THIRD AMENDMENT (the "Amendment"), dated as of May 14, 1997,
to the Revolving Credit and Term Loan Agreement dated as of March
1, 1995 between PHOTRONICS, INC. (the "Borrower") and THE CHASE
MANHATTAN BANK (the "Bank"), as amended by the First Amendment and
Waiver dated as of July 11, 1996 and Second Amendment and Waiver
dated as of January 24, 1997 (the "Agreement").
WITNESSETH:
WHEREAS, the Borrower and the Bank are parties to the
Agreement; and
WHEREAS, the Borrower has requested the Bank to amend the
Agreement to modify the terms and conditions of the Revolving
Credit Loans and remove the procedure for making of the Term Loans.
NOW, THEREFORE, in consideration of the premises and mutual
agreements herein contained, the parties hereby agree as follows:
1. Definitions.
Except as otherwise stated, capitalized terms defined in the
Agreement and used herein without definition shall have the
respective meanings assigned to them in the Agreement.
2. Amendments of the Agreement
A. Section 1.2 of the Agreement, Revolving Credit Notes, is
hereby amended by deleting the first sentence, the deleted text
being set forth below, and substituting therefor the text set forth
below:
Delete the following:
"The Revolving Credit Loans made by the Bank shall be evidenced by
a promissory note of the Borrower, substantially in the form of
Exhibit A (the "Revolving Credit Note"), payable to the order of
the Bank and in a principal amount equal to the lesser of (a)
Thirteen Million Dollars ($13,000,000) and (b) the aggregate unpaid
principal amount of all Revolving Credit Loans made by the Bank.
Replace with the following:
"The Revolving Credit Loans made by the Bank shall be evidenced by
a promissory note of the Borrower, substantially in the form of
Exhibit A (the "Revolving Credit Note"), payable to the order of
the Bank and in a principal amount equal to the lesser of (a)
Thirty Million Dollars ($30,000,000) and (b) the aggregate unpaid
principal amount of all Revolving Credit Loans made by the Bank."
B. Section 1.5 of the Agreement, Termination or Reduction of
the Commitment, is hereby amended by deleting the third and fourth
sentences, the deleted text being set forth below:
Delete the following:
"Any reduction in the Revolving Credit Commitment to an amount less
than $10,000,000 shall permanently reduce the Revolving Credit
Commitment in subsequent Availability Periods. Termination of the
Commitment shall also terminate the obligation of the Bank to make
any Term Loans."
C. Section 1.6 of the Agreement, Term Loans, is hereby
superseded and replaced, and amended to read:
1.6 Not Used; Number Reserved
D. Section 1.7 of the Agreement, Term Notes, is hereby
superseded and replaced, and amended to read:
1.7 Not Used; Number Reserved
E. Section 1.8 of the Agreement, Procedure for Term Loan
Borrowing, is hereby superseded and replaced, and amended to read:
1.8 Not Used; Number Reserved
F. Section 1.9 of the Agreement, Optional Prepayments, is
hereby amended by deleting the third and fourth sentences, the
deleted text being set forth below:
Delete the following:
"Partial prepayments of the Term Loans shall be applied to the
installments of principal thereof in the inverse order of their
scheduled maturities. Amounts prepaid on account of the Term Loans
may not be reborrowed."
G. Section 1.10 of the Agreement, Conversion and
Continuation Options, is hereby amended by deleting the phrase "or
the date of the final installment of principal of a Term Loan" in
line 20 thereof.
H. Section 2.5 of the Agreement, Financial Statements, is
hereby amended by deleting the reference to "October 31, 1994", and
replacing with "October 31, 1994, October 31, 1995 and October 31,
1996".
I. Section 2.7 of the Agreement, Adverse Developments, is
hereby amended by deleting the reference to "October 31, 1994" and
replacing it with "October 31, 1996".
J. Section 3.3 of the Agreement, Additional Conditions to
Term Loans, is hereby superseded and replaced, and amended to read:
3.3 Not Used; Number Reserved
K. Section 4.9 of the Agreement, Subsidiary Guarantees, is
hereby amended by inserting the following as the last sentence
thereof:
"Provided, however, that if such subsidiary is not formed under the
laws of a state of the United States, the Bank may, at the request
of the Borrower, accept in lieu of the foregoing guaranty (a) a
duly executed pledge agreement of the Borrower which pledge
agreement shall grant to the Bank, as security for the Indebtedness
and obligations under the Loan Documents, a security interest in no
more than sixty-six and two-thirds percent (66-2/3%) of the issued
and outstanding shares of the Borrower's stock in such foreign
subsidiary, and (b) requisite board resolutions and supporting
documents reasonably requested by Bank in connection with such
pledge agreement, all of the foregoing being in form and substance
satisfactory to Bank.
L. Section 8.1 of the Agreement, Definitions, is hereby
amended by deleting the definition of "Availability Period" in its
entirety and substituting in lieu thereof the following new
definition:
"Availability Period" shall mean the single period from March 1,
1995 to and including October 31, 1998.
N. Section 8.1 of the Agreement, Definitions, is hereby
amended by deleting the definition of "Loan Documents" in its
entirety and substituting in lieu thereof the following new
definition:
"Loan Documents" shall mean this Agreement, the Notes, the
Guarantees, and any pledge agreement delivered pursuant to Section
4.9.
O. Section 8.1 of the Agreement, Definitions, is hereby
amended by deleting the definition of "Notes" in its entirety and
substituting in lieu thereof the following new definition:
"Note" or "Notes" shall mean the Revolving Credit Note.
P. Section 8.1 of the Agreement, Definitions, is hereby
amended by deleting the definition of "Revolving Credit Commitment"
in its entirety and substituting in lieu thereof the following new
definition:
"Revolving Credit Commitment" shall mean, for the Availability
Period, Thirty Million Dollars ($30,000,000).
Q. Section 8.1 of the Agreement, Definitions, is hereby
amended by deleting the definitions of "Carryover Amount", "Term
Loans", and "Term Note" in their entirety.
R. Section 9.11 of the Agreement, Notices, is hereby amended
by deleting the notice address for the Bank in its entirety and
substituting in lieu thereof the following new address:
The Chase Manhattan Bank
999 Broad Street, Second Floor
Bridgeport, CT 06604
Attention: David Short, Photronics Account Officer
S. Any and all references in the Agreement to "Revolving
Credit and Term Loan Agreement" shall be amended to read "Revolving
Credit Agreement".
T. Exhibit A to the Agreement is superseded and replaced by
the Amended and Restated Revolving Credit Note attached hereto as
Exhibit A, and Schedule 2.14 to the Agreement is superseded and
replaced by Schedule 2.14 attached hereto as Exhibit B.
3. Representations and Warranties
To induce the Bank to enter into this Amendment, the Borrower
hereby represents and warrants that:
(a) The Borrower has the power, authority and legal right to
make and deliver this Amendment and to perform its obligations
under the Agreement, as amended by this Amendment, without any
notice, consent, approval or authorization not already obtained,
and the Borrower has taken all necessary action to authorize the
same.
(b) The making and delivery of this Amendment and the
performance of the Agreement as amended by this Amendment do not
violate any provision of law or any regulation or of the Borrower's
charter or by-laws or results in the breach of or constitute a
default under or require any consent under any indenture or other
agreement or instrument to which the Borrower is a party or by
which the Borrower or any of its property may be bound or affected;
provided, however, that this representation shall exclude the
Connecticut Development Authority, $3,450,000 Industrial
Development Bonds (Photronic Labs, Inc., Project - 1984 Series).
The Agreement as amended by this Amendment constitutes a legal,
valid and binding obligation of the Borrower, enforceable against
it in accordance with its terms, except as the enforceability
thereof may be limited by any applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally.
(c) The representations and warranties contained in Section
2 of the Agreement are true and correct on and as of the date of
this Amendment and after giving effect thereto.
(d) No Default or Event of Default has occurred and is
continuing under the Agreement as of the date of this Amendment and
after giving effect thereto.
4. Effective Date
This Amendment shall become effective as of the date hereof
when the Bank shall have received the following duly executed by
each party thereto and in form and substance satisfactory to the
Bank:
A. A counterpart of this Amendment; and
B. The Amended and Restated Revolving Credit Note of
Borrower issued to Bank substantially in the form and substance of
Exhibit A hereto, which shall supersede and replace Exhibit A to
the Credit Agreement; and
C. A certified copy of resolutions of the Borrow ratifying
and confirming the valid execution of this Amendment and the
Amended and Restated Revolving Credit Note.
5. Pledge Agreements
Within sixty (60) days from the date of this Amendment, the
Bank must have received the pledge agreements for each foreign
subsidiary required under Section 4.9 of the Agreement, as amended,
together with such other documents or instruments as Bank may
request to establish and maintain Bank's security interest in no
more than sixty-six and two-thirds percent (66-2/3%) of the common
stock of such foreign subsidiary.
6. Counterparts
This Amendment may be signed in any number of counterparts,
each of which shall be an original and all of which taken together
shall constitute a single instrument with the same effect as if the
signature thereto and hereto were upon the same instrument.
7. Full Force and Effect
Except as expressly modified by this Amendment, all of the
terms and provisions of the Agreement shall continue in full force
and effect, and all parties hereto shall be entitled to the
benefits thereof.
8. Governing Law
This Amendment shall be governed by and construed in
accordance with the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and
duly authorized officers as of the date set forth above.
THE CHASE MANHATTAN BANK PHOTRONICS, INC.
By:____(T.DAVID SHORT)___ By:____(ROBERT J. BOLLO)__
Name: T.David Short Name: Robert J. Bollo
Title: Vice President Title: Chief Financial
Officer
EXHIBIT A
Amended and Restated
Revolving Credit Note
$30,000,000 White Plains, New York
Dated as of March 1, 1995
FOR VALUE RECEIVED, the undersigned, Photronics, Inc. a
Connecticut corporation (the "Borrower") hereby promises to pay to
the order of The Chase Manhattan Bank (the "Bank") at 270 Park
Avenue, New York, New York, on the Commitment Termination Date (as
defined in the Revolving Credit and Term Loan Agreement dated as of
March 1, 1995, as amended (the "Credit Agreement"), between the
Borrower and the Bank), the lesser of the principal sum of Thirty
Million Dollars ($30,000,000) and the aggregate unpaid principal
amount of all Revolving Credit Loans (as defined in the Credit
Agreement) made to the Borrower by the Bank pursuant to the Credit
Agreement, in lawful money of the United States of America, in
immediately available funds, and to pay interest on the principal
amount hereof from time to time outstanding, in like funds, at said
office, at the rate or rates per annum, from the dates and payable
on the dates provided in the Credit Application.
The Borrower promises to pay interest, on demand, on any
overdue principal and, to the extent permitted by law, overdue
interest from their due dates at the rate or rates provided in the
Credit Agreement.
The Borrower hereby waives diligence, presentment, demand,
protest and notice of any kind whatsoever. The nonexercise by the
holder of any of its rights hereunder in any particular instance
shall not constitute a waiver thereof in that or any subsequent
instance.
All borrowings evidenced by this Note and all payments and
prepayments of the principal hereof and interest hereon and the
respective dates and maturity dates thereof shall be endorsed by
the holder hereof on the schedule attached hereto and made a part
hereof or on a continuation thereof which shall be attached hereto
and made a part hereof, or otherwise recorded by such holder in its
internal records; provided, however, that the failure of the holder
to make such a notation or any error in such a notation shall not
affect the obligations of the Borrower under this Note.
The Borrower agrees that the Bank has accepted this Note to
supersede and replace the March 1, 1995 Revolving Credit Note of
the Borrower in the original principal amount of $13,000,000,
currently held by the Bank. The Borrower agrees that the principal
amount shown outstanding on the books and records of the Bank under
such prior note shall be deemed outstanding under this Note as of
the date hereof.
The Loans evidenced hereby are Loans referred to in the Credit
Agreement, which, among other things, contains provisions for the
acceleration of the maturity thereof upon the happening of certain
events, for optional prepayment of the principal thereof prior to
the maturity thereof and for the amendment or waiver of certain
provisions of the Credit Agreement, all upon the terms and
conditions therein specified. THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
PHOTRONICS, INC.
By:______________________
Name: Robert J. Bollo
Title: Chief Financial
Officer