AMENDMENT NO. 1 TO THE CREDIT AGREEMENT
Exhibit 10.71
EXECUTION COPY
AMENDMENT NO. 1 TO THE
CREDIT AGREEMENT
CREDIT AGREEMENT
Dated as of May 22, 2009
AMENDMENT NO. 1 TO THE CREDIT AGREEMENT 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 agent (the “Agent”) for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders and the Agent have entered into a Credit Agreement dated as of
January 26, 2007 (the “Credit Agreement”). Capitalized terms not otherwise defined in this
Amendment have the same meanings as specified in the Credit Agreement.
(2) The Borrower and the Required Lenders have agreed to amend the Credit Agreement as
hereinafter set forth.
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 of the Credit Agreement is hereby amended by deleting the definitions of
“Applicable Margin”, “Applicable Percentage”, “Base Rate” and “Public Debt Rating” in their
entirety and substituting in lieu thereof the following:
“Applicable Margin” means, as of any date, a percentage per annum determined by
reference to the Public Debt Rating in effect on such date as set forth below:
| Applicable Margin | Applicable Margin | |||
Public Debt Rating |
for Base Rate | for Eurodollar Rate | ||
S&P/Xxxxx’x |
Advances | Advances | ||
Xxxxx 0 |
||||
A+/A1 or above |
*** | *** | ||
Xxxxx 0 |
||||
X/X0 |
*** | *** | ||
Xxxxx 0 |
||||
X-/X0 |
*** | *** | ||
Xxxxx 0 |
||||
XXXx/Xxx0 |
*** | *** | ||
Xxxxx 0 |
||||
Xxxxx xxxx Xxxxx 0 or
unrated |
*** | *** |
| *** | INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. |
“Applicable Percentage” means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as set forth below:
Public Debt Rating |
||
S&P/Xxxxx’x |
Applicable Percentage | |
Xxxxx 0 |
||
A+/A1 or above |
*** | |
Xxxxx 0 |
||
X/X0 |
*** | |
Xxxxx 0 |
||
X-/X0 |
*** | |
Level 4 |
||
BBB+/Baa1 |
*** | |
Xxxxx 0 |
||
Xxxxx xxxx Xxxxx 0 or unrated |
*** |
“Base Rate” means a fluctuating interest rate per annum in effect from time to
time, which rate per annum shall at all times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank in New York, New York, from
time to time, as Citibank’s base rate;
(b) 1/2 of one percent per annum above the Federal Funds Rate; and
(c) the British Bankers Association Interest Settlement Rate applicable to Dollars for
a period of one month (“One Month LIBOR”) plus 1.00% (for the avoidance of doubt, the One
Month LIBOR for any day shall be based on the rate appearing on Reuters LIBOR01 Page (or
other commercially available source providing such quotations as designated by the Agent
from time to time) at approximately 11:00 a.m. London time on such day).
“Public Debt Rating” means, as of any date for S&P, the lowest rating that has
been most recently announced by S&P for any class of non-credit enhanced long-term senior
unsecured debt issued by the Borrower and, as of any date for Xxxxx’x, the lowest rating
that has been most recently announced by Xxxxx’x for any class of non-credit enhanced
long-term senior unsecured debt issued by the Borrower. For purposes of the foregoing,
(a) if only one of S&P and Xxxxx’x shall have in effect a Public Debt Rating, the Applicable
Margin and the Applicable Percentage shall be determined by reference to the available
rating; (b) if neither S&P nor Xxxxx’x shall have in effect a Public Debt Rating, the
Applicable Margin and the Applicable Percentage will be set in accordance with Level 5 under
the definition of “Applicable Margin” or “Applicable Percentage”, as the
case may be; (c) if the ratings established by S&P and Xxxxx’x shall fall within different
levels, the Applicable Margin and the Applicable Percentage shall be based upon the higher
rating unless the such ratings differ by two or more levels, in which case the applicable
| *** | INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. |
2
level will be deemed to be one level above the lower of such levels; (d) if any rating
established by S&P or Xxxxx’x shall be changed, such change shall be effective as of the
date on which such change is first announced publicly by the rating agency making such
change; and (e) if S&P or Xxxxx’x shall change the basis on which ratings are established,
each reference to the Public Debt Rating announced by S&P or Xxxxx’x, as the case may be,
shall refer to the then equivalent rating by S&P or Xxxxx’x, as the case may be.
(b) Section 1.01 of the Credit Agreement is hereby amended by deleting the definition
“Applicable Utilization Fee” in its entirety.
(c) Section 1.01 is amended by adding the following definitions in appropriate alphabetical
order:
“Affected Lender” means any Lender that (a) is a Defaulting Lender, (b) has
otherwise failed to pay over to the Agent or any other Lender any other amount required to
be paid by it hereunder within one Business Day of the date when due, unless the subject of
a good faith dispute or unless such failure has been cured, or (c) is (or whose parent
company is) in bankruptcy or insolvency proceedings, has had a receiver, conservator,
trustee or custodian appointed for it, or has taken any corporate action authorizing, or
indicating its consent to, approval of or acquiescence in any such proceeding or
appointment.
“Defaulted Advance” means any Advance that a Defaulting Lender has failed to
make.
“Defaulting Lender” means any Lender that (i) failed to fund any portion of its
Advances within three Business Days of the date required to be funded by it hereunder, (ii)
notified the Borrower, the Agent, or any Lender in writing that it does not intend to fund
any of its Commitments, (iii) has made a public statement or announcement to the effect that
it does not intend to fund or honor its commitments under agreements in which it has
committed to extend credit or (iv) failed, within three Business Days after request by the
Agent, to confirm it will comply with the terms of this Agreement relating to its
obligations to fund prospective Advances.
(d) Section 2.04 is hereby amended by adding the words “(a) Optional Ratable Termination
or Reduction” immediately preceding the first sentence contained therein and adding the
following new subclause (b) immediately after the end of the last sentence therein:
(b) Non-Ratable Reduction. The Borrower, at its sole discretion, shall have
the right, but not the obligation, at any time so long as no Event of Default has occurred
and is continuing, upon at least ten Business Days’ notice to an Affected Lender (with a
copy to the Agent), to terminate in whole such Affected Lender’s Commitment. Such
termination shall be effective with respect to such Affected Lender’s Unused Commitment on
the date set forth in such notice, provided, however, that such date shall
be no earlier than ten Business Days after receipt of such notice. Upon termination of a
Lender’s Commitment under this Section 2.04(b), the Borrower will pay all principal of, and
interest accrued to the date of such payment on, Advances owing to such Affected Lender and
pay any accrued fees payable to such Affected Lender pursuant to the provisions of Section
2.03, and all other amounts payable to such Affected Lender hereunder (including, but not
limited to, any increased costs or other amounts owing under Section 2.10, any
indemnification for taxes under Section 2.13, and any compensation payments due as provided
in Section 8.04); and upon such payments, the obligations of such Affected Lender hereunder
shall, by the provisions hereof, be released and discharged; provided,
however, that (i) such Affected Lender’s rights under Sections 2.10, 2.13 and 8.04,
and its obligations under Sections 7.05 and 8.08 shall survive such release and discharge as
to matters occurring prior to such date; and (ii) no
3
claim that the Borrower may have against such Affected Lender arising out of such
Affected Lender’s default hereunder shall be released or impaired in any way. The aggregate
amount of the Commitments of the Lenders once reduced pursuant to this Section 2.04(b) may
not be reinstated; provided further, however, that if pursuant to
this Section 2.04(b), the Borrowers shall pay to an Affected Lender any principal of, or
interest accrued on, the Advances owing to such Affected Lender, then the Borrower shall
either (x) confirm to the Agent that the conditions set forth in Section 3.02 are met on and
as of such date of payment or (y) pay or cause to be paid a ratable payment of principal and
interest to all Lenders who are not Affected Lenders.
(e) Section 2.06(a) is amended by deleting the phase “plus (z) the Applicable Utilization Fee
in effect from time to time” in each of the places such phrase appears.
(f) Article II is hereby amended by inserting at the end thereof the following new Section
2.19:
SECTION 2.19 Defaulting Lenders. Anything contained herein to the
contrary notwithstanding, (a) to the extent permitted by applicable law, any
prepayment of the Advances shall, if the Borrower so directs at the time of making
such prepayment, be applied to the Advances of Lenders other than any Defaulting
Lender as if such Defaulting Lender had no Advances outstanding; and (b) the
aggregate amount of the Advances as at any date of determination shall be calculated
as if such Defaulting Lender had funded all Defaulted Advances of such Defaulting
Lender for purposes of determining the aggregate amount of the total Commitments
available to be drawn by the Borrower.
No Commitment of any Lender shall be increased or otherwise affected, and,
except as otherwise expressly provided in this Section 2.19, performance by any
Borrower or any Lender of its obligations hereunder shall not be excused or
otherwise modified as a result of any failure by a Defaulting Lender to fund or the
operation of this Section 2.19. The rights and remedies against a Defaulting Lender
under this Section 2.19 are in addition to other rights and remedies that the
Borrower, the Agent or any other Lender may have against such Defaulting Lender with
respect to any Defaulted Advance.
(g) Section 4.01(d) is hereby amended (i) by replacing the date “October 29, 2006” with the
date “October 26, 2008” in both places such date appears and (ii) by replacing the phrase “2006
Form 10-K” with the phrase “2008 Form 10-K”.
(h) Section 4.01(e) is hereby amended by replacing the phrase “2006 Form 10-K” with the phrase
“2008 Form 10-K”.
(i) Section 5.03 is amended in full to read as follows:
SECTION 5.03. Financial Covenants. So long as any Advance shall remain unpaid
or any Lender shall have any Commitment hereunder, the Borrower will:
4
(a) Debt/Capital Ratio. Maintain, as of the last day of each fiscal quarter, a
ratio of Consolidated Funded Debt to the sum of Consolidated Funded Debt plus Consolidated
shareholders’ equity of not greater than ***.
(b) Maintenance of Cash and Investments. Maintain, as of last day of each
fiscal quarter and on the date of any Borrowing, an aggregate Consolidated balance of
unrestricted and unencumbered cash, cash equivalents and short and long-term investments
minus the aggregate principal amount of the Advances outstanding on such date in an amount
of not less than ***; provided that not less than *** of such unrestricted and
unencumbered cash, cash equivalents and short and long-term investments shall be maintained
by the Borrower and its wholly-owned U.S. Subsidiaries; provided further
that for purposes of the foregoing calculations of long-term investments, such investments
shall not include any non-public private equity investments.
(j) Section 8.07(a) is amended by adding immediately after the phrase “under Section 2.13” the
phrase “or such Lender becoming an Affected Lender”.
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 and the Agent shall have additionally received all of the following documents,
each such document (unless otherwise specified) dated the date of receipt thereof by the Agent
(unless otherwise specified) and in sufficient copies for each Lender, in form and substance
satisfactory to the Required Lenders (unless otherwise specified) and in sufficient copies for each
Lender:
(a) Certified copies of the general resolutions of the Board of Directors of the Borrower
which authorize the Borrower to enter into this Amendment, the Credit Agreement as amended hereby
and the matters contemplated hereby and thereby and all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to this Amendment, the Credit
Agreement and the matters contemplated hereby and thereby.
(b) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the
names and true signatures of the officers of the Borrower authorized to sign this Amendment and the
other documents to be delivered hereunder and thereunder.
(c) A favorable opinion of Vice President, Legal Services of the Borrower and of Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP, in substantially the forms of Exhibit A and Exhibit B, respectively,
hereto and as to such other matters as any Lender through the Agent may reasonably request.
(d) A certificate signed by a duly authorized officer of the Borrower stating that:
(i) The representations and warranties contained in Section 3 of this
Amendment, and in Section 4.01 of the Credit Agreement, as amended hereby, are
correct on and as of the date of such certificate as though made on and as of such
date; and
| *** | INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. |
5
(ii) No event has occurred and is continuing that constitutes a Default.
SECTION 3. Representations and Warranties of the Borrower
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation.
(b) The execution, delivery and performance by the Borrower of this Amendment and the Credit
Agreement, as amended hereby, and the consummation of the transactions contemplated hereby, 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 (i) the certificate of incorporation
or by-laws of the Borrower, (ii) any agreement that purports to affect the Borrower’s ability to
borrow money or the Borrower’s obligations under the Agreement, as amended hereby, or any judgment,
injunction, order or decree binding upon the Borrower or any of its Subsidiaries, (iii) any
provision of material applicable law or regulation or result in the creation or imposition of any
Lien on any asset of the Borrower or any of its Subsidiaries not otherwise permitted by Section
5.02(a) of the Credit Agreement.
(c) This Amendment has been duly executed and delivered by the Borrower. This Amendment and
the Credit Agreement, as amended hereby, each constitutes a valid and binding agreement of the
Borrower enforceable in accordance with its terms, except as limited by (i) bankruptcy, insolvency
or similar laws affecting creditors’ rights generally and (ii) general principles of equity.
(d) There is no action, suit or proceeding pending against, or to the knowledge of the
Borrower any investigation, action, suit or proceeding threatened against or affecting, the
Borrower or any of its Subsidiaries before any court or arbitrator or any governmental body, agency
or official which in any manner draws into question the validity of this Amendment or the Credit
Agreement, as amended hereby.
SECTION 4. Reference to and Effect on the Credit Agreement and the Notes. (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.
6
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.
7
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.
| APPLIED MATERIALS, INC. | ||||||
| By Title: |
/s/ Xxxxxx Xxxxxx
|
|||||
| CITICORP USA, INC., as Agent and as a Lender |
||||||
| By Title: |
/s/ Xxxxx Xxx
|
|||||
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., SEATTLE BRANCH | ||||||
| By Title: |
/s/ Xxxxxx Xxxxxxxxxxxx
|
|||||
| JPMORGAN CHASE BANK, N.A. | ||||||
| By Title: |
/s/ Xxxxxx Xxxxxx
|
|||||
| KEYBANK NATIONAL ASSOCIATION | ||||||
| By Title: |
/s/ Xxxx X. Xxxxxxxxx
|
|||||
| BANK OF AMERICA, N.A. | ||||||
| By Title: |
/s/ Xxxxx XxXxxxx
|
|||||
| THE BANK OF NEW YORK MELLON | ||||||
| By Title: |
/s/ Xxxxxx Xxxxxxx
|
|||||
| XXXXXXX STREET COMMITMENT CORPORATION (Recourse only to the assets of Xxxxxxx Street Commitment Corporation) | ||||||
| By Title: |
/s/ Xxxx Xxxxxx
|
|||||
8
| XXXXXX XXXXXXX BANK | ||||||
| By Title: |
/s/ Xxxxxxx Xxxxx
|
|||||
| INDUSTRIAL AND COMMERCIAL BANK OF CHINA LIMITED |
||||||
| By Title: |
/s/ Jiang Tao
|
|||||
| DBS BANK LTD., LOS ANGELES AGENCY | ||||||
| By Title: |
/s/ Xxxxx XxXxxxxx
|
|||||
| CHINA CONSTRUCTION BANK CORPORATION | ||||||
| By Title: |
/s/ Wei, Xxxxx Xxx
Xxxxx Xi Branch |
|||||
| BANK OF CHINA, NEW YORK BRANCH | ||||||
| By Title: |
/s/ Xxxxxxx X. Xxxxx
|
|||||
9
