation Date
As used in this Section 5.10, the "Required Tangible Net Worth
Amount" for any given Covenant Computation Date is an amount equal to
the sum of the minimum Tangible Net Worth required as of the immediately
preceding Covenant Computation Date, plus fifty percent (50%) of the Net
Income realized by the Borrower and its Subsidiaries, on a consolidated
basis, since such immediately preceding Covenant Computation Date (with
any net loss counting as zero in such calculation), plus fifty percent
(50%) of the net cash proceeds received by the Borrower and/or its
Subsidiaries from any equity offering made by the Borrower and/or its
Subsidiaries since such immediately preceding Covenant Computation
Date."
16. Section 5.11 of the Credit Agreement is hereby amended
to read as follows:
"Section 5.11 Reserved."
17. Section 5.12 of the Credit Agreement is hereby amended
to read as follows:
"Section 5.12 Reserved."
18. Section 6.1(a) of the Credit Agreement is hereby amended
to read as follows:
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"(a) mortgages, deeds of trust, pledges, liens, security
interests and assignments in existence on the Second Amendment Effective
Date and listed in Schedule 6.1 attached to the Second Amendment (other
than those described in subsection (f) securing indebtedness for
borrowed money on the Second Amendment Effective Date);"
19. Section 6.1(f) of the Credit Agreement is hereby amended
to read as follows:
"(f) purchase money mortgages, liens or security interests,
including conditional sale agreements or other title retention
agreements and leases which are in the nature of title retention
agreements, upon or in property of the Borrower or any of its
Subsidiaries, or mortgages, liens or security interests existing in such
property at the time of the acquisition thereof; provided that no such
mortgage, lien or security interest extends or shall extend to or cover
any property of the Borrower or any of its Subsidiaries other than the
property then being acquired and fixed improvements then or thereafter
erected thereon."
20. Section 6.2 of the Credit Agreement is hereby amended to
read as follows:
"Section 6.2. Indebtedness. The Borrower will not, and will not
permit any Subsidiary to, incur, create, assume, permit or suffer to
exist, any indebtedness or liability on account of deposits or advances
or any indebtedness for borrowed money, or any other indebtedness or
liability evidenced by notes, bonds, debentures or similar obligations,
except:
(a) Obligations arising hereunder;
(b) Capitalized Lease Liabilities and indebtedness
of the Borrower or its Subsidiaries secured by security
interests permitted by Section 6.1(f) in an aggregate amount not
to exceed $5,000,000 at any time;
(c) indebtedness of Borrower in connection with the
IDRB Financing, including, without limitation, the indebtedness
or reimbursement obligations of Borrower with respect to the
IDRB Letter of Credit;
(d) indebtedness or reimbursement obligations of the
Borrower and/or any of its Subsidiaries with respect to any
documentary letter of credit facility in an amount not to exceed
$250,000 now or hereafter established by Xxxxx Fargo for the
Borrower and/or any such Subsidiary, including any present or
future extension, renewal or modification thereof permitted by
Xxxxx Fargo;
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(e) Subordinated Debt, or renewals thereof, provided
that (a) it is subordinated to the prior payment of all
indebtedness, reimbursement obligations and guaranties of the
Borrower and its Subsidiaries in favor of the Banks on terms and
conditions approved in writing by the Banks and (b) the
aggregate amount of Subordinated Debt at any one time
outstanding does not exceed $5,000,000 (Subordinated Debt as of
the Second Amendment Effective Date as reflected in Schedule 6.2
attached to the Second Amendment);
(f) an unsecured irrevocable standby letter of
credit issued in the original amount of $1,669,918 by Xxxxx
Fargo in favor of Firstar Bank of Minnesota, National
Association, for the account of Fluoroware PEI, Inc., as the
same is now and may hereafter be amended from time to time;
(g) Rate Hedging Obligations covering national
amounts not exceeding $10,000,000 in the aggregate at any one
time;
(h) Indebtedness for borrowed money in foreign
currencies in an aggregate principal amount not to exceed at any
time $30,000,000 (outstanding indebtedness for borrowed money in
foreign currencies as of the Second Amendment Effective Date is
reflected in Schedule 6.2 attached to the Second Amendment); and
(i) Indebtedness for borrowed money not permitted by
any other subsection of this Section 6.2 in an aggregate
principal amount not to exceed at any time $10,000,000.
21. Section 6.3(d) of the Credit Agreement is hereby amended
to read as follows:
"(c) guaranties, endorsements and other direct or contingent
liabilities in connection with the obligations of other Persons in
existence on the Second Amendment Effective Date and listed in Schedule
6.3 attached to the Second Amendment;"
22. Section 6.3(d) of the Credit Agreement is hereby amended
to read as follows:
"(d) a guaranty given in favor of Xxxxx Fargo in connection
with the letter of credit permitted by Section 6.2(d)."
23. Section 6.4(g)(ii)(C) of the Credit Agreement is hereby
amended to read as follows:
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"(c) all consideration (whether in the form of cash paid,
indebtedness assumed or otherwise) given by the Borrower
and its Subsidiaries for acquisitions permitted under
this Section 6.4(g) shall not exceed an aggregate amount
of $25,000,000 during the fiscal year in which such
acquisition occurs, and"
24. Section 6.12 of the Credit Agreement is hereby amended
to read as follows:
"Section 6.12 Prohibition of Entering into Negative Pledge
Arrangements. The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any agreement or covenant with any Person
(other than with the Banks or Xxxxx Fargo), that prohibits the Borrower
or any of its Subsidiaries from creating, incurring, assuming or
suffering to exist mortgages, deeds of trust or other encumbrances on
any of its assets."
25. Section 9.3 of the Credit Agreement is hereby amended to
read as follows:
"Section 9.3 Addresses for Notices, Etc. Except as otherwise
expressly provided herein, all notices, requests, demands and other
communications provided for under the Loan Documents shall be in writing
and mailed or delivered to the applicable parties at their respective
addresses set forth on the execution pages of the Second Amendment, or,
as to each party, at such other address as shall be designated by such
party in a written notice to the other party complying as to delivery
with the terms of this Section 9.3. All such notices, requests, demands
and other communications, when delivered, shall be effective upon actual
delivery and when mailed, shall be effective when sent by nationally
recognized overnight mail courier or delivery service, addressed as
aforesaid, except that notices or requests to the Agent or any Bank
pursuant to any of the provisions of Article II shall not be effective
until received by the Agent or such Bank."
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The parties hereby agree that all references to the address of the Agent or
Xxxxx Fargo in any of the Exhibits to the Credit Agreement or in any other Loan
Document are hereby amended to refer to the address specified for the Agent and
Xxxxx Fargo on the signature page of this Amendment.
26. This Amendment shall become effective when the Agent
shall have received the following, each in form and content acceptable to the
Agent in its sole discretion:
(a) This Amendment duly executed on behalf of the Borrower,
the Banks and the Agent, with all schedules completed and attached
thereto;
(b) A certified copy of the resolutions of the board of
directors of the Borrower, evidencing approval of this Amendment;
(c) A signed copy of a certificate of the Secretary or an
Assistant Secretary of the Borrower, which shall certify the names of
the officers of such Borrower authorized to sign this Amendment and the
other documents or certificates to be delivered pursuant to this
Agreement, including requests for Advances and Eurodollar Rate Fundings,
together with the true signatures of such officers. The Agent and each
Bank may conclusively rely on such certificates until they shall receive
a further certificate of the Secretary or an Assistant Secretary of the
Borrower canceling or amending the prior certificate and submitting the
signatures of the officers named in such further certificate;
(d) A Certificate of good standing of the Borrower, dated
not more than thirty (30) days prior to the date hereof, and evidence
satisfactory to the Agent that the Borrower is qualified to conduct its
businesses in each state where it presently conducts such business;
(e) Certified Articles of Merger from all appropriate
jurisdictions which establish that Fluoroware, Inc. and Empak, Inc. have
been merged into the Borrower, with the Borrower as the surviving
entity.
(f) Current searches of appropriate filing offices showing
that no state or federal tax liens have been filed and remain in effect
against the Borrower (or Fluoroware, Inc. or Empak, Inc.), and that no
financing statements or other notifications or filings have been filed
and remain in effect against the Borrower (or Fluoroware, Inc. or Empak,
Inc.), other than those for which the Agent has received an appropriate
release, termination or satisfaction or those permitted in accordance
with Section 6.1 of the Credit Agreement, as amended by this Amendment;
(g) A signed copy of an opinion of counsel for the Borrower,
addressed to the Agent and the Banks;
-14-
(h) Copies of all promissory notes evidencing Subordinated
Debt in existence on the date of this Amendment, together with
subordination agreements executed on behalf of all of such subordinated
creditors in favor of the Agent and the Banks in form and content
acceptable to the Agent in its sole discretion.
27. Except as amended by this Amendment, all of the terms
and conditions of the Credit Agreement and the other Loan Documents shall remain
in all other respects in full force and effect.
28. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
counterparts taken together shall constitute but one and the same instrument.
29. The Borrower hereby absolutely and unconditionally
releases and forever discharges the Agent and each of the Banks, and any and all
participants, parent corporations, subsidiary corporations, affiliated
corporations, insurers, indemnitors, successors and assigns thereof, together
with all of the present and former directors, officers, agents and employees of
any of the foregoing (the "Released Parties"), from any and all claims, demands
or causes of action of any kind, nature or description, whether arising in law
or equity or upon contract or tort or under any state or federal law or
otherwise, which the Borrower has had, now has or has made claim to have against
such Released Party for or by reason of any act, omission, matter, cause or
thing whatsoever arising from the beginning of time to and including the date of
this Amendment in connection with or related to the transactions evidenced by
the Loan Documents, whether such claims, demands and causes of action are mature
or unmatured or known or unknown.
30. The execution of this Amendment shall not be deemed to
be a waiver of any Default or Event of Default under the Credit Agreement,
whether or not known to the Agent and/or the Banks and whether or not existing
on the date of this Amendment.
31. The Borrower hereby represents and warrants to the Agent
and the Banks as follows:
(a) The Borrower has all requisite power and authority to
execute this Amendment and to perform all of its obligations under the
Credit Agreement, as amended by this Amendment, and the Credit
Agreement, as amended by this Amendment, and the other Loan Documents
executed on behalf of the Borrower have been duly executed and delivered
by the Borrower and constitute the legal, valid and binding obligations
of the Borrower, enforceable in accordance with their respective terms.
(b) The execution, delivery and performance by the Borrower
of the Credit Agreement, as amended by this Amendment, and the other
Loan Documents executed
-15-
on behalf of the Borrower have been duly authorized by all necessary
corporate action and do not (i) require any authorization, consent or
approval by any governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, (ii) violate any
provision of any law, rule or regulation or of any order, writ,
injunction or decree presently in effect, having applicability to the
Borrower, or the Articles of Incorporation or By-laws of the Borrower,
or (iii) result in a breach of or constitute a default under any
indenture or loan or credit agreement or any other agreement, lease or
instrument to which the Borrower is a party or by which it or its
properties may be bound or affected.
(c) All of the representations and warranties contained in
Article IV of the Credit Agreement are correct on and as of the date
hereof as though made on and as of such date, except to the extent that
such representations and warranties relate solely to an earlier date.
32. References. All references in the Credit Agreement to
"this Agreement" shall be deemed to refer to the Credit Agreement as amended by
this Amendment; and any and all references in any of the other Loan Documents to
the "Credit Agreement" shall be deemed to refer to the Credit Agreement as
amended by this Amendment. All references in the Credit Agreement to "Norwest"
are hereby amended to be references to "Xxxxx Fargo" as defined in this
Amendment. All references in the Credit Agreement to "Commitment Fee Percentage"
are hereby amended to be references to "Unused Commitment Fee Percentage" as
defined in this Amendment. All references in the Credit Agreement to "Schedule
4.4" are hereby amended to be references to Schedule 4.4 attached to this
Amendment. All references in the Credit Agreement to "Schedule 6.1" are hereby
amended to be references to Schedule 6.1 attached to this Amendment.
-16-
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized
as of the date first above written.
Address: ENTEGRIS, INC.
0000 Xxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxx 00000
Attn: Xxxx Villas By /s/ Xxxx Villas
Telecopy No. (000) 000-0000 --------------------------------------
Its Chief Financial Officer
---------------------------------
And
By /s/ Xxxxx Xxxxxxxxx
--------------------------------------
Its Chief Executive Officer
---------------------------------
Address: XXXXX FARGO BANK, NATIONAL
0000 Xxxxxx Xxxxxx Xxxxx ASSOCIATION, , as Bank and as Agent
MAC X0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Telecopy No. (000) 000-0000
Revolving Commitment: $10,000,000 By /s/ Xxxxxxx X. Xxxxxxxx
Percentage: 50% --------------------------------------
Its Vice President
---------------------------------
Address: XXXXXX TRUST AND SAVINGS BANK, as
000 Xxxx Xxxxxx Xxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxx
Telecopy No. (000) 000-0000
Revolving Commitment: $10,000,000 By /s/ Xxxx X. Xxxxxxx
Percentage: 50% --------------------------------------
Its Vice President
---------------------------------
Signature Page to Second Amendment to Credit Agreement
EXHIBIT A TO
SECOND AMENDMENT
REVOLVING NOTE
$10,000,000 Minneapolis, Minnesota
March 1, 2002
FOR VALUE RECEIVED, the undersigned, ENTEGRIS, INC., a Minnesota
corporation (the "Borrower"), hereby promises to pay to the order of
________________ (the "Bank"), at the main office of Xxxxx Fargo Bank, National
Association, as Agent (herein, in such capacity, the "Agent"), in Minneapolis,
Minnesota, or at any other place designated at any time by the holder hereof, in
lawful money of the United States of America and in immediately available funds,
the principal sum of Ten Million Dollars ($10,000,000) or, if less, the
aggregate unpaid principal amount of all Revolving Advances made by the Bank to
the Borrower under the Credit Agreement (defined below), together with interest
on the principal amount hereunder from the date hereof until this Note is fully
paid at the rates from time to time in effect under the Credit Agreement dated
as of November 30, 1999, by and among the Borrower, the Agent, the Bank and the
various other banks as therein described, as amended by a First Amendment to
Credit Agreement dated as of October 17, 2000 and as amended by a Second
Amendment to Credit Agreement of even date herewith (as the same may hereafter
be amended, supplemented or restated from time to time, the "Credit Agreement").
The principal hereof and interest accruing thereon shall be due and
payable as provided in the Credit Agreement. This Note may be prepaid only in
accordance with the Credit Agreement.
This Note is issued pursuant to, and is subject to, the Credit
Agreement, which provides, among other things, for acceleration hereof upon the
occurrence of certain events. This Note is a Revolving Note as referenced in the
Credit Agreement. This Note is issued in replacement of, and in substitution
for, but not in payment of, that certain Revolving Note of the Borrower dated
November 30, 1999, payable to the order of the Bank in the original principal
amount of $15,000,000.
The Borrower hereby agrees to pay all costs of collection, including
attorneys' fees and legal expenses in the event this Note is not paid when due,
whether or not legal proceedings are commenced.
A-1
Presentment or other demand for payment, notice of dishonor and
protest are expressly waived.
ENTEGRIS, INC.
By __________________________________
Its_______________________________
And
By __________________________________
Its_______________________________
A-2
EXHIBIT B TO
SECOND AMENDMENT
Certificate of Chief Financial Officer as to Annual Financial Statements
TO: Xxxxx Fargo Bank,
National Association, as Agent
0000 Xxxxxx Xxxxxx Xxxxx
XXX X0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Date: __________________, _____
Re: Audited Annual Financial Statements - Entegris, Inc. (the "Borrower")
We refer to the Credit Agreement dated as of November 30, 1999 (as
amended or modified to date, the "Credit Agreement") among the Borrower, certain
banks named therein (the "Banks") and Xxxxx Fargo Bank, National Association, as
Agent for such Banks. Capitalized terms used herein but not otherwise defined
shall have the same meanings assigned to them in the Credit Agreement.
I am the duly qualified and acting Chief Financial Officer of the
Borrower, and I am familiar with the financial statements and financial affairs
of the Borrower and its Subsidiaries and am authorized to execute this
Certificate on behalf of the Borrower.
Pursuant to Section 5.1(a) of the Credit Agreement, attached are the
audited financial statements of the Borrower and its Subsidiaries prepared by
_________________ as of and for the fiscal year ended ______________, ____. I
certify that such financial statements have been prepared in accordance with
GAAP, fairly present the financial condition of the Borrower and its
Subsidiaries and the results of the operations of the Borrower and its
Subsidiaries for the period then ended, and conform to the requirements of
Section 5.1(a) of the Credit Agreement. I further certify that I have obtained
no knowledge,
B-1
except as specifically stated in the attachment hereto, of any Default
or Event of Default.
ENTEGRIS, INC.
By __________________________________
Its_______________________________
And
By __________________________________
Its_______________________________
B-2
EXHIBIT C TO
SECOND AMENDMENT
Certificate of Chief Financial Officer as to Fiscal Quarter Financial Statements
TO: Xxxxx Fargo Bank,
National Association, as Agent
0000 Xxxxxx Xxxxxx Xxxxx
XXX X0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Date: __________________, ______
Re: Fiscal Quarter Financial Statements - Entegris, Inc. (the "Borrower")
We refer to the Credit Agreement dated as of November 30, 1999 (as
amended or modified to date, the "Credit Agreement") among the Borrower, certain
banks named therein (the "Banks") and Xxxxx Fargo Bank, National Association, as
Agent for such Banks. Capitalized terms used herein but not otherwise defined
shall have the same meanings assigned to them in the Credit Agreement.
I am the duly qualified and acting Chief Financial Officer of the
Borrower, and I am familiar with the financial statements and financial affairs
of the Borrower and its Subsidiaries and am authorized to execute this
Certificate on behalf of the Borrower.
Pursuant to Section 5.1(b) of the Credit Agreement, attached are the
required unaudited financial statements of the Borrower and its Subsidiaries as
of __________________ (the "Covenant Computation Date"). I certify that such
financial statements have been prepared in accordance with GAAP, fairly present
the financial condition of the Borrower and its Subsidiaries as of the Covenant
Computation Date and the results of the operations of the Borrower and its
Subsidiaries for the period then ended, subject to year-end adjustments, and
conform to the requirements of Section 5.1(b) of the Credit Agreement.
Events of Default. (Check one):
[_] The undersigned does not have knowledge of the occurrence of a
Default or Event of Default under the Credit Agreement.
[_] The undersigned has knowledge of the occurrence of a Default or
Event of Default under the Credit Agreement and attached hereto is a
statement of the facts with respect to thereto.
A. Floating Rate Margin, Eurodollar Rate Margin and Commitment Fee
Percentage. I further certify that:
1. Ratio of Total Funded Debt to EBITDA as of Covenant Computation
Date. The applicable Ratio of Total Funded Debt to EBITDA for the Covenant
Computation Date is _____ to 1.00.
C-1
2. Floating Rate Margin. Commencing on the first day of the first
month following the applicable Quarterly Financial Statement Due Date, the
Floating Rate Margin shall be _______%.
3. Eurodollar Rate Margin. Commencing on the first day of the
first month following the applicable Quarterly Financial Statement Due
Date, the Eurodollar Margin shall be _________%.
4. Unused Commitment Fee Percentage. Commencing on the first day
of the first month following the applicable Quarterly Financial Statement
Due Date, the Unused Commitment Fee Percentage shall be __________%.
B. Financial Covenants. I further hereby certify as follows:
1. Fixed Charge Coverage Ratio. Pursuant to Section 5.8 of the
Credit Agreement, as of the Covenant Computation Date, the Fixed Charge
Coverage Ratio of the Borrower and its Subsidiaries was _____ to 1.00 which
[_] satisfies [_] does not satisfy the requirement that such ratio be not
less than 1.50 to 1.00 on the Covenant Computation Date.
2. Leverage Ratio. Pursuant to Section 5.9 of the Credit
Agreement, as of the Covenant Computation Date, the Leverage Ratio of the
Borrower and its Subsidiaries was _____ to 1.00 which [_] satisfies [_]
does not satisfy the requirement that such ratio be not more than the ____
to 1.00 on the Covenant Computation Date.
3. Minimum Tangible Net Worth. Pursuant to Section 5.10 of the
Credit Agreement, as of the Covenant Computation Date, the Tangible Net
Worth of the Borrower and its Subsidiaries was $___________ which [_]
satisfies [_] does not satisfy the requirement that the Borrower's Tangible
Net Worth be not less than the Required Tangible Net Worth Amount on the
Covenant Computation Date.
Set forth on Schedule I attached hereto are all relevant facts in
reasonable detail to evidence and to compute (A) the Ratio of Total Funded Debt
to EBITDA of the Borrower and its Subsidiaries for purposes of establishing the
appropriate Floating Rate Margin, Eurodollar Rate Margin and Unused Commitment
Fee Percentage and (B) whether or not the Borrower is in compliance with the
financial covenants referred to above.
ENTEGRIS, INC.
By __________________________________
Its_______________________________
And
By __________________________________
Its_______________________________
C-2
SCHEDULE 4.4 TO
SECOND AMENDMENT
SCHEDULE OF SUBSIDIARIES OF THE BORROWER
Jurisdiction of
Name Ownership Incorporation
----------------------------------------------------------------------------
Entegris (Malaysia) Sdn Bhd 100% Malaysia
Entegris Korea 100% Korea
Empak/Hanbal Korea, Inc. 100% Korea
Entegris Europe, GmbH 100% Germany
Nippon Fluoroware, K.K. 100% Japan
Entegris Custom Products, Inc. 100% Minnesota
Fluoroware Jamaica, FSC 100% Jamaica
Empak, FSC 100% Barbados
Fluoroware South East Asia, Ltd Pte 100% Singapore
Entegris Pte, Ltd. 100% Singapore
Fluoroware Valqua Japan, K.K. 100% Japan
Etechno, K.K. 100% Japan
OregonLabs, LLC 94% Minnesota
SCHEDULES 6.1, 6.2 AND 6.3 TO
SECOND AMENDMENT
EXHIBIT 6.1, 6.2, & 6.3
Xxxxx Fargo/Xxxxxx Revolving Line of Credit
March 1, 2002
----------------
LONG-TERM DEBT
----------------
Total Current
FX Rate Entity Secured/Guarantee Rate Debt 2002
--------------------------------------------------------------------------------------------------------------------------
Entegris Xxx Zitzioff No/Subordinated 9% 295,116 47,988
Xxxxx Zitzioff No/Subordinated 9% 238,559 38,734
Xxx Xxxxxxxxxx No/Subordinated 8% 3,093,115 232,388
--------------------------------------------
Total Entegris 3,626,790 319,110
--------------------------------------------
0.4669 GmbH Commerzbank HN Specific Bldgs/Equip 6% 259,359 51,879
Commerzbank HN Specific Bldgs/Equip 5.25% 171,175 34,241
Commerzbank HN Specific Bldgs/Equip 5% 73,524 18,386
Commerzbank HN Specific Bldgs/Equip 5% 462,673 115,668
Commerzbank HN Specific Bldgs/Equip 5% 1,155,516 210,094
--------------------------------------------
Total GmbH 2,122,247 430,268
--------------------------------------------
0.0083 Nippon Japan Finance Corp Specific Bldgs/Equip 3.15% 1,805,480 125,894
Yamagata Bank Specific Equip 2.13% 131,947 90,166
Yamagata Bank Specific Equip 2.98% 14,987 14,987
Yamagata Bank Specific Bldgs/Equip 2.20% 788,936 238,458
Yamagata Bank Specific Bldgs/Equip 2.30% 358,448 150,457
--------------------------------------------
Total Nippon 3,099,799 619,962
--------------------------------------------
CP IRB Specific Bldg/Equip & 2.35%-5.90% 1,250,000 100,000
--------------------------------------------
Total XX Xxxxx Fargo LOC 1,250,000 100,000
--------------------------------------------
0.0083 Techno Loan #3 Specific Assets 1.68% 149,874 49,958
--------------------------------------------
Total Techno 149,874 49,958
--------------------------------------------
Entegris Xxxxxxxx & Xxxxxx Xxxx No 0 287,500 150,000
from Atcor Shinsho America Specific Equip 6% 41,852 30,689
Ford Credit Specific Equip 10.80% 23,335 8,581
* The CIT Group Specific Equip 10.90% 24,440 11,573
* General Electric Capital Specific Equip 8% 61,669 61,669
* Trinity Capital Specific Equip 14.40% 5,370 3,454
--------------------------------------------
Total Atcor 444,166 265,966
--------------------------------------------
Entegris SBA Loan 2 Specific Bldg 7.30% 976,639 24,497
from CCS SBA Loan 1 Specific Bldg Variable [less than] 5% 1,986,336 156,000
* Capital Lease Bank of West Specific Equip 12.56% 144,428 27,081
* Capital Lease American Cap Specific Equip 12.68% 78,227 15,008
* Capital Lease Bank of West Specific Equip 10.25% 71,779 12,710
* Capital Lease Xxxxxxxx Specific Equip 11.51% 178,137 39,556
* Capital Lease Alliance Specific Equip 18.51% 67,294 11,773
* Capital Lease Pacifica Specific Equip 13.58% 201,687 37,193
* Capital Lease OFC Specific Equip 22.68% 67,810 15,748
* Capital Lease MSM Capital Specific Equip 21.00% 69,148 21,072
--------------------------------------------
Total CCS 3,841,487 360,637
--------------------------------------------
--------------------------------------------
Total Long-Term Debt 14,534,363 2,145,900
--------------------------------------------
----------------
SHORT-TERM DEBT
----------------
Available Total Current
FX Rate Entity Bank Line of credit Debt 2002
--------------------------------------------------------------------------------------------------------------------------
0.0080 NFL-XX Xxxxxxxx Bank Specific Assets 804,600 - -
0.2632 Malaysia-LC Affin Bank Berhad Specific Assets 657,895 - -
0.0080 FVJ-XX Xxx-ichi Kangyo Bank Specific Assets 3,178,170 1,448,280 1,448,280
0.0080 Bank of Tokyo-Mitsubishi Specific Assets 3,218,400 1,448,280 1,448,280
0.0080 Mitsui Sumitomo Specific Assets 1,609,200 1,448,280 1,448,280
0.0080 Sanwa Specific Assets 1,206,900 302,140 302,140
0.0080 Etechno-LC Bank of Tokyo Mitsubishi Specific Assets/U.S. 2,000,000 804,600 804,600
Xxxxxxxxx
0.0000 Xxxxxxx-XX Commerzbank Specific Assets 1,755,772 438,943 438,943
0.0080 FVJ-Other Bank of Tokyo Mitsubishi Specific Assets Term Loan 257,472 257,472
0.0080 Dai-ichi Kangyo Bank Specific Assets Term Loan 337,932 337,932
0.0080 Fuji Bank Specific Assets Term Loan 1,705,752 1,705,752
0.0080 Asahi Bank Specific Assets Term Loan 402,300 402,300
0.0080 Sanwa Bank Specific Assets Term Loan 1,476,441 1,476,441
--------------
--------------------------------------------
Total Short-Term Debt 14,430,937 10,070,420 10,070,420
============================================
----------------------------------------------------------------------------------------------------
Total Entegris Consolidated Debt 24,604,783 12,216,321
====================================================================================================
