Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 7
Dated as of September 2,
2009
to
CREDIT AGREEMENT
Dated as of June 6,
2007
THIS AMENDMENT NO. 7 (“
Amendment ”) is made as of September 2, 2009 by
and among Photronics, Inc. (the “ Company ”),
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 Credit
Agreement dated as of June 6, 2007 by and among the Company,
the Lenders and the Administrative Agent (as amended by that
certain Amendment No. 1 thereto, dated as of April 25,
2008, that certain Amendment No. 2 thereto, dated as of
October 31, 2008, that certain Amendment No. 3 thereto,
dated as of December 3, 2008, that certain Amendment
No. 4 thereto, dated as of December 12, 2008, that
certain Amendment No. 5 thereto, dated as of May 15,
2009, and that certain Amendment No. 6 thereto, dated as of
June 8, 2009, and as may be further amended, supplemented or
otherwise modified from time to time, the “ Credit
Agreement ”). Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings given
to them in the Credit Agreement.
WHEREAS, the Company has requested
that the Lenders, the Administrative Agent and the Collateral Agent
agree to certain amendments to the Credit 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 Company, the
Lenders party hereto, the Administrative Agent and the Collateral
Agent have agreed to enter into this Amendment.
1. Amendments to Credit
Agreement . Effective as of the date of satisfaction of the
conditions precedent set forth in Section 2 below, the
Credit Agreement is hereby amended as follows:
(a) The definition of
“Prepayment Event” appearing in Section 1.01 of
the Credit Agreement is amended to delete the phrase
“Sections 6.01(f) or (j)” appearing therein and to
replace such phrase with the phrase “Sections 6.01(f),
(j) or (l) (other than the proceeds of any Subordinated
Indebtedness and Permitted Convertible Notes described in
Section 6.06(b)(iv)(2) up to the amount of any existing
Permitted Convertible Notes being prepaid, purchased, redeemed,
retired or acquired with the proceeds thereof)”.
(b) The definition of
“Subordinated Indebtedness” appearing in
Section 1.01 of the Credit 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”.
(c) Section 1.01 of the Credit
Agreement is amended to add the following definitions thereto in
the corresponding alphabetical order:
“ Permitted Convertible
Note ” means any unsecured note issued by the Company
which may be converted into equity in the Company 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 Company 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.
(d) Section 1.01 of the Credit
Agreement is amended to delete the definitions of
“Convertible Subordinated Note Indenture” and
“Convertible Subordinated Notes” appearing
therein.
(e) The Credit 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 Credit 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 Credit 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 Credit Agreement
and to replace such reference with “Permitted Convertible
Notes”.
(f) Section 3.15 of the Credit
Agreement is amended and restated in its entirety to read as
follows:
SECTION 3.15. [Intentionally
Omitted.]
(g) Section 6.01 of the Credit
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 Company
under any Permitted Convertible Note.
(h) Clause (b) of
Section 6.06 of the Credit Agreement is amended and restated
in its entirety to read as follows:
(b) The Company 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 Mirror
Facility; (iv) subject to Section 2.11(c), prepayment,
purchase, redemption, retirement or other acquisition of the
Permitted Convertible Notes by exchange for or out
2
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.
(i) Clause (n) of Article VII
of the Credit Agreement is amended and restated in its entirety to
read as follows:
(n) [intentionally omitted];
or
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 Company, the Required Lenders and the Administrative Agent and
the Consent and Reaffirmation attached hereto duly executed by the
Subsidiary Guarantors, (b) the Company 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 Company and Acknowledgements and Confirmations . The
Company hereby represents and warrants as follows:
(a) This Amendment and the Credit
Agreement, as amended hereby, constitute legal, valid and binding
obligations of the Company and are enforceable against the Company
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 Company set forth in the Credit Agreement, as
amended hereby, are true and correct as of the date
hereof.
(c) The Company (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 Credit 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 and other right of action whatsoever, whether in
law, equity or otherwise (which it, all those claiming by, through
or under it, or its successors or assigns, have or may have)
against the Indemnified Parties, or any of them, by reason of, any
matter, cause or thing whatsoever, with respect to events or
omissions occurring or arising on
