Exhibit 10.2
EXECUTION COPY
AMENDMENT NO. 1
Dated as of September 2,
2009
to
LOAN AGREEMENT
Dated as of June 8,
2009
THIS AMENDMENT NO. 1 (“
Amendment ”) is made as of September 2, 2009 by
and among Photronics, Inc. (the “ Borrower ”),
the financial institutions listed on the signature pages hereof and
JPMorgan Chase Bank, National Association, as Administrative Agent
(in such capacity, the “ Administrative Agent ”)
and as Collateral Agent (in such capacity, the “
Collateral Agent ”), under that certain Loan Agreement
dated as of June 8, 2009 by and among the Borrower, the
Lenders and the Administrative Agent (as may be further amended,
supplemented or otherwise modified from time to time, the “
Loan Agreement ”). Capitalized terms used herein and
not otherwise defined herein shall have the respective meanings
given to them in the Loan Agreement.
WHEREAS, the Borrower has requested
that the Lenders, the Administrative Agent and the Collateral Agent
agree to certain amendments to the Loan Agreement;
WHEREAS, the Lenders party hereto,
the Administrative Agent and the Collateral Agent have agreed to
such amendments on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of
the premises set forth above, the terms and conditions contained
herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower, the
Lenders party hereto, the Administrative Agent and the Collateral
Agent have agreed to enter into this Amendment.
1. Amendments to Loan
Agreement . Effective as of the date of satisfaction of the
conditions precedent set forth in Section 2 below, the
Loan Agreement is hereby amended as follows:
(a) The definition of
“Subordinated Indebtedness” appearing in
Section 1.01 of the Loan Agreement is amended to delete the
phrase “the Indebtedness under the Convertible Subordinated
Notes outstanding on the Effective Date and any other”
appearing therein and to replace such phrase with the word
“any”.
(b) Section 1.01 of the Loan
Agreement is amended to add the following definitions thereto in
the corresponding alphabetical order:
“ Permitted Convertible
Note ” means any unsecured note issued by the Borrower
which may be converted into equity in the Borrower so long as
(i) the indebtedness thereunder does not mature, and is
otherwise not subject to any mandatory prepayment, redemption or
defeasance, in each case prior to the date that is six
(6) months after the Maturity Date and (ii) the terms and
conditions applicable thereto are reasonably satisfactory to the
Administrative Agent.
“ Permitted Convertible
Note Indenture ” means the indenture pursuant to which
the Borrower issues any Permitted Convertible Note, as amended,
restated, supplemented or otherwise modified from time to time, in
each case containing such terms and conditions as are reasonably
satisfactory to the Administrative Agent.
(c) Section 1.01 of the Loan
Agreement is amended to delete the definitions of
“Convertible Subordinated Note Indenture” and
“Convertible Subordinated Notes” appearing
therein.
(d) The Loan Agreement is amended to
(i) delete the reference to “Convertible Subordinated
Note” appearing in the definition of “Material
Indebtedness” in Section 1.01 of the Loan Agreement and
to replace such reference with “Permitted Convertible
Note”, (ii) delete each reference to “Convertible
Subordinated Note Indenture” appearing in Section 6.10
of the Loan Agreement and to replace each such reference with
“Permitted Convertible Note Indenture” and
(iii) delete the reference to “Convertible Subordinated
Notes” appearing in Section 6.10 of the Loan Agreement
and to replace such reference with “Permitted Convertible
Notes”.
(e) Section 3.15 of the Loan
Agreement is amended and restated in its entirety to read as
follows:
SECTION 3.15 [Intentionally
Omitted.]
(f) Section 6.01 of the Loan
Agreement is amended to (i) delete the word “and”
appearing at the end of clause (j) thereof, (ii) delete
the period appearing at the end of clause (k) thereof and to
replace such period with “; and” and (iii) add the
following as a new clause (l) thereof:
(l) Indebtedness of the Borrower
under any Permitted Convertible Note.
(g) Clause (b) of
Section 6.06 of the Loan Agreement is amended and restated in
its entirety to read as follows:
(b) The Borrower will not, and will
not permit any Subsidiary to, make or agree to pay or make,
directly or indirectly, any payment or other distribution (whether
in cash, securities or other property) of or in respect of
principal of or interest on any Indebtedness, or any payment or
other distribution (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or
termination of any Indebtedness, except: (i) payment of
Indebtedness created under the Loan Documents; (ii) payment of
regularly scheduled interest and principal payments as and when due
in respect of any Indebtedness (subject to any subordination
provisions thereof); (iii) payments in respect of the
Revolving Facility; (iv) subject to Section 2.11(c) of
the Revolving Facility Agreement, prepayment, purchase, redemption,
retirement or other acquisition of the Permitted Convertible Notes
by exchange for or out of the proceeds received from a
substantially concurrent issue of (1) new shares of its
non-mandatorily redeemable Equity Interests pursuant to the
conversion terms described in the Permitted Convertible Note
Indenture or (2) Subordinated Indebtedness or other Permitted
Convertible Notes; and (v) payment of secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of
the property or assets securing such Indebtedness.
(h) Clause (n) of Article VII
of the Loan Agreement is amended and restated in its entirety to
read as follows:
(n) [intentionally omitted];
or
2
2. Conditions of
Effectiveness . The effectiveness of this Amendment is subject
to the conditions precedent that (a) the Administrative Agent
shall have received counterparts of this Amendment duly executed by
the Borrower, the Required Lenders and the Administrative Agent and
the Consent and Reaffirmation attached hereto duly executed by the
Subsidiary Guarantors, (b) the Borrower shall have paid all of
the fees of the Administrative Agent and its affiliates (including,
to the extent invoiced, reasonable attorneys’ fees and
expenses of the Administrative Agent) in connection with this
Amendment and the other Loan Documents and (c) the
Administrative Agent shall have received the fully executed
Permitted Convertible Note Indenture, together with evidence of the
consummation of the offering of the Permitted Convertible Notes
thereunder.
3. Representations and Warranties
of the Borrower and Acknowledgements and Confirmations . The
Borrower hereby represents and warrants as follows:
(a) This Amendment and the Loan
Agreement, as amended hereby, constitute legal, valid and binding
obligations of the Borrower and are enforceable against the
Borrower in accordance with their 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.
(b) As of the date hereof and giving
effect to the terms of this Amendment, (i) no Default shall
have occurred and be continuing and (ii) the representations
and warranties of the Borrower set forth in the Loan Agreement, as
amended hereby, are true and correct as of the date
hereof.
(c) The Borrower (and by its
execution of the Consent and Reaffirmation attached hereto, each
Subsidiary Guarantor) hereby acknowledges and confirms that
(i) it does not have any grounds, and hereby agrees not to
challenge (or to allege or to pursue any matter, cause or claim
arising under or with respect to) the effectiveness, genuineness,
validity, collectibility or enforceability of the Loan Agreement or
any of the other Loan Documents, the Secured Obligations, the Liens
securing such Secured Obligations, or any of the terms or
conditions of any Loan Document and (ii) it does not possess
(and hereby forever waives, remises, releases, discharges and holds
harmless the Lenders, the Agents and their respective affiliates,
stockholders, directors, officers, employees, attorneys, agents and
representatives and each of their respective heirs, executors,
administrators, successors and assigns (collectively, the “
Indemnified Parties ”) from and against, and agrees
not to allege or pursue) any action, cause of action, suit, debt,
claim, counterclaim, cross-claim, demand, defense, offset,
opposition, demand
