EXHIBIT 10.37
AMENDMENT NO. 1 TO THE
THREE YEAR CREDIT AGREEMENT
AMENDMENT NO. 1 TO THE THREE YEAR CREDIT AGREEMENT, dated as of
September 17, 2004 (the "Amendment") among APPLIED MATERIALS, INC., a Delaware
corporation (the "Borrower"), the banks, financial institutions and other
institutional lenders parties to the Credit Agreement referred to below
(collectively, the "Lenders") and CITICORP USA, INC., as administrative agent
(the "Agent") for the Lenders.
WITNESSETH:
(1) WHEREAS, reference is made to that certain Three Year Credit
Agreement dated as of September 19, 2003, among the Borrower, the Lenders,
CitiGroup Global Markets Inc. and KeyBank National Association ("KeyBank"), as
joint arrangers, KeyBank, as syndication agent, BNP Paribas and Mizuho Corporate
Bank, Ltd., as co-documentation agents and the Agent (as the same may be
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), pursuant to which the Lenders have extended and agreed to extend
credit to the Borrower on the terms and subject to the conditions set forth
herein. Capitalized terms not otherwise defined in this Amendment have the same
meanings as specified in the Credit Agreement;
(2) WHEREAS, the Borrower and the Required Lenders have agreed to
amend the Credit Agreement as hereinafter set forth;
(3) WHEREAS, the Required Lenders are, on the terms and conditions
stated below, willing to grant the request of the Borrower and the Borrower and
the Required Lenders have agreed to amend the Credit Agreement; and
(4) WHEREAS, in consideration of the mutual agreements herein
contained and good and valuable consideration, the sufficiency and receipt of
which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments to Credit Agreement. The Credit Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 2, hereby amended as follows:
(a) Section 1.01 is amended by inserting the following definition in
appropriate alphabetical order:
"`Patriot Act' means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Pub. L. 107-56."
(b) Section 3.02(i) is amended in full to read as follows:
"the representations and warranties contained in Section 4.01(other
than Section 4.01(d)(ii)) are correct on and as of the date of such Revolving
Credit Borrowing, before and
after giving effect to such Revolving Credit Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date, and".
(c) Section 5.02(e) is amended in full to read as follows:
"Intentionally omitted."
(d) Section 8.02(b) is replaced in its entirety with the following:
"The Borrower hereby agrees that, unless otherwise requested by the
Administrative Agent, it will provide to the Administrative Agent all
information, documents and other materials that it is obligated to furnish to
the Administrative Agent pursuant to this Agreement, including, without
limitation, all notices, financial statements, financial and other reports,
certificates and other required information materials, but excluding any such
communication that (i) relates to a request for an amendment or for a new, or a
conversion of an existing, borrowing or other extension of credit (including any
election of an interest rate or interest period relating thereto), (ii) relates
to the payment of any principal or other amount due under this Agreement prior
to the scheduled date therefor, (iii) provides notice of any default or event of
default under this Agreement, (iv) is required to be delivered to satisfy any
condition precedent to the effectiveness of this Agreement and/or any borrowing
or other extension of credit hereunder or (v) initiates or responds to legal
process (all such non-excluded information being referred to herein collectively
as the "Communications") by transmitting the Communications in an
electronic/soft medium (provided such Communications contain any required
signatures) in a format acceptable to the Administrative Agent to
xxxxxxxxxxxxxxx@xxxxxxxxx.xxx (or such other e-mail address designated by the
Administrative Agent from time to time).
Each party hereto agrees that the Administrative Agent may make the
Communications available to the Lenders by posting the Communications on
IntraLinks or another relevant website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent) (the "Platform"), provided that
the Administrative Agent agrees not to post certain non-public information at
the reasonable request of the Borrower. Nothing in this Section 8.02(b) shall
prejudice the right of the Administrative Agent to make the Communications
available to the Lenders in any other manner specified in the Credit Agreement.
Each Lender agrees that e-mail notice to it (at the address provided
pursuant to the next sentence and deemed delivered as provided in the next
paragraph) specifying that Communications have been posted to the Platform shall
constitute effective delivery of such Communications to such Lender for purposes
of this Agreement. Each Lender agrees (i) to notify the Administrative Agent in
writing (including by electronic communication) from time to time to ensure that
the Administrative Agent has on record an effective e-mail address for such
Lender to which the foregoing notice may be sent by electronic transmission and
(ii) that the foregoing notice may be sent to such e-mail address.
Each party hereto agrees that any electronic communication referred
to in this Section 8.02(b) shall be deemed delivered upon the posting of a
record of such communication
2
(properly addressed to such party at the e-mail address provided to the
Administrative Agent) as "sent" in the e-mail system of the sending party or, in
the case of any such communication to the Administrative Agent, upon the posting
of a record of such communication as "received" in the e-mail system of the
Administrative Agent; provided that if such communication is not so received by
the Administrative Agent during the normal business hours (Eastern Standard
Time) of the Administrative Agent, such communication shall be deemed delivered
at the opening of business on the next Business Day for the Administrative
Agent."
(e) Section 8.02(c) is replaced in its entirety with the following:
"Each party hereto acknowledges that (i) the distribution of
material through an electronic medium is not necessarily secure and that there
are confidentiality and other risks associated with such distribution, (ii) the
Communications and the Platform are provided "as is" and "as available," (iii)
none of the Administrative Agent, its affiliates nor any of their respective
officers, directors, employees, agents, advisors or representatives
(collectively, the "Citigroup Parties") warrants the adequacy, accuracy or
completeness of the Communications or the Platform , and each Citigroup Party
expressly disclaims liability for errors or omissions in any Communications or
the Platform, and (iv) no warranty of any kind, express, implied or statutory,
including, without limitation, any warranty of merchantability, fitness for a
particular purpose, non-infringement of third party rights or freedom from
viruses or other code defects, is made by any Citigroup Party in connection with
any Communications or the Platform."
(f) Article VIII is amended by adding thereto a new Section 8.13, to
read as follows:
"Patriot Act Notice. Each Lender and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrower that
pursuant to the requirements of the Patriot Act, it is required to obtain,
verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will
allow such Lender or the Administrative Agent, as applicable, to identify the
Borrower in accordance with the Patriot Act. The Borrower shall, and shall cause
each of its Subsidiaries to, provide, to the extent commercially reasonable,
such information and take such actions as are reasonably requested by the
Administrative Agent or any Lenders in order to assist the Administrative Agent
and the Lenders in maintaining compliance with the Patriot Act."
SECTION 2. Conditions of Effectiveness. This Amendment shall become
effective as of the date first above written when, and only when, the Agent
shall have received counterparts of this Amendment executed by the Borrower and
the Required Lenders or, as to any of the Lenders, advice satisfactory to the
Agent that such Lender has executed this Amendment. This Amendment is subject to
the provisions of Section 8.01 of the Credit Agreement.
SECTION 3. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized and validly
existing under the laws of the State of Delaware.
3
(b) The Borrower has all requisite power and authority and all
necessary licenses and permits to own and operate its properties and to
carry on its business as now conducted and as presently proposed to be
conducted, except where failures to have such licenses and permits would
not, in the aggregate, have a Material Adverse Effect.
(c) The Borrower is duly licensed or qualified and is in good
standing as a foreign corporation in each jurisdiction where in the nature
of the business transacted by it or the nature of the property owned or
leased by it makes such licensing or qualification necessary, except where
failures to be so licensed, qualified or in good standing would not, in
the aggregate, have a Material Adverse Effect.
(d) The execution, delivery and performance by the Borrower of
this Amendment and the Credit Agreement, as amended by this Amendment, are
within the Borrower's corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or
filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable law
or regulation or of the certificate of incorporation or by-laws of the
Borrower or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Borrower or any of its Subsidiaries or result
in the creation or imposition of any Lien on any asset of the Borrower or
any of its Subsidiaries.
(e) This Amendment and the Credit Agreement, as amended by
this Amendment, each constitutes a valid and binding agreement of the
Borrower enforceable against the Borrower in accordance with their terms,
except as limited by (i) bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) general principles of equity.
(f) There is no action, suit, investigation, litigation or
proceeding affecting the Borrower or any of its Subsidiaries (including,
without limitation, any Environmental Action) pending or to the knowledge
of the Borrower threatened before any court, governmental agency or
arbitrator that purports to affect the legality, validity or
enforceability of this Amendment and the Credit Agreement, as amended by
this Amendment.
(g) The consolidated balance sheet of the Borrower and its
Subsidiaries as of October 26, 2003 and the related consolidated
statements of operations and cash flows for the fiscal year then ended,
reported on by PricewaterhouseCoopers LLP and set forth in the Borrower's
2003 Form 10-K (or an exhibit thereto), a copy of which has been obtained
by each of the Lenders, fairly present, in conformity with generally
accepted accounting principles, the consolidated financial position of the
Borrower and its Subsidiaries as of such date and their consolidated
results of operations and cash flows for such fiscal year.
(h) There has been no material adverse change since October
26, 2003 in the business, financial position or results of operations of
the Borrower and its
4
Subsidiaries, considered as a whole, except as disclosed in the Borrower's
filings with the SEC prior to the date hereof.
(i) No Event of Default has occurred and is continuing.
SECTION 4. Reference to and Effect on the Credit Agreement. (a) On
and after the effectiveness of this Amendment, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof" or words of
like import referring to the Credit Agreement, and each reference in the
Notes to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to
the Credit Agreement, as amended by this Amendment.
(b) The Credit Agreement and the Notes, as specifically
amended by this Amendment, are and shall continue to be in full force and
effect and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of any Lender or the Agent under the
Credit Agreement, nor constitute a waiver of any provision of the Credit
Agreement.
SECTION 5. Costs and Expenses. The Borrower agrees to pay on demand
all costs and expenses of the Agent in connection with the preparation,
execution, delivery and administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder
(including, without limitation, the reasonable fees and expenses of counsel for
the Agent) in accordance with the terms of Section 8.04 of the Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 7. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date and year first above written.
APPLIED MATERIALS, INC.,
as Borrower
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
By /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Corporate Vice President
and Treasurer
CITICORP USA, INC.,
as Agent and as Lender
By /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
KEYBANK NATIONAL ASSOCIATION,
as Lender
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BNP PARIBAS,
as Lender
By /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
By /s/ Xxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Director
MIZUHO CORPORATE BANK, LTD.,
as Lender
By /s/ Xxxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
& Team Leader
BANK OF AMERICA, N.A.,
as Lender
By /s/ Xxxxx XxXxxxx
-----------------------------------------
Name: Xxxxx XxXxxxx
Title: Managing Director
MELLON BANK, N.A.,
as Lender
By /s/ Xxxxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: First Vice President
UNION BANK OF CALIFORNIA, N.A.,
as Lender
By /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
XXXXX FARGO BANK, N.A.,
as Lender
By /s/ Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
HSBC BANK USA, NATIONAL ASSOCIATION,
as Lender
By /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
