SECOND AMENDMENT AGREEMENT
Dated as of April 28, 2000
among
PHOTRONICS, INC.
The Lenders Party Hereto
THE CHASE MANHATTAN BANK,
as Administrative Agent
and
THE BANK OF NEW YORK,
as Documentation Agent
SECOND AMENDMENT AGREEMENT, dated as of April 28, 2000, among
PHOTRONICS, INC., a Connecticut corporation (the "Company"), the LENDERS party
hereto, THE CHASE MANHATTAN BANK, as Administrative Agent, and THE BANK OF NEW
YORK, as Documentation Agent.
WHEREAS, the Company, the Borrowing Subsidiaries, the Lenders, the
Administrative Agent and the Documentation Agent have entered into that
certain Credit Agreement dated as of November 19, 1998 (as amended as of
September 13, 1999 and as in effect prior to the effectiveness of this
Agreement, the "Existing Credit Agreement," and, as amended by this
Agreement, the "Amended Credit Agreement"), pursuant to which the Lenders
have agreed, subject to the terms and conditions therein set forth, to make
or participate in Loans to, and to issue or participate in Letters of Credit
for the account of, the Borrowers;
WHEREAS, the Company, AL Acquisition Corp., a California corporation
("Merger Sub"), and Align-Rite International, Inc., a California corporation
("Align-Rite"), have entered into an Agreement and Plan of Merger dated as of
September 15, 1999, as amended as of January 10, 2000 and as of March 27,
2000 (the "Align-Rite Merger Agreement"), pursuant to which the Company will
acquire Align-Rite via the merger of Merger Sub with and into Align-Rite for
the approximate purchase price of 4,426,000 shares of common stock of the
Company and the assumption of all long-term Indebtedness of Align-Rite in
the approximate amount of $33,000,000 (all of which shall be repaid upon the
closing of such acquisition) (the "Align-Rite Acquisition");
WHEREAS, the Company has purchased approximately 35% of the common stock of
Precision Semiconductor Mask Corporation, a Taiwanese corporation ("PSMC"),
from certain shareholders of PSMC for the approximate purchase price of
$30,000,000 in cash and intends to purchase approximately another 16% of the
common stock of PSMC from PSMC for the approximate purchase price of
$23,000,000 in cash (collectively, the "PSMC Acquisition");
WHEREAS, the Company, the Lenders, the Administrative Agent and the
Documentation Agent have agreed to enter into this Agreement to provide for,
among other things, the modification of certain covenants and definitions and
the consent to the Align-Rite Acquisition and the PSMC Acquisition; and
WHEREAS, the Loan Documents (including, without limitation, this Agreement
and the Amended Credit Agreement), as amended and supplemented by this
Agreement and as each may be amended or supplemented from time to time, are
referred to herein as the "Amended Loan Documents";
NOW THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
Amendments to Existing Credit Agreement.
Each of the Company and, subject to the satisfaction of the conditions set
forth in Article III, the Lenders hereby consents and agrees to the
amendments to the Existing Credit Agreement
set forth below:
(a) The definition of "Consolidated EBIT" contained in Section 1.01 of
the Existing Credit Agreement is hereby amended to insert "(other than gains
recognized during such period arising from the sale of its photomask
manufacturing facility located in Sunnyvale, California but only to the
extent that cash charges were deducted during such period as a result of the
discontinuance of operations at such facility)" immediately subsequent to
"extraordinary or nonrecurring gains".
(b) The definition of "Joint Venture" contained in Section 1.01 of the
Existing Credit Agreement is hereby amended to exclude PSMC and its
subsidiaries from the operation thereof.
(c) Section 1.01 to the Existing Credit Agreement is hereby amended to
add the following definition in appropriate alphabetical order:
"PSMC" means Precision Semiconductor Mask Corporation, a Taiwanese
corporation.
(d) The definition of "Subsidiary" contained in Section 1.01 of the
Existing Credit Agreement is hereby amended to exclude PSMC and its
subsidiaries from the operation thereof.
(e) Section 5.01(a) and Section 5.01(b) of the Existing Credit
Agreement are hereby amended to add "and of the Company and its consolidated
subsidiaries (including, without limitation, PSMC and its subsidiaries)"
immediately subsequent to "the Company and its consolidated Subsidiaries"
throughout such Sections.
(f) Section 6.04(h) of the Existing Credit Agreement is amended (i) to
insert at the beginning of said Section 6.04(h) "subsequent to the date that
the Company delivers financial statements pursuant to Section 5.01(a) or
(b) demonstrating that the Leverage Ratio as of the end of any fiscal quarter
ending after January 30, 2000 is not greater than 2.00 to 1.00," and (ii) to
insert "(other than the acquisition of Align-Rite International, Inc., a
California corporation, and approximately 51% of PSMC)" immediately
subsequent to "all prior Permitted Business Acquisitions".
(g) Section 6.13 of the Existing Credit Agreement is amended and
restated to read as follows:
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 ending on or after April 30, 2000 to be less than (a)
if such fiscal quarter ends on April 30, 2000, 3.25 to 1.00, (b) if such
fiscal quarter ends on July 30, 2000, 3.50 to 1.00, (c) if such fiscal quarter
ends on October 29, 2000, 3.75 to 1.00 and (d) if such fiscal quarter ends
after October 29, 2000, 4.00 to 1.00.
ARTICLE II
Representations and Warranties
The Company hereby represents and warrants that as of the Effective Date
(as defined in Article III of this Agreement):
Section 2.01. Existing Representations and Warranties. Each of the
representations and warranties contained in Article III of the Existing
Credit Agreement and in each of the other Loan Documents is true and correct,
except that any representation or warranty limited by its terms to a specific
date shall be true and correct as of such specific date.
Section 2.02. No Defaults. After giving effect to the consents granted
under Article IV of this Agreement and the amendments to the Existing Credit
Agreement pursuant to Article I of this Agreement, no event has occurred and
no condition exists which would constitute a Default or an Event of Default
as defined in the Existing Credit Agreement, and no event has occurred and
no condition exists which would constitute a Default or an Event of Default as
defined in the Amended Credit Agreement.
Section 2.03. Power and Authority; No Conflicts. The execution, delivery
and performance by each of the Loan Parties of the Amended Loan Documents to
which it is a party are within such Loan Party's corporate, partnership or
limited liability 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 Amended 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 2.04. Governmental Approvals; No Conflicts. The execution,
delivery and performance by each of the Loan Parties of the Amended Loan
Documents to which it is a party (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.
Section 2.05. 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 November 2, 1997 and
November 1, 1998 and October 31, 1999, such consolidated financial
statements being reported on by Deloitte & Touche LLP, independent public
accountants, and (ii) as of and for the fiscal quarter ended January 30,
2000. 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) The Company has heretofore furnished to the Lenders the
consolidated balance sheets of Align-Rite and its consolidated subsidiaries
and the related statements of income, stockholders equity and cash flows (i)
as of and for the fiscal year ended March 31, 1999, such consolidated
financial statements being reported on by Pricewaterhousecoopers LLP,
independent public accountants, and (ii) as of and for the fiscal quarter and
the portion of the fiscal year ended December 31, 1999. To the best of the
Company's knowledge (after due inquiry), such financial statements present
fairly, in all material respects, the financial condition and results of
operations and cash flows of Align-Rite 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.
(c) The Company has heretofore furnished to the Lenders the consolidated
condensed balance sheets of PSMC and its consolidated subsidiaries and the
related condensed statements of income as of and for the fiscal year ended
December 31, 1999. To the best of the Company's knowledge (after due
inquiry), such financial statements present fairly, in all material
respects, the financial condition and results of operations of PSMC and its
consolidated subsidiaries as of such dates and for such periods in accordance
with GAAP.
(d) The projections and pro forma financial information provided by the
Company giving effect to the Align-Rite Acquisition and the PSMC Acquisition
are based on good faith estimates and assumptions by the management of the
Company, it being recognized by the Lenders, however, that projections as to
future events are not to be viewed as fact and that actual results during the
period or periods covered by any such projections may differ from the
projected results and that the differences may be material. After reviewing
the historical financial statements of Align-Rite and PSMC and considering
the pro forma position of the Company and its consolidated subsidiaries
subsequent to the Align-Rite Acquisition and the PSMC Acquisition, the
Company believes in good faith that the Company and its consolidated
subsidiaries will continue to be in compliance with the financial covenants
contained in Article VI of the Existing Credit Agreement.
(e) Since January 30, 2000, 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. With
respect to the financial period commencing on January 1, 2000 and ending on
the Effective Date, to the best of the Company's knowledge (after due
inquiry), there has been no material adverse change in the business, assets,
operations, prospects or condition, financial or otherwise, of Align-Rite and
its consolidated subsidiaries, taken as a whole, or PSMC and its consolidated
subsidiaries, taken as a whole, respectively.
ARTICLE III
Conditions Precedent
The effectiveness of this Agreement is subject to the condition
precedent that the Administrative Agent, the Documentation Agent and the
Lenders shall have received on or before May 10, 2000 (the "Effective Date")
each of the following, in form and substance satisfactory to the
Administrative Agent, the Documentation Agent and the Required Lenders:
(a) counterparts of this Agreement executed by each of the Company,
the Required Lenders, the Administrative Agent and the Documentation Agent;
(b) certified complete and correct copies of each of the financial
statements referred to in Section 2.05 of this Agreement; and
(c) an amendment fee for the account of each Lender equal to .08% of
such Lender's Commitment together with all fees and disbursements required
to be paid pursuant to Section 5.04 of this Agreement.
ARTICLE IV
Consents
Section 4.01. Align-Rite Acquisition. Subject to the satisfaction of
the conditions set forth in Article III of this Agreement, notwithstanding
Section 6.01 and Section 6.04 of the Existing Credit Agreement, each of the
Lenders hereby consents to the Align-Rite Acquisition so long as (a) the
Align-Rite Acquisition is consummated in accordance with the terms and
conditions of the Align-Rite Merger Agreement, (b) the closing date of the
Align-Rite Acquisition is no later than September 30, 2000, (c) all
Indebtedness assumed in connection with the Align-Rite Acquisition is paid
off no later than 10 days after the closing date of the Align-Rite
Acquisition and (d) no later than 10 days after the closing date of the
Align-Rite Acquisition, each of Align-Rite and its subsidiaries shall
guarantee (or, with respect to subsidiaries of Align-Rite that are Foreign
Subsidiaries, provide for a pledge of the capital stock of such subsidiaries
as collateral for) the obligations under the Loan Documents and deliver such
resolutions, opinions and other documents as required under Section 5.09 of
the Amended Credit Agreement.
Section 4.02. PSMC Acquisition. Subject to the satisfaction of the
conditions set forth in Article III of this Agreement, notwithstanding
Section 6.01 and Section 6.04 of the Existing Credit Agreement, each of the
Lenders hereby consents to the PSMC Acquisition so long as (a) the
completion of the PSMC Acquisition is no later than September 30, 2000 and
(b) not later than 10 days after the closing date of the PSMC Acquisition,
the Company shall cause all of the capital stock of PSMC owned directly or
indirectly by the Company to be pledged and delivered to the Administrative
Agent and shall deliver such resolutions, opinions and other documents as
required under Section 5.09(b) of the Amended Credit Agreement.
ARTICLE V
Miscellaneous
Section 5.01. Defined Terms. The terms used herein and not defined
herein shall have the meanings assigned to such terms in the Existing Credit
Agreement.
Section 5.02. Nonwaiver. The terms of this Agreement shall not operate
as a waiver by the Administrative Agent, the Issuing Bank or any Lender or
otherwise prejudice the rights, remedies or powers of the Administrative Agent,
the Issuing Bank or any Lender under the Amended Credit Agreement, under any
other Amended Loan Document or under applicable law. Except as set forth in
Article I: (x) no terms and provisions of the Loan Documents are modified
or changed by this Agreement; and (y) the terms and provisions of the Loan
Documents shall continue in full force and effect.
Section 5.03. Waivers; Amendments. Any provision of this Agreement may
be amended or modified only by an agreement or agreements in writing signed by
the Company and the Required Lenders, or by the Company and the Administrative
Agent acting with the consent of the Required Lenders.
Section 5.04. Expenses. The Company shall pay 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 preparation
and administration of this Agreement, the other Amended Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated).
Section 5.05. Notices. 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
in accordance with the terms of the Amended Credit Agreement.
Section 5.06. 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 5.07. 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 5.08. 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 Amended 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 thereof. Subject to the satisfaction of the conditions
set forth in Article III of this Agreement, 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 the Company and the Required
Lenders, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors 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 5.09. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
PHOTRONICS, INC., a Connecticut corporation
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent
By: /s/ T. XXXXX XXXXX
----------------------------
Name: T. Xxxxx Xxxxx
Title: Vice President
THE BANK OF NEW YORK, individually
and as Documentation Agent
By: /s/ XXXXXXXXX XXXXXXXXXX
------------------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ XXXXXXX X. XXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ XXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
HSBC BANK USA
By: /s/ XXXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
PEOPLE'S BANK
By: /s/ XXXXXXX XXXXXXXX, XX.
------------------------------------------
Name: Xxxxxxx Xxxxxxxx, Xx.
Title: Assistant Vice President
CITIZENS BANK OF MASSACHUSETTS
By: /s/ XXXX XXXXXXXX
-----------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
