EXHIBIT 10.30
SEVENTH MODIFICATION AGREEMENT
OF
LOAN AGREEMENT
BETWEEN
INTEGRATED PROCESS EQUIPMENT CORP.,
IPEC CLEAN, INC.,
IPEC PRECISION, INC.
IPEC PLANAR, INC.,
FORMERLY KNOWN AS IPEC PLANAR PHOENIX, INC.,
SUCCESSOR BY MERGER TO IPEC PLANAR PORTLAND, INC.,
AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
SUCCESSOR-BY-MERGER TO FIRST INTERSTATE BANK OF ARIZONA, N.A.,
INDIVIDUALLY AND AS AGENT
DATED AS OF SEPTEMBER 11, 1997
RECITALS:
--------
A. INTEGRATED PROCESS EQUIPMENT CORP., a Delaware corporation ("Parent"),
together with IPEC CLEAN, INC., IPEC PRECISION, INC., IPEC PLANAR, INC.,
formerly known as IPEC PLANAR PHOENIX, INC., successor by merger to IPEC PLANAR
PORTLAND, INC. (collectively, together with Parent, hereinafter "BORROWERS") and
XXXXX FARGO BANK, NATIONAL ASSOCIATION, successor-by-merger to FIRST INTERSTATE
BANK OF ARIZONA, N.A. ("XXXXX FARGO") (XXXXX FARGO and any other lender who
becomes a party hereto under subsection 12.6 of the Loan Agreement being herein
referred to collectively as the "Banks" and individually as a"Bank"), and XXXXX
FARGO as agent for the Banks (in such capacity, together with any successor
agent appointed hereunder, the "Agent"), are parties to that certain Loan
Agreement, made and entered into as of April 24, 1996, and thereafter amended
from time to time (collectively, the "Loan Agreement").
B. Borrowers, Bank and Agent have agreed to modify the Loan Agreement as
hereinafter set forth.
AGREEMENT:
---------
NOW, THEREFORE, for due and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS.
Words and terms defined in the Loan Agreement shall have the same meanings
when used in this Seventh Modification Agreement, except as otherwise indicated.
"Seventh Modification" means this Seventh Modification Agreement of the Loan
Agreement.
2. PRIOR LOAN AGREEMENTS.
2.1 Prior Loan Agreements Acknowledgments. Borrowers acknowledge
-------------------------------------
with respect to the amounts owing to Bank under the Loan Documents that
Borrowers have no offset, defense or counterclaim with respect thereto, no claim
or defense in abatement or reduction thereof, nor any other claim against Bank
or with respect to any document forming part of the transaction in respect of
which the Loan Documents were made or forming part of any other transaction
under which Borrowers are indebted to Bank. Borrowers acknowledge that all
interest imposed under the Loan Documents through the date hereof, and all fees
and other charges that have been collected from or imposed upon Borrowers with
respect to the Loans evidenced by the Loan Documents were and are agreed to, and
were properly computed and collected.
2.2 Release. Borrowers, effective on and from the date of this
-------
Agreement, do hereby unconditionally, absolutely and irrevocably release Bank
and its respective employees, agents (including Agent) and officers from any and
all Claims (as the term is defined in this Section 2.3) and defenses against
them or any of them, and agree that Bank and its respective employees, agents
and officers shall have no liability to Borrowers by reason of anything
occurring prior to the date of this Agreement. Accordingly, this Agreement is
made to compromise, resolve, settle, and terminate all actual and potential
Claims by reason of anything occurring prior to the date of this Agreement. The
term "Claims" as used in this Section 2.3 means all claims, complaints, demands,
causes of action, damages, costs, expenses, fees, and all other debts,
liabilities or obligations of every sort and description, direct and indirect,
fixed or contingent, known or unknown, and whether or not liquidated, arising
out of, caused by, or otherwise related in any way to events or transactions
occurring prior to the date of this Agreement between or affecting any of the
parties hereto. Borrowers agree that this general release extends to Claims
which Borrowers may not know of or suspect to exist in their favor at the time
of executing this release, and Borrowers specifically waive the provisions of
any law to the contrary.
3. ADDITIONAL CONSIDERATION FOR MODIFICATION.
In consideration of the modification as herein stated, Borrowers shall
reimburse Agent and Bank for all of the Agent's and Bank's unreimbursed legal
expenses incurred in connection with this Seventh Modification.
-2-
4. MODIFICATION OF LOAN AGREEMENT.
4.1 Additions to the Definitions and Miscellaneous Provisions
---------------------------------------------------------
Section. In the Definitions and Miscellaneous Provisions Section:
(i) add the following definition:
"Convertible Subordinated Notes" means the Convertible
------------------------------
Subordinated Notes of the Parent due 2004 in an aggregate principal
amount not to exceed $115,000,000 issued pursuant to an Indenture
dated on or about September 10, 1997 between Parent and State Street
Bank and Trust Company, as indenture trustee.
(ii) the definition of "Permitted Indebtedness" is hereby
amended and restated in its entirety by replacing the existing definition with
the following:
"Permitted Indebtedness": Any Indebtedness identified on Schedule
----------------------
1.3(a) hereto, Indebtedness not so identified but which does not
exceed $100,000 in aggregate principal amount on the date of the Loan
Agreement, Indebtedness secured by Liens described in clauses (3) and
(4) of the definition of "Permitted Liens," and the Indebtedness
outstanding from time to time under the Convertible Subordinated
Notes.
(iii) the definition of "Restricted Payment" is hereby amended by
adding the following phrase prior to the period at the end of such definition:
; provided, however, that (i) the Parent may honor conversions of the
Convertible Subordinated Notes in accordance with their terms
(including by paying nominal amounts representing partial shares), and
(ii) on or after September 1, 2000, the Parent may call the
Convertible Subordinated Notes for redemption in accordance with their
terms, and to the extent the Convertible Subordinated Notes are not
converted prior to the redemption date, redeem such Convertible
Subordinated Notes.
(iv) the definition of "Leverage Ratio" is hereby amended by
adding the following phrase prior to the period at the end of such definition:
; provided, however, that Indebtedness of the Parent under the
Convertible Subordinated Notes shall not be considered "Funded Debt"
for purposes of the Leverage Ratio.
-3-
4.2 Amendment to Section 9.6. Section 9.6 is hereby amended and
------------------------
restated in its entirety by replacing the existing Section 9.6 with the
following:
9.6 Indebtedness. Borrowers shall not create, incur or suffer
------------
to exist any Indebtedness other than Permitted Indebtedness.
4.3 Amendment to Section 10.1(e). Section 10.1(e) is hereby amended
----------------------------
by adding the following at the end of the first sentence thereof prior to the
period:
; provided, however, the following shall not constitute an Event of
Default under this clause(e): (i) the Parent's honoring conversions
of the Convertible Subordinated Notes in accordance with their terms
(including by paying nominal amounts representing partial shares), and
(ii) on or after September 1, 2000, the Parent's calling the
Convertible Subordinated Notes for redemption in accordance with their
terms, and to the extent the Convertible Subordinated Notes are not
converted prior to the redemption date, redeem such Convertible
Subordinated Notes.
5. AFFIRMATIONS AND ACKNOWLEDGMENTS.
5.1 Designated Senior Indebtedness. Borrowers, the Bank and the
------------------------------
Agent hereby confirm that the Indebtedness of the Parent under the Loan
Documents shall constitute "Designated Senior Indebtedness" for purposes of the
Convertible Subordinated Notes and the Indenture governing the Convertible
Subordinated Notes (the "Indenture") to the extent permitted by the Convertible
Subordinated Notes and the Indenture.
5.2 Change of Certain Officer. Agent and the Banks hereby agree that
-------------------------
Xxxxx X. XxXxxxxx'x serving as President and Chief Executive Officer of the
Parent shall not constitute a default under Section 9.18 of the Loan Agreement
and hereby waive any existing default resulting from his serving in such
capacity.
5.3 Reaffirmations and Certifications. Borrowers reaffirm and/or
---------------------------------
certify to the Bank: (i) the accuracy in all material respects, as of the date
hereof, of all of the respective representations and warranties made by
Borrowers in the Loan Documents except as has been disclosed in writing to
Agent; (ii) Borrowers are in compliance in all material respects with the
covenants, agreements and conditions of the Loan Agreement; (iii) no Default or
Potential Default has occurred or is existing (or, if a Default or Potential
Default exists, a description of such Default or Potential Default and the
action being taken or proposed to be taken with respect thereto) has been given
to the Agent; (iv) there exists no event or occurrence including any litigation
or proceeding affecting Borrowers, which has caused or would cause any Material
Adverse Effect on (a) the business, assets, financial condition, results of
operations, or cash flow of Borrowers, taken as a whole, in each case from that
represented to exist in the financial statements that have been furnished to the
Agent, or (b) the current or prospective ability of Borrowers to perform any of
their payment or other material obligations under the Loan Agreement and each
other
-4-
Loan Documents; (v) Borrowers continue to have good and marketable title
to or valid leasehold interests in the Collateral, free and clear of all Liens,
encumbrances and claims whatsoever, except for the Permitted Liens; (vi) no
financing statement, security agreement or other public notice covering the
Collateral is on file or on record in any public office, except such as have
been filed in favor of the Agent, for the benefit of the Banks, pursuant to this
Security Agreement, or as may evidence a Permitted Lien, or as otherwise allowed
by the Loan Documents; (vii) Agent, for the benefit of the Banks, has a valid
and perfected first priority security interest in the Collateral (as that term
is defined in the Security Agreement between Parent and First Interstate Bank of
Arizona, N.A., dated April 24, 1996); and (viii) all actions necessary to be
taken by Borrowers' respective Boards of Directors have been taken to authorize
and approve this Agreement.
5.4 No Waiver. By entering into this Seventh Modification Agreement,
---------
the Bank does not waive any existing Default, other than as expressly provided
herein, of which it is unaware or any Default hereafter occurring, or become
obligated to waive any condition or obligation in any agreement between or among
the parties hereto. As of the making of this Seventh Modification Agreement,
the Bank is not aware of any existing Default.
5.5 Miscellaneous. Borrowers agree: (a) to provide and execute as
-------------
necessary all other documents reasonably required by Agent and Bank to give
effect to this Seventh Modification Agreement, including documents necessary to
the continued perfection of security interests previously granted by Borrowers;
(b) this Seventh Modification Agreement is not intended for and shall not be
construed for the benefit of any party not a signatory hereto; (c) this Seventh
Modification Agreement shall be binding upon, and inure to the benefit of the
parties hereto and their respective successors and assigns; (d) this Seventh
Modification Agreement constitutes the entire agreement (including all
representations and promises made) among the parties with respect to the subject
matter hereof and no modification or waiver shall be effective unless in writing
and signed by the party to be charged; and, (e) time is of the essence hereof.
-5-
IN WITNESS WHEREOF, the undersigned have executed this Seventh
Modification Agreement as of the day and year first above written.
"BORROWERS":
INTEGRATED PROCESS EQUIPMENT CORP.
By /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: V.P. & C.F.O.
IPEC CLEAN, INC.
By /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: V.P. & C.F.O.
IPEC PRECISION, INC.
By /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: V.P. & C.F.O.
-6-
IPEC PLANAR, INC.,
formerly known as IPEC Planar Phoenix, Inc.,
successor by merger to IPEC Planar Portland,
Inc.
By /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: V.P. & C.F.O.
"AGENT":
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
successor-by-merger to FIRST INTERSTATE BANK
OF ARIZONA, as Agent
By /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Vice President
"BANK":
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
successor-by-merger to FIRST INTERSTATE BANK
OF ARIZONA
By /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Vice President
Address for Notices:
Xxxxx Fargo Bank, National Association
Xxxx Xxxxxx Xxx 00000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxx
Regional Commercial Banking Office
MAC 4101-251
Telefacsimile: (000) 000-0000
-7-
