UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): November 10, 2015
LAM RESEARCH CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware |
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0-12933 |
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94-2634797 |
(State or Other Jurisdiction
of Incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification Number) |
4650 Cushing Parkway
Fremont, California 94538
(Address of principal executive offices including zip code)
(510) 572-0200
(Registrants telephone number, including area code)
Not Applicable
(Former
name or former address, if changed since last report)
Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
x |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
TABLE OF CONTENTS
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Item 1.01. Entry into a Material Definitive Agreement
Amended and Restated Credit Agreement
On
November 10, 2015, Lam Research Corporation, a Delaware corporation (the Company), entered into an Amendment and Restatement Agreement (the Amendment and Restatement Agreement), with JPMorgan Chase Bank, N.A., as
administrative agent, and the lenders party thereto, which amends and restates the Companys existing unsecured Credit Agreement, dated as of March 12, 2014 (as amended by Amendment No. 1, dated as of March 5, 2015, the
Existing Credit Agreement) in the form attached as Exhibit A to the Amendment and Restatement Agreement. The Existing Credit Agreement, as amended and restated by the Amendment and Restatement Agreement, is referred to herein as the
Restated Credit Agreement.
The Restated Credit Agreement provides for an increase to the Companys revolving unsecured credit facility,
from $300 million under the Existing Credit Agreement to $750 million under the Restated Credit Agreement. The facility provides for a sublimit for borrowing in certain foreign currencies, and a sublimit for the issuance of letters of credit on the
Companys or its subsidiaries behalf. The facility provides for an expansion option that will allow the Company, subject to certain requirements, to request an increase in the facility of up to an additional $250 million, for a potential
total commitment of $1 billion. The facility matures on November 10, 2020 (the Restated Credit Agreement Maturity Date). The proceeds of the loans may be used by the Company for general corporate purposes. As of November 10,
2015, no amount was outstanding under this facility.
The loans under the Restated Credit Agreement bear interest, at the Companys option, at
(x) a base rate determined in accordance with the Restated Credit Agreement, plus a spread of 0.00% to 0.50%, or (y) a LIBOR rate plus a spread of 0.90% to 1.50%, in each case with such spread determined based on the rating of the
Companys non-credit enhanced, senior unsecured long-term debt. Principal, together with all accrued and unpaid interest, is due and payable on the Restated Credit Agreement Maturity Date. Additionally, the Company has agreed to pay the lenders
a commitment fee at a quarterly rate that varies depending on the Companys rating as described above.
The Restated Credit Agreement contains
customary affirmative and negative covenants. Affirmative covenants include, among other things, delivery of financial statements, compliance certificates and notices; maintenance of properties and insurance; preservation of existence; and
compliance with applicable laws and regulations. Negative covenants include, among other things, limitations on liens; limitations on subsidiary indebtedness; limitations on mergers, consolidations and sales of assets; changes in the nature of the
business; and limitations on affiliate transactions. The Restated Credit Agreement also contains financial covenants that require the Company to maintain (i) a consolidated debt to capitalization ratio of no more than 0.50 to 1.00 (the
Capitalization Covenant), provided that, until and including the earlier of (x) the end of the first two consecutive full fiscal quarters following the Amendment and Restatement Agreements closing date that the Company is in
compliance with the Capitalization Covenant and (y) December 31, 2017, if the Company is not in compliance with the Capitalization Covenant, the Company will be deemed not to have violated the Capitalization Covenant so long as the
Companys consolidated debt to adjusted EBITDA ratio is less than or equal to 4.50 to 1.00 for the period of four fiscal quarters then ended, and (ii) liquidity of no less than $1.0 billion, in each case determined in accordance with the
Restated Credit Agreement.
The Restated Credit Agreement also contains customary events of default including, among other things, payment defaults,
breaches of covenants or representations and warranties, cross-defaults with certain other indebtedness, bankruptcy and insolvency events and change in control of the Company, subject to grace periods in certain instances. Upon an event of default,
the lenders may declare all or a portion of the outstanding obligations payable by the Company to be immediately due and payable and exercise other rights and remedies provided for under the Restated Credit Agreement.
Certain of the lenders under the Restated Credit Agreement and their respective affiliates are currently performing, have performed, and may in the future
perform, various commercial banking, investment banking, and other financial advisory services for the Company and its subsidiaries, for which they have received, and will receive, customary fees and expenses.
The foregoing description of the Restated Credit Agreement is qualified in its entirety by reference to the
complete terms and conditions of the Restated Credit Agreement, which is attached as Exhibit A to the Amendment and Restatement Agreement, a copy of which is filed as Exhibit 10.1 hereto and is incorporated herein by reference.
Term Loan Agreement
On November 10, 2015, the
Company entered into an unsecured term loan agreement (the Term Loan Agreement), with JPMorgan Chase Bank, N.A., as administrative agent, Goldman Sachs Bank, USA, JPMorgan Chase Bank, N.A., Barclays Bank PLC and Citibank, N.A., as joint
bookrunners and joint lead arrangers, and the lenders and other agents named therein. The Term Loan Agreement provides for a $900 million senior unsecured term loan facility composed of two tranches: (i) a $375.0 million tranche of 3-year
senior unsecured loans (the 3-Year Tranche); and (ii) a $525.0 million tranche of 5-year senior unsecured loans (the 5-Year Tranche). The 3-Year Tranche matures on November 10, 2018 (the 3-Year Tranche
Maturity Date) and the 5-Year Tranche matures on November 10, 2020 (the 5-Year Tranche Maturity Date). The proceeds of the loans will be used only to finance, in part, the Companys acquisition of KLA-Tencor Corporation
(KLA-Tencor) and to pay fees and expenses in connection therewith.
The funding of the loans under the Term Loan Agreement on the closing date
of the acquisition of KLA-Tencor is subject to several conditions, including completion of the acquisition, the non-occurrence of a Target Material Adverse Effect (as defined in the Term Loan Agreement), the accuracy of certain representations and
warranties related to both the Company and KLA-Tencor, the absence of certain defaults by the Company, the delivery of certain financial statements of the Company and KLA-Tencor, the payment of certain fees and expenses, the delivery of certain
customary closing documents and other conditions to completion more fully set forth in the Term Loan Agreement.
The loans under the Term Loan Agreement
bear interest, at the Companys option, at (x) a base rate determined in accordance with the Term Loan Agreement, plus a spread of 0.000% to 0.750% for the 3-Year Tranche and 0.125% to 1.000% for the 5-Year Tranche, or (y) a LIBOR
rate plus a spread of 1.000% to 1.750% for the 3-Year Tranche and 1.125% to 2.000% for the 5-Year Tranche, in each case with such spread determined based on the rating of the Companys non-credit enhanced, senior unsecured long-term debt. The
loans shall amortize in equal quarterly amounts as set forth in the Term Loan Agreement. Any remaining balance for each tranche, together with all accrued and unpaid interest, is due and payable on the 3-Year Tranche Maturity Date or the 5-Year
Tranche Maturity Date, as applicable. Additionally, the Company has agreed to pay the lenders a commitment fee at a quarterly rate that varies depending on the Companys rating as described above.
The Term Loan Agreement contains affirmative covenants, negative covenants, financial covenants and events of default that are substantially similar to those
in the Restated Credit Agreement.
Certain of the lenders under the Term Loan Agreement and their respective affiliates are currently performing, have
performed, and may in the future perform, various commercial banking, investment banking, and other financial advisory services for the Company and its subsidiaries, for which they have received, and will receive, customary fees and expenses.
The foregoing description of the Term Loan Agreement is qualified in its entirety by reference to the complete terms and conditions of the Term Loan
Agreement, a copy of which is filed as Exhibit 10.2 hereto and is incorporated herein by reference.
Joinder Agreement to Commitment Letter
In connection with the Companys existing debt commitment letter (the Commitment Letter), dated as of October 20, 2015, with Goldman
Sachs Bank USA and Goldman Sachs Lending Partners LLC (the Original Commitment Parties), Lam entered into a joinder agreement (the Joinder Agreement), dated as of November 10, 2015, with JPMorgan Chase Bank, N.A.,
Barclays Bank PLC, Citigroup Global Markets Inc., BNP Paribas, Deutsche Bank AG Cayman Islands Branch, Mizuho Bank, Ltd., The Bank of Tokyo-Mitsubishi UFG, Ltd., Wells Fargo Bank, N.A., DBS Bank Ltd., HSBC Bank USA, N.A., PNC Capital Markets LLC,
and SunTrust Bank (the Additional
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Commitment Parties), pursuant to which, among other things, the Additional Commitment Parties have committed, on a several but not joint basis, to participate in the financing of the senior
unsecured bridge loan facility described in the Commitment Letter (the Bridge Facility), at commitment levels as described in Schedule I of the Joinder Agreement, and on the same terms and conditions as are applicable to each of the
Original Commitment Parties in respect of the Bridge Facility under the Commitment Letter, as amended by the Joinder Agreement.
The foregoing description
of the Joinder Agreement does not purport to be complete and is qualified in its entirety by reference to the Joinder Agreement, a copy of which is being filed as Exhibit 10.3 hereto and is incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
The disclosure under Item 1.01 of this Current Report on Form 8-K is hereby incorporated by reference in response to this Item 2.03.
***
Forward Looking Statements
All statements included or incorporated by reference in this document, other than statements or characterizations of historical fact, are
forward-looking statements within the meaning of the federal securities laws, including Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. These forward-looking
statements are based on Lam Research Corporations (Lam) and KLA-Tencor Corporations (KLA-Tencor) current expectations, estimates and projections about its respective business and industry, managements
beliefs, and certain assumptions made by Lam and KLA-Tencor, all of which are subject to change. Forward-looking statements can often be identified by words such as anticipates, expects, intends,
plans, predicts, believes, seeks, estimates, may, will, should, would, could, potential, continue,
ongoing, similar expressions, and variations or negatives of these words. Examples of such forward-looking statements include, but are not limited to: (1) references to the anticipated benefits of the proposed transaction;
(2) the expected industry leadership, future technical capabilities and served markets of the individual and/or combined companies; (3) projections of pro forma revenue, cost synergies, revenue synergies, cash flow, market share and other
metrics, whether by specific market segment, or as a whole, and whether for each individual company or the combined company; (4) market expansion opportunities and systems and products that may benefit from sales growth as a result of changes
in market share or existing markets; (5) technological achievements that may be realized by the combined company, (6) the allocation of merger consideration in the transactions; (7) the financing components of the proposed
transaction; (8) potential financing opportunities, together with sources and uses of cash; (9) potential dividend growth rates; and (10) the companies ability to achieve the closing conditions and the expected date of closing
of the transaction.
These forward-looking statements are not guarantees of future results and are subject to risks, uncertainties and assumptions that
could cause actual results to differ materially and adversely from those expressed in any forward-looking statement. Important risk factors that may cause such a difference in connection with the proposed transaction include, but are not limited to,
the following factors: (1) the risk that the conditions to the closing of the transaction are not satisfied, including the risk that required approvals for the transaction from governmental authorities or the stockholders of KLA-Tencor or Lam
are not obtained; (2) litigation relating to the transaction; (3) uncertainties as to the timing of the consummation of the transaction and the ability of each party to consummate the transaction; (4) risks that the proposed
transaction disrupts the current plans and operations of KLA-Tencor or Lam; (5) the ability of KLA-Tencor and Lam to retain and hire key personnel; (6) competitive responses to the proposed transaction and the impact of competitive
products; (7) unexpected costs, charges or expenses resulting from the transaction; (8) potential adverse reactions or changes to business relationships resulting from the announcement or completion of the transaction; (9) the
combined companies ability to achieve the growth prospects and synergies expected from the transaction, as well as delays, challenges and expenses associated with integrating the combined companies existing businesses; (10) the
terms and availability of the indebtedness planned to be incurred in connection with the transaction; and (11) legislative, regulatory and economic developments, including changing business conditions in the semiconductor industry and overall
economy as well as the financial performance and
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expectations of Lams and KLA-Tencors existing and prospective customers. These risks, as well as other risks associated with the proposed transaction, will be more fully discussed in
the joint proxy statement/prospectus that will be included in the Registration Statement on Form S-4 that Lam will file with the Securities and Exchange Commission (SEC) in connection with the proposed transaction. Investors and
potential investors are urged not to place undue reliance on forward-looking statements in this document, which speak only as of this date. Neither Lam nor KLA-Tencor undertakes any obligation to revise or update publicly any forward-looking
statement to reflect future events or circumstances. Nothing contained herein constitutes or will be deemed to constitute a forecast, projection or estimate of the future financial performance of Lam, KLA-Tencor, or the merged company, whether
following the implementation of the proposed transaction or otherwise.
In addition, actual results are subject to other risks and uncertainties that
relate more broadly to Lams overall business, including those more fully described in Lams filings with the SEC including its annual report on Form 10-K for the fiscal year ended June 28, 2015 and its quarterly report on Form 10-Q
for the fiscal quarter ended September 27, 2015, and KLA-Tencors overall business and financial condition, including those more fully described in KLA-Tencors filings with the SEC including its annual report on Form 10-K for the
fiscal year ended June 30, 2015 and its quarterly report on Form 10-Q for the fiscal quarter ended September 30, 2015.
Additional
Information and Where to Find It
This document does not constitute an offer to sell or the solicitation of an offer to buy any securities or a
solicitation of any vote or approval nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.
The proposed transaction will be submitted to the stockholders of each of Lam and KLA-Tencor for their consideration. Lam intends to file with the SEC a Registration Statement on Form S-4 that will include a joint proxy statement/prospectus of Lam
and KLA-Tencor. Each of Lam and KLA-Tencor will provide the joint proxy statement/prospectus to their respective stockholders. Lam and KLA-Tencor also plan to file other documents with the SEC regarding the proposed transaction. This document is
not a substitute for any prospectus, proxy statement or any other document that Lam or KLA-Tencor may file with the SEC in connection with the proposed transaction. Investors and security holders of Lam and KLA-Tencor are urged to read the joint
proxy statement/prospectus and any other relevant documents that will be filed with the SEC carefully and in their entirety when they become available because they will contain important information about the proposed transaction. You may obtain
copies of all documents filed with the SEC regarding this transaction, free of charge, at the SECs website (www.sec.gov). In addition, investors and stockholders will be able to obtain free copies of the joint proxy statement/prospectus and
other documents filed with the SEC by Lam on Lams Investor Relations website (investor.lamresearch.com) or by writing to Lam Research Corporation, Investor Relations, 4650 Cushing Parkway, Fremont, CA 94538-6401 (for documents filed with the
SEC by Lam), or by KLA-Tencor on KLA-Tencors Investor Relations website (ir.kla-tencor.com) or by writing to KLA-Tencor Corporation, Investor Relations, One Technology Drive, Milpitas, California 95035 (for documents filed with the SEC by
KLA-Tencor).
Participants in the Solicitation
Lam,
KLA-Tencor, their respective directors, and certain of their respective executive officers, other members of management and employees, may, under SEC rules, be deemed to be participants in the solicitation of proxies from Lam and KLA-Tencor
stockholders in connection with the proposed transaction. Information regarding the persons who, under SEC rules, are or may be deemed to be participants in the solicitation of Lam and KLA-Tencor stockholders in connection with the proposed
transaction will be set forth in the joint proxy statement/prospectus when it is filed with the SEC. You can find more detailed information about Lams executive officers and directors in its definitive proxy statement filed with the SEC on
September 21, 2015. You can find more detailed information about KLA-Tencors executive officers and directors in its definitive proxy statement filed with the SEC on September 24, 2015. Additional information about Lams
executive officers and directors and KLA-Tencors executive officers and directors will be provided in the above-referenced Registration Statement on Form S-4 when it becomes available.
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Item 9.01. Financial Statements and Exhibits
(d) Exhibits
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10.1 |
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Amendment and Restatement Agreement, dated November 10, 2015 among Lam Research Corporation, JPMorgan Chase Bank, N.A., as administrative agent, and the other agents and lenders listed therein, and all exhibits and schedules
attached thereto. |
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10.2 |
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Term Loan Agreement, dated November 10, 2015, among Lam Research Corporation, JPMorgan Chase Bank, N.A., as administrative agent, and the other agents and lenders listed therein, and all exhibits and schedules attached
thereto. |
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10.3 |
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Joinder Agreement, dated as of November 10, 2015, among Lam Research Corporation and the other agents and lenders listed therein, and the schedule attached thereto. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
Date: November 12, 2015
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LAM RESEARCH CORPORATION |
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By: |
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/s/ Douglas R. Bettinger |
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Douglas R. Bettinger |
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Executive Vice President and Chief Financial Officer |
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(Principal Financial Officer and Principal Accounting Officer) |
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EXHIBIT INDEX
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10.1 |
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Amendment and Restatement Agreement, dated November 10, 2015 among Lam Research Corporation, JPMorgan Chase Bank, N.A., as administrative agent, and the other agents and lenders listed therein, together with Exhibit A
thereto. |
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10.2 |
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Term Loan Agreement, dated November 10, 2015, among Lam Research Corporation, JPMorgan Chase Bank, N.A., as administrative agent, and the other agents and lenders listed therein. |
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10.3 |
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Joinder Agreement, dated as of November 10, 2015, among Lam Research Corporation and the other agents and lenders listed therein, and the schedule attached thereto. |
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Exhibit 10.1
EXECUTION VERSION
AMENDMENT AND
RESTATEMENT AGREEMENT
This AMENDMENT AND RESTATEMENT AGREEMENT, dated as of November 10, 2015 (this
Agreement), is entered into among LAM RESEARCH CORPORATION, a Delaware corporation (the Borrower), the lenders party hereto (collectively, the Lenders and each individually, a
Lender) and JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity, together with its successors and permitted assigns, the Administrative Agent), Swingline Lender and Issuing Bank.
W I T N E S S E T H:
WHEREAS, the Borrower, each lender from time to time party thereto and the Administrative Agent are party to that certain Credit
Agreement, dated as of March 12, 2014 (as amended by Amendment No. 1, dated as of March 5, 2015, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time through the date hereof, the
Existing Credit Agreement);
WHEREAS, the parties hereto wish now to amend and restate the Existing Credit
Agreement; and
WHEREAS, in accordance with Section 9.02(b) of the Existing Credit Agreement, the Borrower, the Administrative
Agent and the Lenders party hereto agree, subject to the limitations and conditions set forth herein, to amend the Existing Credit Agreement as set forth below;
NOW THEREFORE, in consideration of the foregoing recitals, mutual agreements contained herein and for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Defined
Terms. All capitalized terms used but not defined in this Agreement shall have the respective meanings specified in the Amended Credit Agreement (as defined below).
Section 2. Amendment and Restatement. Subject to the terms and conditions set forth herein, on the Effective Date (as
defined below), the Existing Credit Agreement is hereby amended and restated in its entirety to be in the form of the Amended and Restated Credit Agreement attached as Exhibit A hereto (the Amended Credit Agreement). Each
of the parties hereto acknowledges and agrees that the terms of this Agreement do not constitute a novation but, rather, an amendment and restatement of the terms of a preexisting Indebtedness and related agreement, as evidenced by the Existing
Credit Agreement.
Section 3. Conditions to Effectiveness. The amendments and restatements contained in Exhibit
A shall become effective on the date hereof (the Effective Date) when and if each of the following conditions is satisfied:
(a) Executed Agreement. The Administrative Agent shall have received one or more counterparts of this Agreement duly executed by the
Borrower, the Administrative Agent and the Lenders.
(b) Conditions Precedent in Amended Credit Agreement. The conditions precedent
set forth in Section 4.01 of the Amended Credit Agreement attached hereto as Exhibit A have been fully satisfied or waived by the Administrative Agent.
(c) Fees and Expenses. Each of the Administrative Agent and the Lenders shall have received payment of all fees required to be paid,
and all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of Weil, Gotshal & Manages LLP) required to be paid to the Administrative Agent and the Lenders, respectively, for which an invoice of such
amount has been presented to the Borrower on or prior to the date hereof.
Section 4. Representations and Warranties. To induce the Administrative Agent
and the Lenders to enter into this Agreement, the Borrower hereby represents and warrants to the Administrative Agent and such Lenders, after giving effect to this Agreement, that:
(d) The execution, delivery and performance by the Borrower of this Agreement is within the Borrowers corporate powers and have been
duly authorized by all necessary corporate action. This Agreement has been duly executed and delivered by the Borrower and constitutes a legal, valid and binding obligation of the Borrower, 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. This Agreement
does not contravene (i) the Borrowers certificate of corporation, bylaws or other formation or other governing document or (ii) any law, rule, regulation, order or judgment applicable to, or any contractual restriction binding on or
affecting, the Borrower.
(e) No authorization or approval or other action by, and no notice to or filing with, any governmental authority
or regulatory body is required for the due execution and delivery by the Borrower of this Agreement or the performance by the Borrower of this Agreement or the Amended Credit Agreement.
Section 5. Miscellaneous.
(f) New Lenders. Each Lender which is not a party to the Existing Credit Agreement shall, by its execution of this Agreement, be deemed
to be a Lender under the Amended Credit Agreement, bound by the provisions thereof as a Lender thereunder and shall have the obligations of a Lender thereunder.
(g) Confirmation of Loan Documents. Except as expressly provided in this Agreement, each of the parties hereto hereby ratifies and
confirms all of the terms and conditions of the Existing Credit Agreement and the other Loan Documents to which it is a party and all documents, instruments and agreements related thereto, which remain in full force and effect, in each case, as
modified pursuant to the terms hereof and of the Amended Credit Agreement. The Borrower hereby reconfirms its obligations pursuant to the Existing Credit Agreement to pay and reimburse the Administrative Agent and the Lenders for all reasonable
out-of-pocket expenses (including reasonable fees and expenses of Weil, Gotshal & Manges LLP, counsel to the Administrative Agent) incurred in connection with the negotiation, preparation, execution and delivery of this Agreement to the
extent required by Section 9.03(a) of the Existing Credit Agreement, as amended hereby. The Existing Credit Agreement, together with this Agreement and the Amended Credit Agreement, shall be read and construed as a single agreement. All
references in the Loan Documents to the Existing Credit Agreement or any other Loan Document shall hereafter refer to the Amended Credit Agreement or any other Loan Document as amended hereby. This Agreement shall constitute a Loan Document.
(h) Limitation of this Agreement. The amendments set forth in the Amended Credit Agreement are effective solely for the purposes set
forth herein and shall be limited precisely as written. Except as expressly provided herein, this Agreement shall not be deemed to (i) be a consent to any amendment, waiver or modification of any other term or condition of the Existing Credit
Agreement or
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any other Loan Document, or (ii) operate as a waiver or otherwise prejudice any right, power or remedy that the Borrower, the Administrative Agent or the Lenders may now have or may have in
the future under or in connection with the Existing Credit Agreement or any other Loan Document, except as specifically set forth herein. From and after the effectiveness of such amendment, the terms Agreement, this
Agreement, herein, hereinafter, hereto, hereof and words of similar import, as used in the Amended Credit Agreement, shall, unless the context otherwise requires, refer to the Existing Credit
Agreement as amended in the form of the Amended Credit Agreement, and the term Credit Agreement, as used in the other Loan Documents, shall mean the Amended Credit Agreement. This Agreement shall be construed in connection with and as
part of the Amended Credit Agreement.
(i) No Novation. This Agreement shall not extinguish the Loans or any other Obligations
outstanding under the Existing Credit Agreement. Nothing herein contained shall be construed as a substitution or novation of the Loans or any other Obligations outstanding under the Existing Credit Agreement, which shall remain outstanding after
the Effective Date as modified hereby. Notwithstanding any provision of this Agreement, the provisions of Sections 2.15, 2.16, 2.17 and 9.03 of the Existing Credit Agreement as in effect immediately prior to the Effective Date will continue to be
effective as to all matters arising out of or in any way related to facts or events existing or occurring prior to the Effective Date.
(j) Captions. Section headings 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.
(k) Governing Law. This Agreement shall be
governed by, and construed in accordance with, the law of the State of New York.
(l) Counterparts. This Agreement 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 one and the same agreement. Receipt by
facsimile or electronic transmission of any executed signature page to this Agreement shall constitute effective delivery of such signature page.
(m) Successors and Assigns. This Agreement shall be binding upon and shall inure to the sole benefit of the Borrower, the
Administrative Agent and the Lenders and their respective successors and assigns.
(n) References. Any reference to the Existing
Credit Agreement contained in any notice, request, certificate, or other document executed concurrently with or after the execution and delivery of this Agreement shall be deemed to include this Agreement unless the context shall otherwise require.
[Signature Pages Follow]
3
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as
of the date first above written.
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JPMORGAN CHASE BANK, N.A., |
as Administrative Agent and as a Lender |
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By: |
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/s/ Caitlin Stewart |
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Name: |
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Caitlin Stewart |
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Title: |
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Vice President |
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GOLDMAN SACHS BANK USA, |
as a Lender |
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By: |
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/s/ Robert Ehudin |
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Name: |
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Robert Ehudin |
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Title: |
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Authorized Signatory |
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BARCLAYS BANK PLC, |
as a Lender |
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By: |
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/s/ Vanessa Kurbatskiy |
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Name: |
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Vanessa Kurbatskiy |
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Title: |
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Vice President |
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CITIBANK, N.A., |
as a Lender |
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By: |
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/s/ Richard Rivera |
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Name: |
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Richard Rivera |
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Title: |
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Vice President |
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BANK OF AMERICA, |
as a Lender |
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By: |
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/s/ Mukesh Singh |
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Name: |
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Mukesh Singh |
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Title: |
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Vice President |
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BNP PARIBAS, |
as a Lender |
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By: |
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/s/ Nicolas Rabier |
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Name: |
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Nicolas Rabier |
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Title: |
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Managing Director |
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By: |
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/s/ Karim Remtouia |
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Name: |
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Karim Remtouia |
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Title: |
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Vice President |
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DEUTSCHE BANK AG NEW YORK BRANCH, |
as a Lender |
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By: |
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/s/ Ming K. Chu |
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Name: |
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Ming K. Chu |
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Title: |
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Vice President |
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By: |
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/s/ Virginia Cosenza |
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Name: |
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Virginia Cosenza |
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Title: |
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Vice President |
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MIZUHO BANK, LTD., |
as a Lender |
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By: |
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/s/ Bertram H. Tang |
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Name: |
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Bertram H. Tang |
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Title: |
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Authorized Signatory |
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THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., |
as a Lender |
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By: |
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/s/ Lillian Kim |
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Name: |
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Lillian Kim |
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Title: |
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Director |
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WELLS FARGO BANK, N.A., |
as a Lender |
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By: |
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/s/ Matthew S. Thoreson |
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Name: |
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Matthew S. Thoreson |
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Title: |
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Senior Vice President |
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DBS BANK LTD., |
as a Lender |
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By: |
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/s/ Saif Amin |
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Name: |
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Saif Amin |
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Title: |
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VP, IBG-TMT |
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HSBC BANK USA, N.A., |
as a Lender |
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By: |
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/s/ Christopher L. Snider |
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Name: |
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Christopher L. Snider |
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Title: |
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Vice President, Senior Relationship Manager |
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PNC BANK, NATIONAL ASSOCIATION, |
as a Lender |
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By: |
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/s/ David B. Mitchell |
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Name: |
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David B. Mitchell |
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Title: |
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EVP |
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SUNTRUST BANK, |
as a Lender |
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By: |
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/s/ Min Park |
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Name: |
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Min Park |
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Title: |
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Authorized Signatory |
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Accepted and Agreed: |
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LAM RESEARCH CORPORATION |
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By: |
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/s/ Douglas R. Bettinger |
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Name: |
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Douglas R. Bettinger |
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Title: |
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Executive Vice President and Chief Financial Officer |
Exhibit A
Amended and Restated Credit Agreement
[To be provided under separate cover]
EXECUTION VERSION
EXHIBIT A
AMENDED AND RESTATED CREDIT
AGREEMENT
dated as of
November 10, 2015
among
LAM RESEARCH CORPORATION
the Lenders Party Hereto
JPMORGAN CHASE BANK, N.A.
as
Administrative Agent
GOLDMAN SACHS BANK USA,
BARCLAYS BANK PLC
and
CITIBANK, N.A.
as Syndication
Agents
and
BANK OF AMERICA,
N.A.,
BNP PARIBAS,
DEUTSCHE
BANK SECURITIES INC.,
MIZUHO BANK, LTD.,
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
and
WELLS FARGO BANK, N.A.
as Documentation Agents
GOLDMAN SACHS BANK USA,
JPMORGAN CHASE BANK, N.A.,
BARCLAYS BANK PLC
and
CITIBANK, N.A.
as Joint
Bookrunners and Joint Lead Arrangers
TABLE OF CONTENTS
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Page |
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ARTICLE I |
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DEFINITIONS |
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1 |
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Section 1.01. |
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Defined Terms |
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1 |
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Section 1.02. |
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Classification of Loans and Borrowings |
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18 |
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Section 1.03. |
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Terms Generally |
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18 |
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Section 1.04. |
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Accounting Terms; GAAP; Pro Forma Calculations |
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19 |
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Section 1.05. |
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Status of Obligations |
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19 |
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ARTICLE II |
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THE CREDITS |
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20 |
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Section 2.01. |
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Commitments |
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20 |
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Section 2.02. |
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Loans and Borrowings |
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20 |
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Section 2.03. |
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Requests for Revolving Borrowings |
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20 |
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Section 2.04. |
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Determination of Dollar Amounts |
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21 |
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Section 2.05. |
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Swingline Loans |
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21 |
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Section 2.06. |
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Letters of Credit |
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22 |
|
Section 2.07. |
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Funding of Borrowings |
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26 |
|
Section 2.08. |
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Interest Elections |
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26 |
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Section 2.09. |
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Termination and Reduction of Commitments |
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27 |
|
Section 2.10. |
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Repayment of Loans; Evidence of Debt |
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28 |
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Section 2.11. |
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Prepayment of Loans |
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28 |
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Section 2.12. |
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Fees |
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29 |
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Section 2.13. |
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Interest |
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30 |
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Section 2.14. |
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Alternate Rate of Interest |
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30 |
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Section 2.15. |
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Increased Costs |
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31 |
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Section 2.16. |
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Break Funding Payments |
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32 |
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Section 2.17. |
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Taxes |
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32 |
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Section 2.18. |
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Payments Generally; Pro Rata Treatment; Sharing of Set-offs |
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35 |
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Section 2.19. |
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Mitigation Obligations; Replacement of Lenders |
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37 |
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Section 2.20. |
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Expansion Option |
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37 |
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Section 2.21. |
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Judgment Currency |
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38 |
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Section 2.22. |
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Defaulting Lenders |
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|
39 |
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ARTICLE III |
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REPRESENTATIONS AND WARRANTIES |
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|
40 |
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Section 3.01. |
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Organization; Powers; Subsidiaries |
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40 |
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Section 3.02. |
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Authorization; Enforceability |
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40 |
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Section 3.03. |
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Governmental Approvals; No Conflicts |
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40 |
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Section 3.04. |
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Financial Condition; No Material Adverse Change |
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41 |
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Section 3.05. |
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Properties |
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41 |
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Section 3.06. |
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Litigation, Environmental and Labor Matters |
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41 |
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Section 3.07. |
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Compliance with Laws and Agreements |
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41 |
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Section 3.08. |
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Margin Regulations; Investment Company Status |
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42 |
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Section 3.09. |
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Taxes |
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42 |
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Section 3.10. |
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ERISA |
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42 |
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Section 3.11. |
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Disclosure |
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42 |
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Section 3.12. |
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Federal Reserve Regulations |
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42 |
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Section 3.13. |
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Liens |
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42 |
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Section 3.14. |
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No Default |
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42 |
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Section 3.15. |
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Anti-Corruption Laws and Sanctions |
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42 |
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ARTICLE IV |
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CONDITIONS |
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42 |
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Section 4.01. |
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Effective Date |
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42 |
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Section 4.02. |
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Each Credit Event |
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43 |
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ii
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ARTICLE V |
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AFFIRMATIVE COVENANTS |
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|
44 |
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Section 5.01. |
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Financial Statements and Other Information |
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44 |
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Section 5.02. |
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Notices of Material Events |
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45 |
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Section 5.03. |
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Existence; Conduct of Business |
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45 |
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Section 5.04. |
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Payment of Obligations |
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45 |
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Section 5.05. |
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Maintenance of Properties; Insurance |
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45 |
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Section 5.06. |
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Books and Records; Inspection Rights |
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45 |
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Section 5.07. |
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Compliance with Laws and Material Contractual Obligations |
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46 |
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Section 5.08. |
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Use of Proceeds |
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46 |
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Section 5.09. |
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Subsidiary Guaranty |
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46 |
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ARTICLE VI |
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NEGATIVE COVENANTS |
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46 |
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Section 6.01. |
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Subsidiary Indebtedness |
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46 |
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Section 6.02. |
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Liens |
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47 |
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Section 6.03. |
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Fundamental Changes and Asset Sales |
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48 |
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Section 6.04. |
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Transactions with Affiliates |
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49 |
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Section 6.05. |
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Financial Covenants |
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49 |
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ARTICLE VII |
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EVENTS OF DEFAULT |
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49 |
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ARTICLE VIII |
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THE ADMINISTRATIVE AGENT |
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51 |
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ARTICLE IX |
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MISCELLANEOUS |
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53 |
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Section 9.01. |
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Notices |
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53 |
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Section 9.02. |
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Waivers; Amendments |
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54 |
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Section 9.03. |
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Expenses; Indemnity; Damage Waiver |
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55 |
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Section 9.04. |
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Successors and Assigns |
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57 |
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Section 9.05. |
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Survival |
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59 |
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Section 9.06. |
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Counterparts; Integration; Effectiveness; Electronic Execution |
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60 |
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Section 9.07. |
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Severability |
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60 |
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Section 9.08. |
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Right of Setoff |
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60 |
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Section 9.09. |
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Governing Law; Jurisdiction; Consent to Service of Process |
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60 |
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Section 9.10. |
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WAIVER OF JURY TRIAL |
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61 |
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Section 9.11. |
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Headings |
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61 |
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Section 9.12. |
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Confidentiality |
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61 |
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Section 9.13. |
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USA PATRIOT Act |
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62 |
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Section 9.14. |
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Releases of Subsidiary Guarantors |
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62 |
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Section 9.15. |
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Interest Rate Limitation |
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62 |
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Section 9.16. |
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No Advisory or Fiduciary Responsibility |
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63 |
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ARTICLE X |
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BORROWER GUARANTEE |
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63 |
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iii
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SCHEDULE 2.01 |
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COMMITMENTS |
SCHEDULE 3.01 |
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SUBSIDIARY GUARANTORS |
SCHEDULE 3.06 |
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LITIGATION |
SCHEDULE 6.01 |
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INDEBTEDNESS |
SCHEDULE 6.02 |
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LIENS |
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EXHIBIT A |
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ASSIGNMENT AND ASSUMPTION |
EXHIBIT B |
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[RESERVED] |
EXHIBIT C |
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FORM OF INCREASING LENDER SUPPLEMENT |
EXHIBIT D |
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FORM OF AUGMENTING LENDER SUPPLEMENT |
EXHIBIT E |
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[RESERVED] |
EXHIBIT F |
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FORM OF SUBSIDIARY GUARANTY |
EXHIBIT G-1 |
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FORM OF U.S. TAX COMPLIANCE CERTIFICATE |
EXHIBIT G-2 |
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FORM OF U.S. TAX COMPLIANCE CERTIFICATE |
EXHIBIT G-3 |
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FORM OF U.S. TAX COMPLIANCE CERTIFICATE |
EXHIBIT G-4 |
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FORM OF U.S. TAX COMPLIANCE CERTIFICATE |
EXHIBIT H-1 |
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FORM OF BORROWING REQUEST |
EXHIBIT H-2 |
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FORM OF INTEREST ELECTION REQUEST |
EXHIBIT I |
|
FORM OF NOTE |
iv
AMENDED AND RESTATED CREDIT AGREEMENT (this Agreement), dated as of
November 10, 2015 among LAM RESEARCH CORPORATION, the LENDERS from time to time party hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
ABR, when used in reference to any Loan or Borrowing, refers to a Loan, or the Loans comprising such Borrowing, bearing
interest at a rate determined by reference to the Alternate Base Rate.
Adjusted LIBO Rate means, with respect to any
Eurocurrency Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
Administrative Agent means JPMorgan Chase Bank, N.A. (including its branches and affiliates), in its capacity as
administrative agent for the Lenders hereunder.
Administrative Questionnaire means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
Affiliate means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
Agency Fee Letter means the agency fee letter agreement, dated as of November 10, 2015, between the Borrower and the
Administrative Agent.
Agent Party has the meaning assigned to such term in Section 9.01(d).
Aggregate Commitment means the aggregate of the Commitments of all of the Lenders, as reduced or increased from time to
time pursuant to the terms and conditions hereof. As of the Effective Date, the Aggregate Commitment is $750,000,000.
Agreed
Currencies means (i) Dollars, (ii) euro, (iii) Pounds Sterling, (iv) Japanese Yen and (v) any other currency (x) that is a lawful currency (other than Dollars) that is readily available and freely transferable
and convertible into Dollars, (y) for which a LIBOR Screen Rate is available in the Administrative Agents determination and (z) that is agreed to by the Administrative Agent and each of the Lenders.
Agreement has the meaning assigned to such term in the preamble hereto.
Alternate Base Rate means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such
day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period in Dollars on such day (or if such day is not a Business Day, the immediately preceding Business
Day) plus 1%, provided that, for the avoidance of doubt, the Adjusted LIBO Rate for any day shall be based on the rate appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such page) at approximately 11:00 a.m.
London time on such day. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate,
the Federal Funds Effective Rate or the Adjusted LIBO Rate, respectively.
Anti-Corruption Laws means all laws, rules, and regulations of any
jurisdiction applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption.
Applicable Percentage means, with respect to any Lender, the percentage of the Aggregate Commitment represented by such
Lenders Commitment; provided that, in the case of Section 2.22 when a Defaulting Lender shall exist, Applicable Percentage shall mean the percentage of the Aggregate Commitment (disregarding any Defaulting
Lenders Commitment) represented by such Lenders Commitment. If the Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Commitments most recently in effect, giving effect to any
assignments and to any Lenders status as a Defaulting Lender at the time of determination.
Applicable Rate
means, for any day, with respect to any Eurocurrency Loan or any ABR Loan or with respect to the facility fees payable hereunder, as the case may be, the applicable rate per annum set forth below under the caption Eurocurrency Spread,
ABR Spread or Facility Fee Rate, as the case may be, based upon the ratings by Moodys and S&P, respectively, applicable on such date to the Index Debt:
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Index Debt Ratings (Moodys/S&P) |
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Facility Fee |
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Eurocurrency Spread |
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ABR Spread |
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Category 1 |
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A3/A- or higher |
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0.10 |
% |
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0.90 |
% |
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|
0 |
% |
Category 2 |
|
Baa1/BBB+ |
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|
0.125 |
% |
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|
1.00 |
% |
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0 |
% |
Category 3 |
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Baa2/BBB |
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|
0.15 |
% |
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|
1.10 |
% |
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|
0.10 |
% |
Category 4 |
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Baa3/BBB- |
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|
0.20 |
% |
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|
1.30 |
% |
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|
0.30 |
% |
Category 5 |
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Ba1/BB+ or lower |
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|
0.25 |
% |
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|
1.50 |
% |
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|
0.50 |
% |
For purposes of the foregoing, (i) if either Moodys or S&P shall not have in effect a rating
for the Index Debt (other than by reason of the circumstances referred to in the last sentence of this definition), then such rating agency shall be deemed to have established a rating in Category 5; (ii) if the ratings established or deemed to
have been established by Moodys and S&P for the Index Debt shall fall within different Categories, the Category then in effect shall be based on the higher of the two ratings unless one of the two ratings is two or more Categories lower
than the other, in which case the Category then in effect shall be determined by reference to the Category next below that of the higher of the two ratings; and (iii) if the ratings established or deemed to have been established by Moodys
and S&P for the Index Debt shall be changed (other than as a result of a change in the rating system of Moodys or S&P), such change shall be effective as of the date on which it is first announced by the applicable rating agency,
irrespective of when notice of such change shall have been furnished by the Borrower to the Administrative Agent and the Lenders pursuant to the Loan Documents or otherwise. Each change in the Applicable Rate shall apply during the period commencing
on the effective date of such change and ending on the date immediately preceding the effective date of the next such change. If the rating system of Moodys or S&P shall change, or if either such rating agency shall cease to be in the
business of rating corporate debt obligations, the Borrower and the Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Rate shall be determined by reference to the rating most recently in effect prior to such change or cessation.
Approved Fund has the meaning assigned to such term in Section 9.04(b).
Arrangers means Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A., Barclays Bank PLC and Citibank, N.A., in their
respective capacities as a Joint Lead Arranger and Joint Bookrunner with respect hereto.
Arranger Fee Letter means the
fee letter agreement, dated as of October 20, 2015, among the Borrower and Goldman Sachs Bank USA.
Assignment and
Assumption means an assignment and assumption agreement entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
2
Attributable Debt means, with respect to any Sale and Leaseback Transaction,
the present value (discounted at the rate set forth or implicit in the terms of the lease included in such Sale and Leaseback Transaction) of the total obligations of the lessee for rental payments (other than amounts required to be paid on account
of taxes, maintenance, repairs, insurance, assessments, utilities, operating and labor costs and other items that do not constitute payments for property rights) during the remaining term of the lease included in such Sale and Leaseback Transaction
(including any period for which such lease has been extended). In the case of any lease that is terminable by the lessee upon payment of a penalty, the Attributable Debt shall be the lesser of the Attributable Debt determined assuming termination on
the first date such lease may be terminated (in which case the Attributable Debt shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be
so terminated) or the Attributable Debt determined assuming no such termination.
Augmenting Lender has the meaning
assigned to such term in Section 2.20.
Availability Period means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of termination of the Commitments.
Banking
Services means each and any of the following bank services provided to the Borrower or any Subsidiary by any Lender or any of its Affiliates: (a) credit cards for commercial customers (including, without limitation, commercial credit
cards and purchasing cards), (b) stored value cards and (c) treasury management services (including, without limitation, controlled disbursement, automated clearinghouse transactions, return items, overdrafts and interstate depository
network services).
Banking Services Agreement means any agreement entered into by the Borrower or any Subsidiary in
connection with Banking Services.
Bankruptcy Event means, with respect to any Person, such Person becomes the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it,
or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall
not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, provided, further, that such ownership interest does not result
in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to
reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.
Board means the Board of
Governors of the Federal Reserve System of the United States of America.
Borrower means Lam Research Corporation, a
Delaware corporation.
Borrowing means (a) Revolving Loans of the same Type, made, converted or continued on the
same date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect or (b) a Swingline Loan.
Borrowing Request means a request by the Borrower for a Revolving Borrowing in accordance with Section 2.03 in
the form attached hereto as Exhibit H-1.
Business Day means any day that is not a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law to remain closed; provided that, when used in connection with a Eurocurrency Loan, the term Business Day shall also exclude any day on which banks
are not open for dealings in the relevant Agreed Currency in the London interbank market or the principal financial center of such Agreed Currency (and, if the Borrowings or LC Disbursements which are the subject of a borrowing, drawing, payment,
reimbursement or rate selection are denominated in euro, the term Business Day shall also exclude any day on which the TARGET2 payment system is not open for the settlement of payments in euro).
3
Capitalization Covenant has the meaning assigned to such term in
Section 6.05(a).
Capital Lease Obligations of any Person means the obligations of such Person to pay rent
or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital lease obligations on a balance
sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
Change in Control means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any
Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof), of Equity Interests representing more than 40% of the aggregate ordinary voting power represented by the
issued and outstanding Equity Interests of the Borrower; or (b) occupation of a majority of the seats (other than vacant seats) on the board of directors of the Borrower by Persons who were neither (i) approved by the board of directors of
the Borrower nor (ii) appointed by directors so approved.
Change in Law means the occurrence, after the date of
this Agreement (or with respect to any Lender, if later, the date on which such Lender becomes a Lender), of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule,
regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority, or (c) the making or issuance of any request, rules, guideline, requirement or directive (whether or not having
the force of law) by any Governmental Authority; provided however, that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines,
requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a Change in Law regardless of the
date enacted, adopted, issued or implemented.
Charges has the meaning assigned to such term in
Section 9.15.
Class, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.
Code means the Internal Revenue Code of 1986,
as amended.
COF Rate has the meaning assigned to such term in Section 2.14(a).
Commitment means, with respect to each Lender, the commitment of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lenders Revolving Credit Exposure hereunder, as such commitment may be (a) reduced or terminated
from time to time pursuant to Section 2.09, (b) increased from time to time pursuant to Section 2.20 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lenders Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption or other documentation contemplated hereby pursuant to which such Lender shall have assumed its
Commitment, as applicable.
Communications has the meaning assigned to such term in Section 9.01(d).
Computation Date is defined in Section 2.04.
Connection Income Taxes means Other Connection Taxes that are imposed on or measured by net income (however denominated) or
that are franchise Taxes or branch profits Taxes.
Consolidated Adjusted EBITDA means, for any period, an amount
determined for the Borrower and its Subsidiaries on a consolidated basis equal to (i) Consolidated Adjusted Net Income, plus (ii) the sum, without
4
duplication, to the extent not already added in the definition of Consolidated Adjusted Net Income, of the amounts for such period of (a) consolidated interest expense of the Borrower and
its Subsidiaries, plus (b) provisions for taxes based on income, plus (c) total depreciation expense, plus (d) total amortization expense, plus (e) losses from dispositions of assets or liabilities outside of the ordinary course
of business, plus (f) other non-cash items reducing Consolidated Adjusted Net Income (excluding any such non-cash item to the extent that it represents an accrual
or reserve for potential cash items in any future period or amortization of a prepaid cash item that was paid in a prior period), plus (g) for any period ending during the first four fiscal quarters ending following the KLA-Tencor Acquisition
Closing Date, the amount of cost savings and synergies projected by the Borrower in good faith to be realized in connection with the Acquisition within 12 months of the KLA-Tencor Acquisition Closing Date, which cost savings and synergies shall be
deemed to have been realized on the first day of such period; provided that (1) such cost savings and synergies are reasonably identifiable, reasonably attributable to the Acquisition and certified by a financial officer of the Borrower
in writing to the Administrative Agent, (2) the Borrower has initiated or will initiate within a period of time following the KLA-Tencor Acquisition Closing Date that is reasonably anticipated to permit such cost savings and synergies to be
realized within 12 months of the KLA-Tencor Acquisition Closing Date appropriate actions to realize such cost savings and synergies, and (3) the aggregate amount of cost savings and synergies added pursuant to this clause (g) shall
not exceed $100,000,000 for any such period of four consecutive fiscal quarters, minus (iii) the sum, without duplication, to the extent not already deducted in the definition of Consolidated Adjusted Net Income, of the amounts for such
period of (a) other non-cash items increasing Consolidated Adjusted Net Income for such period (excluding any such non-cash item to the extent it represents the
reversal of an accrual or reserve for potential cash item in any prior period), plus (b) interest income, plus (c) other income, plus (d) gains from dispositions of assets or liabilities outside of the ordinary course of business for
such period. If during such period, the Borrower or any of its Subsidiaries shall have made an acquisition or disposition for consideration in excess of $50,000,000, Consolidated Adjusted EBITDA for such period shall be calculated on a pro forma
basis in accordance with Section 1.04(b), provided that pro forma cost savings and synergies shall not be included except to the extent covered by clause (ii)(g).
Consolidated Adjusted Net Income means, for any period, (i) the net income (or loss) of the Borrower and its
Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP, plus (ii) the sum of (a) amortization of intangible assets acquired in connection with the Novellus
Acquisition, plus (b) effects of purchase accounting adjustments made in relation to any consummated acquisition, plus (c) any impairment charges or asset write-offs, including impairment charges or asset write-offs related to intangible
assets (including goodwill) and long-lived assets, plus (d) any restructuring charges, plus (e) any amortization expense related to notes discounts, plus (f) actual integration costs associated with any consummated acquisition
minus (iii) the sum of (a) the income (or loss) of any Person (other than a Subsidiary of the Borrower) in which any other Person (other than the Borrower or any of its Subsidiaries) has a joint interest, plus (b) the income
(or loss) of any Person accrued prior to the date it becomes a Subsidiary of the Borrower or is merged into or consolidated with the Borrower or any of its Subsidiaries or that Persons assets are acquired by the Borrower or any of its
Subsidiaries, plus (c) the income of any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of that income is not at the time permitted by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary, plus (d) one-time significant gains, plus (e) any restructuring gains.
Consolidated Capitalization means at any time the sum of (a) Consolidated Total Indebtedness as of such time and
(b) consolidated shareholders equity of the Borrower and its Subsidiaries as of such time determined in accordance with GAAP.
Consolidated Total Assets means, as of the date of any determination thereof, total assets of the Borrower and its
Subsidiaries calculated in accordance with GAAP on a consolidated basis as of such date.
Consolidated Total
Indebtedness means at any time the sum, without duplication, of (a) the aggregate Indebtedness of the Borrower and its Subsidiaries calculated on a consolidated basis as of such time in accordance with GAAP (but subject to
Section 1.04), (b) the aggregate amount of Indebtedness of the Borrower and its Subsidiaries relating to the maximum drawing amount of all letters of credit outstanding and bankers acceptances and (c) Indebtedness of the type
referred to in clauses (a) or (b) hereof of another Person guaranteed by the Borrower or any of its Subsidiaries; provided, that the foregoing shall not include any Excluded Acquisition Debt for the applicable period
set forth in the definition thereof.
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Control means the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. The terms Controlling and Controlled have meanings correlative thereto.
Convertible Debt means any Indebtedness issued or incurred pursuant to any of (a) the Existing Convertible Notes and
(b) any other unsecured notes issued by the Borrower that are convertible into common stock of the Borrower, cash or any combination thereof.
Credit Event means a Borrowing, the issuance, amendment, renewal or extension of a Letter of Credit, an LC Disbursement or
any of the foregoing.
Credit Party means the Administrative Agent, the Issuing Bank, the Swingline Lender or any other
Lender.
Default means any event or condition which constitutes an Event of Default or which upon notice, lapse of time
or both would, unless cured or waived, become an Event of Default.
Defaulting Lender means any Lender that
(a) has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its participations in Letters of Credit or Swingline Loans or (iii) pay over to
any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lenders good faith
determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Borrower or any Credit Party in writing, or has made a public statement to
the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lenders good faith determination that a
condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed,
within three Business Days after request by a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations to fund prospective Loans and participations
in then outstanding Letters of Credit and Swingline Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Partys receipt of such
certification in form and substance satisfactory to it and the Administrative Agent, or (d) has become the subject of a Bankruptcy Event.
Documentation Agent means each of Bank of America, N.A., BNP Paribas, Deutsche Bank Securities Inc., Mizuho Bank, Ltd., The
Bank of Tokyo-Mitsubishi UFJ Ltd. and Wells Fargo Bank, N.A., in its capacity as co-documentation agent for the credit facility evidenced by this Agreement.
Dollar Amount of any currency at any date means (i) the amount of such currency if such currency is Dollars or
(ii) the equivalent amount thereof in Dollars if such currency is a Foreign Currency, calculated on the basis of the Exchange Rate for such currency, on or as of the most recent Computation Date provided for in Section 2.04.
Dollars or $ refers to lawful money of the United States of America.
Domestic Subsidiary means a Subsidiary organized under the laws of a jurisdiction located in the United States of America
or any political subdivision thereof.
Effective Date means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
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Electronic Signature means an electronic sound, symbol, or process attached
to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
Electronic System means any electronic system, including e-mail, e-fax, Intralinks®, ClearPar® and any other
Internet or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent and the Issuing Bank and any of its respective Related Parties or any other Person, providing for access to data protected by
passcodes or other security system.
Eligible Investments means:
(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from S&P or from Moodys;
(c) investments in certificates of deposit, bankers acceptances
and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of
the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above
and entered into with a financial institution satisfying the criteria described in clause (c) above;
(e) money market funds
that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moodys and (iii) have portfolio assets of at least $2,000,000,000; and
(f) any other investment permitted under the Borrowers investment policy as in effect on the Effective Date and previously disclosed to
the Administrative Agent, and as amended, restated, modified or supplemented from time to time by the Borrowers treasury strategy committee with the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed).
Environmental Laws means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions,
notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
Environmental Liability means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
Equity Interests means shares of capital stock, partnership interests, membership interests in a limited liability company,
beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any of the foregoing.
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Equivalent Amount of any currency with respect to any amount of Dollars at any
date shall mean the equivalent in such currency of such amount of Dollars, calculated on the basis of the Exchange Rate for such other currency at 11:00 a.m., London time, on the date on or as of which such amount is to be determined.
ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time.
ERISA Affiliate means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a
single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
ERISA Event means (a) any reportable event, as defined in Section 4043 of ERISA or the regulations
issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the failure to satisfy the minimum funding standard (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to
an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal of the Borrower
or any of its ERISA Affiliates from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition upon the Borrower or any of its ERISA Affiliates of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
euro and/or means the single currency of the Participating Member States.
Eurocurrency, when used in reference to a currency means an Agreed Currency and when used in reference to any Loan or
Borrowing, means that such Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the Adjusted LIBO Rate.
Eurocurrency Payment Office of the Administrative Agent shall mean, for each Foreign Currency, the office, branch,
affiliate or correspondent bank of the Administrative Agent for such currency as specified from time to time by the Administrative Agent to the Borrower and each Lender.
Event of Default has the meaning assigned to such term in Article VII.
Exchange Rate means, on any day, with respect to any Foreign Currency, the rate at which such Foreign Currency may be
exchanged into Dollars, as set forth at approximately 11:00 a.m., Local Time, on such date on the Reuters World Currency Page for such Foreign Currency. In the event that such rate does not appear on any Reuters World Currency Page, the Exchange
Rate with respect to such Foreign Currency shall be determined by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the Administrative Agent or, in the event no such service is
selected, such Exchange Rate shall instead be calculated on the basis of the arithmetical mean of the buy and sell spot rates of exchange of the Administrative Agent for such Foreign Currency on the London market at 11:00 a.m., Local Time, on such
date for the purchase of Dollars with such Foreign Currency, for delivery two Business Days later; provided, that if at the time of any such determination, for any reason, no such spot rate is being quoted, the Administrative Agent, after
consultation with the Borrower, may use any reasonable method it deems appropriate to determine such rate, and such determination shall be conclusive absent manifest error.
Excluded Acquisition Debt means, until the first to occur of (i) the KLA-Tencor Acquisition Closing Date and
(ii) the date that is ten calendar days following termination of the KLA-Tencor Acquisition Agreement, Indebtedness in an aggregate principal amount not to exceed $4,200,000,000 issued or borrowed by the Borrower or any of its Subsidiaries
solely for the purpose of financing the KLA-Tencor Acquisition and which is redeemable or prepayable at not more than 101% of the principal amount thereof (plus accrued interest) if the KLA-Tencor Acquisition is not consummated.
8
Excluded Taxes means any of the following Taxes imposed on or with respect to
a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of
such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are
Other Connection Taxes, (b) in the case of a Lender, U.S. Federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on
the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.19(b)) or (ii) such Lender changes its lending office, except in
each case to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were payable either to such Lenders assignor immediately before such Lender acquired the applicable interest in a Loan or Commitment or to
such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipients failure to comply with Section 2.17(f) and (d) any U.S. Federal withholding Taxes imposed under FATCA.
Existing Convertible Notes means (i) the 0.50% Convertible Senior Notes due 2016 issued pursuant to the Indenture
between the Borrower and The Bank of New York Mellon Trust Company, N.A., as Trustee, dated as of May 11, 2011, (ii) the 1.25% Convertible Senior Notes due 2018 issued pursuant to the Indenture between the Borrower and The Bank of New York
Mellon Trust Company, N.A., as Trustee, dated as of May 11, 2011 and (iii) the Novellus Convertible Notes.
FATCA means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version
that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code and applicable
intergovernmental agreements and related legislation or official administrative rules or practices with respect thereto.
Federal
Funds Effective Rate means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of
the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
Fee Letters means the Arranger Fee Letter and the Agency Fee Letter.
Financial Officer means the chief financial officer, principal financial officer, principal accounting officer, treasurer,
vice president of finance, controller or assistant controller of the Borrower.
Financials means the annual or
quarterly financial statements, and accompanying certificates and other documents, of the Borrower and its Subsidiaries required to be delivered pursuant to Section 5.01(a) or 5.01(b).
Foreign Currencies means Agreed Currencies other than Dollars.
Foreign Currency LC Exposure means, at any time, the sum of (a) the Dollar Amount of the aggregate undrawn and
unexpired amount of all outstanding Foreign Currency Letters of Credit at such time plus (b) the aggregate principal Dollar Amount of all LC Disbursements in respect of Foreign Currency Letters of Credit that have not yet been reimbursed at
such time.
Foreign Currency Letter of Credit means a Letter of Credit denominated in a Foreign Currency.
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Foreign Lender means (a) if the Borrower is a U.S. Person, a Lender, with
respect to such Borrower, that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender, with respect to such Borrower, that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is
resident for tax purposes.
GAAP means generally accepted accounting principles in the United States of America.
Governmental Authority means the government of the United States of America, any other nation or any political subdivision
thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining
to government.
Guarantee of or by any Person (the guarantor) means any obligation, contingent or
otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the primary obligor) in any manner, whether directly or indirectly, and including any
obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any
security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.
Hazardous Materials means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes
or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.
Impacted Interest Period has the meaning assigned to such term in the definition of
LIBO Rate.
Increasing Lender has the meaning assigned to such term in Section 2.20.
Incremental Term Loan has the meaning assigned to such term in Section 2.20.
Incremental Term Loan Amendment has the meaning assigned to such term in Section 2.20.
Indebtedness of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with
respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all
obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding
current accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all
obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in respect of bankers acceptances, (k) all
Attributable Debt of such Person and (l) any other Off-Balance Sheet Liability (excluding obligations and liabilities to the extent the same are (1) cash collateralized or (2) segregated in a restricted account and reflected on the
balance sheet of such Person as restricted cash) of such Person. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is
liable therefor as a result of such Persons ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.
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Indemnified Taxes means (a) Taxes, other than Excluded Taxes, imposed on
or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
Indemnitee has the meaning assigned to such term in Section 9.03(b).
Index Debt means senior, unsecured, long-term indebtedness for borrowed money of the Borrower that is not Guaranteed by any
other Person or subject to any other credit enhancement.
Ineligible Institution has the meaning assigned to such term
in Section 9.04(b).
Information has the meaning assigned to such term in Section 9.12.
Information Memorandum means the Confidential Information Memorandum, dated October 2015 relating to the Borrower and the
Transactions.
Interest Election Request means a request by the Borrower to convert or continue a Revolving Borrowing
in accordance with Section 2.08 in the form attached hereto as Exhibit H-2.
Interest Payment Date
means (a) with respect to any ABR Loan (other than a Swingline Loan), the last day of each March, June, September and December and the Maturity Date, (b) with respect to any Eurocurrency Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest Period of more than three months duration, each day prior to the last day of such Interest Period that occurs at intervals of three
months duration after the first day of such Interest Period and the Maturity Date and (c) with respect to any Swingline Loan, the day that such Loan is required to be repaid and the Maturity Date.
Interest Period means with respect to any Eurocurrency Borrowing, the period commencing on the date of such Borrowing and
ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as the Borrower may elect; provided, that (i) if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless, in the case of a Eurocurrency Borrowing only, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period pertaining to a Eurocurrency Borrowing that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar
month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be
the effective date of the most recent conversion or continuation of such Borrowing.
Interpolated Rate means, at any
time, the rate per annum determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBOR Screen
Rate for the longest period (for which the LIBOR Screen Rate is available for the applicable currency) that is shorter than the Impacted Interest Period and (b) the LIBOR Screen Rate for the shortest period (for which the LIBOR Screen Rate is
available for the applicable currency) that exceeds the Impacted Interest Period, in each case, at such time.
IRS
means the United States Internal Revenue Service.
Issuing Bank means the Lender designated by the Borrower as the
Issuing Bank hereunder that has agreed to such designation (and is reasonably acceptable to the Administrative Agent), in its capacity as the issuer of Letters of Credit hereunder, and its successors in such capacity as provided in
Section 2.06(i). The Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case the term Issuing Bank shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.
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Japanese Yen means the lawful currency of Japan.
KLA-Tencor Acquisition means the acquisition by the Borrower, through the Merger Subs, of all of the Equity Interests in
the Target pursuant to the KLA-Tencor Acquisition Agreement.
KLA-Tencor Acquisition Agreement means the Agreement and
Plan of Merger and Reorganization, dated as of October 20, 2015, among the Target, the Borrower and the Merger Subs.
KLA-Tencor Acquisition Closing Date the date of the consummation of the KLA-Tencor Acquisition.
LC Collateral Account has the meaning assigned to such term in Section 2.06(j).
LC Disbursement means a payment made by the Issuing Bank pursuant to a Letter of Credit.
LC Exposure means, at any time, the sum of (a) the aggregate undrawn Dollar Amount of all outstanding Letters of
Credit at such time plus (b) the aggregate Dollar Amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Lender at any time shall be its Applicable Percentage of the
total LC Exposure at such time.
Lender Parent means, with respect to any Lender, any Person as to which such Lender
is, directly or indirectly, a subsidiary.
Lenders means the Persons listed on Schedule 2.01 and any other
Person that shall have become a Lender hereunder pursuant to Section 2.20 or pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the
context otherwise requires, the term Lenders includes the Swingline Lender and the Issuing Bank.
Letter of
Credit means any letter of credit issued pursuant to this Agreement.
Leverage Covenant has the meaning
assigned to such term in Section 6.05(a).
LIBO Rate means, with respect to any Eurocurrency Borrowing
denominated in any Agreed Currency and for any applicable Interest Period, the London interbank offered rate administered by the ICE Benchmark Administration Limited (or any other Person that takes over the administration of such rate) for such
Agreed Currency for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen or, in the event such rate does not appear on either of such Reuters pages, on any successor or substitute page on
such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion (in each case the
LIBOR Screen Rate) at approximately 11:00 a.m., London time, on the Quotation Day for such currency and Interest Period; provided that, if the LIBOR Screen Rate shall be less than zero, such rate shall be deemed to be zero
for purposes of this Agreement; provided, further, that if a LIBOR Screen Rate shall not be available at such time for such Interest Period (the Impacted Interest Period), then the LIBO Rate for such currency and
such Interest Period shall be the Interpolated Rate; provided, that, if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. It is understood and agreed that all of the terms and
conditions of this definition of LIBO Rate shall be subject to Section 2.14.
LIBOR Screen Rate
has the meaning assigned to such term in the definition of LIBO Rate.
Lien means, with respect to any
asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with
respect to such securities.
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Liquidity means, at any time the same is to be determined, the Dollar Amount
of unrestricted and unencumbered cash and Eligible Investments maintained by the Borrower and its Subsidiaries at such time.
Loan Documents means this Agreement, any promissory notes issued pursuant to Section 2.10(e), any Letter of
Credit applications, the Subsidiary Guaranty, and all other agreements, instruments, documents and certificates identified in Section 4.01 executed and delivered to, or in favor of, the Administrative Agent or any Lenders and including
all other pledges, powers of attorney, consents, assignments, contracts, notices, letter of credit agreements and all other written matter whether heretofore, now or hereafter executed by or on behalf of any Loan Party, or any employee of any Loan
Party, and delivered to the Administrative Agent or any Lender in connection with this Agreement or the transactions contemplated hereby. Any reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices,
exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to this Agreement or such Loan Document as the same may be in effect at any and all times such reference becomes operative.
Loan Parties means, collectively, the Borrower and the Subsidiary Guarantors.
Loans means the loans made by the Lenders to the Borrower pursuant to this Agreement.
Local Time means (i) New York City time in the case of a Loan, Borrowing or LC Disbursement denominated in Dollars and
(ii) local time in the case of a Loan, Borrowing or LC Disbursement denominated in a Foreign Currency (it being understood that such local time shall mean London, England time unless otherwise notified by the Administrative Agent).
Material Adverse Effect means a material adverse effect on (a) the business, assets, operations or condition
(financial or otherwise) of the Borrower and the Subsidiaries taken as a whole, (b) the ability of the Borrower to perform any of its obligations under this Agreement or (c) the validity or enforceability of this Agreement or any and all
other Loan Documents or the rights or remedies of the Administrative Agent and the Lenders thereunder.
Material Domestic
Subsidiary means each Material Subsidiary that is a Domestic Subsidiary.
Material Subsidiary means each
Subsidiary that is so designated by the Borrower or which, as of the end of the most recent fiscal quarter of the Borrower, for the period of four consecutive fiscal quarters then ended, for which financial statements have been delivered pursuant to
Section 5.01(a) or (b) (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in
Section 3.04(a)), contributed greater than 5% of the Borrowers consolidated revenues for such period (excluding intercompany sales); provided that, if at any time the aggregate amount of the Borrowers consolidated
revenues attributable to all Subsidiaries that are not Material Subsidiaries exceeds 10% of the Borrowers consolidated revenues for any such period, the Borrower (or, in the event the Borrower has failed to do so within ten days, the
Administrative Agent) shall designate sufficient Subsidiaries as Material Subsidiaries to eliminate such excess, and such designated Subsidiaries shall for all purposes of this Agreement constitute Material Subsidiaries.
Material Indebtedness means Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or
more Swap Agreements, of any one or more of the Borrower and its Subsidiaries in an aggregate principal amount exceeding $150,000,000. For purposes of determining Material Indebtedness, the principal amount of the obligations of the
Borrower or any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to pay if such Swap Agreement were
terminated at such time.
Maturity Date means November 10, 2020.
Maximum Rate has the meaning assigned to such term in Section 9.15.
Merger Subs means Topeka Merger Sub 1, Inc. and Topeka Merger Sub 2, Inc.
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Moodys means Moodys Investors Service, Inc.
Multiemployer Plan means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
Non-Consenting Lender has the meaning assigned to such term in Section 9.02(d).
Novellus Acquisition means the acquisition by the Borrower of Novellus Systems, Inc., a California corporation, pursuant to
that certain Agreement and Plan of Merger, dated as of December 14, 2011, among the Borrower, as the parent, BLMS Inc., a California corporation and wholly owned subsidiary of the Borrower, as merger sub, and Novellus Systems, Inc.
Novellus Convertible Notes means the 2.65% Senior Convertible Notes due 2041 issued by Novellus Systems, Inc., a Subsidiary
of the Borrower, pursuant to the First Supplemental Indenture between Novellus Systems, Inc. and The Bank of New York Mellon Trust Company, N.A., as Trustee, dated as of June 4, 2012, which senior convertible notes are Guaranteed by the
Borrower.
Obligations means all unpaid principal of and accrued and unpaid interest on the Loans, all LC Exposure, all
accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations and indebtedness (including interest and fees accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding), obligations and liabilities of any of the Borrower and its Subsidiaries to any of the Lenders, the Administrative Agent, the Issuing Bank or any indemnified party, individually or
collectively, existing on the Effective Date or arising thereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise, arising or incurred under this Agreement or any of the other Loan Documents or to the Lenders or any of their Affiliates under any Swap Agreement or any Banking Services Agreement or in respect of any of the Loans made or reimbursement or
other obligations incurred or any of the Letters of Credit or other instruments at any time evidencing any thereof.
OFAC means the Office of Foreign Assets Control of the U.S. Department of the Treasury.
Off-Balance Sheet Liability of a Person means (a) any repurchase obligation or liability of such Person with respect
to accounts or notes receivable sold by such Person, (b) any indebtedness, liability or obligation under any so-called synthetic lease transaction entered into by such Person, or (c) any indebtedness, liability or
obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheet of such Person (other than operating leases).
Other Connection Taxes means, with respect to any Recipient, Taxes imposed as a result of a present or former connection
between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a
security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
Other Taxes means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that
arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that
are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19).
Overnight Foreign Currency Rate means, for any amount payable in a Foreign Currency, the rate of interest per annum as
determined by the Administrative Agent at which overnight or weekend deposits in the relevant currency (or if such amount due remains unpaid for more than three Business Days, then for such other period of time as the Administrative Agent may elect)
for delivery in immediately available and freely transferable funds would be offered by the Administrative Agent to major banks in the interbank market upon request of such major banks for the relevant currency as determined above and in an amount
comparable to the unpaid principal amount of the related Credit Event, plus any taxes, levies, imposts, duties, deductions, charges or withholdings imposed upon, or charged to, the Administrative Agent by any relevant correspondent bank in respect
of such amount in such relevant currency.
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Participant has the meaning assigned to such term in
Section 9.04(c).
Participant Register has the meaning assigned to such term in
Section 9.04(c).
Participating Member State means any member state of the European Union that adopts or
has adopted the euro as its lawful currency in accordance with legislation of the European Union relating to economic and monetary union.
Patriot Act means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
PBGC means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing
similar functions.
Permitted Encumbrances means:
(a) Liens imposed by law for Taxes that are not yet due or are being contested in compliance with Section 5.04;
(b) carriers, warehousemens, mechanics, materialmens, repairmens and other like Liens imposed by law, arising in
the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in compliance with workers compensation, unemployment insurance and
other social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;
(e) judgment Liens in respect of judgments that do not constitute an Event of Default under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;
provided that the term Permitted Encumbrances shall not include any Lien securing Indebtedness.
Person means any natural person, corporation, limited liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.
Plan means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an employer as defined in Section 3(5) of ERISA.
Pounds
Sterling means the lawful currency of the United Kingdom.
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Prime Rate means the rate of interest per annum publicly announced from time
to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.
Quotation Day means, with respect to any Eurocurrency Borrowing for any Interest Period, (i) if the currency is Pounds
Sterling, the first day of such Interest Period, (ii) if the currency is euro, the day that is two TARGET2 Days before the first day of such Interest Period, and (iii) for any other currency, two Business Days prior to the commencement of
such Interest period (unless, in each case, market practice differs in the relevant market where the LIBO Rate for such currency is to be determined, in which case the Quotation Day will be determined by the Administrative Agent in accordance with
market practice in such market (and if quotations would normally be given on more than one day, then the Quotation Day will be the last of those days)).
Recipient means (a) the Administrative Agent, (b) any Lender and (c) the Issuing Bank, as applicable.
Reference Bank Rate means the arithmetic mean of the rates (rounded upwards to four decimal places) supplied to the
Administrative Agent at its request by the Reference Banks (as the case may be) as of the applicable time on the Quotation Day for Loans in the applicable currency and the applicable Interest Period as the rate at which the relevant Reference Bank
could borrow funds in the London (or other applicable) interbank market in the relevant currency and for the relevant period, were it to do so by asking for and then accepting interbank offers in reasonable market size in that currency and for that
period.
Reference Banks means the principal London (or other applicable) offices of JPMorgan Chase Bank, N.A. and such
other banks as may be appointed by the Administrative Agent in consultation with the Borrower and as agreed to by such bank.
Register has the meaning assigned to such term in Section 9.04(b).
Related Parties means, with respect to any specified Person, such Persons Affiliates and the respective directors,
officers, employees, agents, advisors and representatives of such Person and such Persons Affiliates.
Required
Lenders means, at any time, Lenders having Revolving Credit Exposures and unused Commitments representing more than 50% of the sum of the total Revolving Credit Exposures and unused Commitments at such time.
Responsible Officer means a Financial Officer or any of the chief executive officer, president, any executive vice
president, any senior vice president, chief operating officer or chief legal officer of the Borrower.
Revolving Credit
Exposure means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lenders Revolving Loans and its LC Exposure and Swingline Exposure at such time.
Revolving Loan means a Loan made pursuant to Section 2.01.
S&P means Standard & Poors Ratings Services, a Standard & Poors Financial Services LLC
business.
Sale and Leaseback Transaction means any sale or other transfer of any property or asset by any Person with
the intent to lease such property or asset as lessee.
Sanctioned Country means, at any time, a country or territory
which is the subject or target of any Sanctions.
Sanctioned Person means, at any time, (a) any Person listed in
any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union or any EU member state, (b) any Person operating, organized or resident in a Sanctioned
Country or (c) any Person controlled by any such Person.
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Sanctions means economic or financial sanctions or trade embargoes imposed,
administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC or the U.S. Department of State or (b) the United Nations Security Council, the European Union or Her Majestys Treasury of
the United Kingdom.
SEC means the United States Securities and Exchange Commission.
Securities Act means the United States Securities Act of 1933.
Specified Ancillary Obligations means all obligations and liabilities (including interest and fees accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) of any of the Subsidiaries, existing on the Effective Date or arising thereafter, direct or indirect,
joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or otherwise, to the Lenders or any of their Affiliates under any Swap Agreement or any Banking
Services Agreement.
Statutory Reserve Rate means a fraction (expressed as a decimal), the numerator of which is the
number one and the denominator of which is the number one minus the aggregate of the maximum reserve, liquid asset, fees or similar requirements (including any marginal, special, emergency or supplemental reserves or other requirements) established
by any central bank, monetary authority, the Board, the Financial Conduct Authority, the Prudential Regulation Authority, the European Central Bank or other Governmental Authority for any category of deposits or liabilities customarily used to fund
loans in the applicable currency, expressed in the case of each such requirement as a decimal. Such reserve, liquid asset, fees or similar requirements shall include those imposed pursuant to Regulation D of the Board. Eurocurrency Loans shall be
deemed to be subject to such reserve, liquid asset, fee or similar requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under any applicable law, rule or regulation,
including Regulation D of the Board. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve, liquid asset or similar requirement.
Subordinated Indebtedness means any Indebtedness of the Borrower or any Subsidiary the payment of which is subordinated to
payment of the obligations under the Loan Documents.
subsidiary means, with respect to any Person (the
parent) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parents consolidated financial statements
if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, Controlled or held, or (b) that is, as of
such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
Subsidiary means any subsidiary of the Borrower.
Subsidiary Guarantor means each Material Domestic Subsidiary that is a party to the Subsidiary Guaranty. The Subsidiary
Guarantors on the Effective Date are identified as such in Schedule 3.01 hereto.
Subsidiary Guaranty means that
certain Guaranty dated as of the Effective Date in the form of Exhibit F (including any and all supplements thereto) and executed by each Subsidiary Guarantor, as amended, restated, supplemented or otherwise modified from time to time.
Swap Agreement means any agreement with respect to any swap, forward, future or derivative transaction or option or similar
agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the
Borrower or the Subsidiaries shall be a Swap Agreement.
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Swingline Exposure means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall be its Applicable Percentage of the total Swingline Exposure at such time.
Swingline Lender means JPMorgan Chase Bank, N.A., in its capacity as lender of Swingline Loans hereunder.
Swingline Loan means a Loan made pursuant to Section 2.05.
Syndication Agent means each of Goldman Sachs Bank USA, Barclays Bank PLC and Citibank, N.A., in its capacity as
syndication agent for the credit facility evidenced by this Agreement.
Target means KLA-Tencor Corporation.
TARGET2 means the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET2) payment system (or, if
such payment system ceases to be operative, such other payment system (if any) reasonably determined by the Administrative Agent to be a suitable replacement) for the settlement of payments in euro.
TARGET2 Day means a day that TARGET2 is open for the settlement of payments in euro.
Taxes means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding),
assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Transactions means the execution, delivery and performance by the Loan Parties of this Agreement and the other Loan
Documents, the borrowing of Loans and other credit extensions, the use of the proceeds thereof and the issuance of Letters of Credit hereunder.
Type, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans
comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
U.S.
Person means a United States person within the meaning of Section 7701(a)(30) of the Code.
U.S. Tax Compliance Certificate has the meaning assigned to such term in Section 2.17(f)(ii)(B)(3).
Withdrawal Liability means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans
and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a Revolving Loan) or by Type (e.g., a Eurocurrency Loan) or by Class and Type (e.g., a
Eurocurrency Revolving Loan). Borrowings also may be classified and referred to by Class (e.g., a Revolving Borrowing) or by Type (e.g., a Eurocurrency Borrowing) or by Class and Type (e.g., a
Eurocurrency Revolving Borrowing).
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words include, includes and
including shall be deemed to be followed by the phrase without limitation. The word will shall be construed to have the same meaning and effect as the word shall. The word law shall be
construed as referring to all statutes, rules, regulations, codes and other laws (including official rulings and interpretations thereunder having the force of law or with which
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affected Persons customarily comply), and all judgments, orders and decrees, of all Governmental Authorities. Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented or otherwise modified (subject to any restrictions on such
amendments, restatements, supplements or modifications set forth herein), (b) any definition of or reference to any statute, rule or regulation shall be construed as referring thereto as from time to time amended, supplemented or otherwise
modified (including by succession of comparable successor laws), (c) any reference herein to any Person shall be construed to include such Persons successors and assigns (subject to any restrictions on assignment set forth herein) and, in
the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof, (d) the words herein, hereof and hereunder, and words of similar import,
shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (e) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, this Agreement and (f) the words asset and property shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP; Pro Forma Calculations. (a) Except
as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Borrower notifies the Administrative Agent that the
Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding any other provision
contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made (i) without giving effect to any election under Accounting Standards
Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary at fair value, as
defined therein and (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting
Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof.
(b) Except as otherwise expressly provided herein, all pro forma computations required to be made hereunder giving effect to any acquisition
or disposition for consideration in excess of $50,000,000, or issuance, incurrence or assumption of Indebtedness, or other transaction shall in each case be calculated giving pro forma effect thereto (and, in the case of any pro forma computation
made hereunder to determine whether such acquisition or disposition, or issuance, incurrence or assumption of Indebtedness, or other transaction is permitted to be consummated hereunder, to any other such transaction consummated since the first day
of the period covered by any component of such pro forma computation and on or prior to the date of such computation) as if such transaction had occurred on the first day of the period of four consecutive fiscal quarters ending with the most recent
fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, ending with the last fiscal quarter included in the
financial statements referred to in Section 3.04(a)), and, to the extent applicable, to the historical earnings and cash flows associated with the assets acquired or disposed of (but without giving effect to any synergies or cost
savings) and any related incurrence or reduction of Indebtedness, all in accordance with Article 11 of Regulation S-X under the Securities Act. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest
on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Swap Agreement applicable to such Indebtedness).
SECTION 1.05. Status of Obligations. In the event that the Borrower or any other Loan Party shall at any time issue or have
outstanding any Subordinated Indebtedness, the Borrower shall take or cause such other Loan Party to take all such actions as shall be necessary to cause the Obligations to constitute senior indebtedness (however denominated) in respect of such
Subordinated Indebtedness and to enable the Administrative Agent and
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the Lenders to have and exercise any payment blockage or other remedies available or potentially available to holders of senior indebtedness under the terms of such Subordinated Indebtedness.
Without limiting the foregoing, the Obligations are hereby designated as senior indebtedness and as designated senior indebtedness and words of similar import under and in respect of any indenture or other agreement or
instrument under which such Subordinated Indebtedness is outstanding and are further given all such other designations as shall be required under the terms of any such Subordinated Indebtedness in order that the Lenders may have and exercise any
payment blockage or other remedies available or potentially available to holders of senior indebtedness under the terms of such Subordinated Indebtedness.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein, each Lender (severally and not jointly)
agrees to make Revolving Loans to the Borrower in Agreed Currencies from time to time during the Availability Period in an aggregate principal amount that will not result in (a) subject to Sections 2.04 and 2.11(b), the Dollar
Amount of such Lenders Revolving Credit Exposure exceeding such Lenders Commitment or (b) subject to Sections 2.04 and 2.11(b), the sum of the Dollar Amount of the total Revolving Credit Exposures exceeding the
Aggregate Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan (other than a Swingline Loan) shall be made as part of a
Borrowing consisting of Revolving Loans made by the Lenders ratably in accordance with their respective Commitments. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lenders failure to make Loans as required. Any Swingline Loan shall be made in accordance with the procedures set forth
in Section 2.05.
(b) Subject to Section 2.14, each Revolving Borrowing shall be comprised entirely of ABR Loans
or Eurocurrency Loans as the Borrower may request in accordance herewith; provided that each ABR Loan shall only be made in Dollars. Each Swingline Loan shall be an ABR Loan. Each Lender at its option may make any Loan by causing any domestic
or foreign branch or Affiliate of such Lender to make such Loan (and in the case of an Affiliate, the provisions of Sections 2.14, 2.15, 2.16 and 2.17 shall apply to such Affiliate to the same extent as to such Lender);
provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurocurrency Revolving Borrowing, such Borrowing shall be in an aggregate amount that
is an integral multiple of $1,000,000 (or, if such Borrowing is denominated in (i) Japanese Yen, JPY100,000,000 or (ii) a Foreign Currency other than Japanese Yen, 1,000,000 units of such currency) and not less than $5,000,000 (or, if such
Borrowing is denominated in (i) Japanese Yen, JPY500,000,000 or (ii) a Foreign Currency other than Japanese Yen, 5,000,000 units of such currency). At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000; provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Aggregate Commitment or that is
required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(e). Each Swingline Loan shall be in an amount that is an integral multiple of $500,000 and not less than $1,000,000. Borrowings of more than one
Type and Class may be outstanding at the same time; provided that there shall not at any time be more than a total of seven Eurocurrency Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.
SECTION 2.03. Requests for
Revolving Borrowings. To request a Revolving Borrowing, the Borrower shall notify the Administrative Agent of such request (a) by irrevocable written notice (via a written Borrowing Request signed by the Borrower, promptly followed by
telephonic confirmation of such request) in the case of a
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Eurocurrency Borrowing, not later than 12:00 noon, Local Time, three Business Days (in the case of a Eurocurrency Borrowing denominated in Dollars) or by irrevocable written notice (via a written
Borrowing Request signed by the Borrower) not later than 11:00 a.m., Local Time, four Business Days (in the case of a Eurocurrency Borrowing denominated in a Foreign Currency), in each case before the date of the proposed Borrowing or (b) by
telephone in the case of an ABR Borrowing, not later than 12:00 noon, New York City time, one Business Day before the date of the proposed Borrowing; provided that any such notice of an ABR Revolving Borrowing to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.06(e) may be given not later than 10:00 a.m., New York City time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request signed by the Borrower. Each such telephonic and written Borrowing Request shall specify the following information in compliance with
Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
(iv) in the case of a Eurocurrency Borrowing, the Agreed Currency and initial Interest Period to be applicable thereto, which shall be a
period contemplated by the definition of the term Interest Period; and
(v) the location and number of the
Borrowers account to which funds are to be disbursed, which shall comply with the requirements of Section 2.07.
If no election as to
the Type of Revolving Borrowing is specified, then, in the case of a Borrowing denominated in Dollars, the requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurocurrency
Revolving Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one months duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each
Lender of the details thereof and of the amount of such Lenders Loan to be made as part of the requested Borrowing.
SECTION 2.04. Determination of Dollar Amounts. The Administrative Agent will determine the Dollar Amount of:
(a) any Eurocurrency Borrowing as of the date two Business Days prior to the date of such Borrowing or, if applicable, the date of
conversion/continuation of any Borrowing as a Eurocurrency Borrowing,
(b) the LC Exposure as of the date of each request for the
issuance, amendment, renewal or extension of any Letter of Credit, and
(c) all outstanding Credit Events on and as of the last Business
Day of each calendar quarter and, during the continuation of an Event of Default, on any other Business Day elected by the Administrative Agent in its discretion or upon instruction by the Required Lenders.
Each day upon or as of which the Administrative Agent determines Dollar Amounts as described in the preceding clauses (a), (b) and
(c) is herein described as a Computation Date with respect to each Credit Event for which a Dollar Amount is determined on or as of such day.
SECTION 2.05. Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender may in its sole
discretion make Swingline Loans in Dollars to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding
Swingline Loans exceeding $15,000,000 or (ii) the Dollar Amount of the total Revolving Credit Exposures exceeding the Aggregate Commitment; provided that the Swingline Lender shall not be
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required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay
and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by
telephone (confirmed by telecopy), not later than 1:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the
requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the
general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.06(e), by remittance to the Issuing Bank) by 3:00
p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the
aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lenders Applicable Percentage of such
Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lenders Applicable Percentage of
such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its
obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.07 with respect to Loans made by such Lender (and Section 2.07 shall apply, mutatis mutandis,
to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any
Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower
(or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by
the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such
payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline
Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
SECTION 2.06. Letters of
Credit. (a) General. Subject to the terms and conditions set forth herein, the Borrower may request the issuance of Letters of Credit denominated in Agreed Currencies as the applicant thereof for the support of its or its
Subsidiaries obligations, in a form reasonably acceptable to the Administrative Agent and the Issuing Bank, at any time and from time to time during the Availability Period. Any letter of credit under which the Target is the account party
which is outstanding as of the KLA-Tencor Acquisition Closing Date may be deemed to be a Letter of Credit issued pursuant to this Section 2.06(a); provided that the issuer of such letter of credit is an Issuing Bank and such
Issuing Bank and the Borrower agree that such letter of credit shall be deemed to be a Letter of Credit hereunder and the Borrower shall have provided written notice thereof to the Administrative Agent. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the Issuing Bank relating to any Letter of Credit,
the terms and conditions of this Agreement shall control. The Borrower unconditionally and irrevocably agrees that, in connection with any Letter of Credit issued for the support of any Subsidiarys obligations as provided in the first sentence
of this paragraph, the Borrower will be fully responsible for the reimbursement of LC Disbursements in accordance with the terms hereof, the payment of interest thereon and the payment of fees due under Section 2.12(b) to the same extent
as if it
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were the sole account party in respect of such Letter of Credit (the Borrower hereby irrevocably waiving any defenses that might otherwise be available to it as a guarantor or surety of the
obligations of such a Subsidiary that is an account party in respect of any such Letter of Credit).
(b) Notice of Issuance, Amendment,
Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal or extension) a notice requesting the
issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is
to expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the Agreed Currency applicable thereto, the name and address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. If requested by the Issuing Bank, the Borrower also shall submit a letter of credit application on the Issuing Banks standard form in connection with any request for a Letter
of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension (i) subject to Sections 2.04 and 2.11(b), the Dollar Amount of the LC Exposure shall not exceed $35,000,000 and (ii) subject to Sections 2.04 and 2.11(b), the sum of the
Dollar Amount of the total Revolving Credit Exposures shall not exceed the Aggregate Commitment.
(c) Expiration Date. Each Letter
of Credit shall expire (or be subject to termination by notice from the Issuing Bank to the beneficiary thereof) at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (ii) the date that is five Business Days prior to the Maturity Date, provided that any Letter of Credit with a one-year term may
provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (ii) above).
(d) Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and
without any further action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from the Issuing Bank, a participation in such Letter of Credit equal to such Lenders
Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, such Lenders Applicable Percentage of each LC Disbursement made by the Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Borrower for any reason. Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall
make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent in Dollars the Dollar Amount equal to such LC Disbursement, calculated as of the date the Issuing Bank
made such LC Disbursement (or if the Issuing Bank shall so elect in its sole discretion by notice to the Borrower, in such other Agreed Currency which was paid by the Issuing Bank pursuant to such LC Disbursement in an amount equal to such LC
Disbursement) not later than 12:00 noon, Local Time, on the date that such LC Disbursement is made, if the Borrower shall have received notice of such LC Disbursement prior to 10:00 a.m., Local Time, on such date, or, if such notice has not been
received by the Borrower prior to such time on such date, then not later than 12:00 noon, Local Time, on the Business Day immediately following the day that the Borrower receives such notice, if such notice is not received prior to such time on the
day of receipt; provided that, if such LC Disbursement is not less than the Dollar Amount of $1,000,000, the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 or
2.05 that such payment be financed with (i) to the extent such LC Disbursement was made in Dollars, an ABR Revolving Borrowing, Eurocurrency Revolving Borrowing or Swingline Loan in Dollars in an amount equal to such LC Disbursement or
(ii) to the extent that such LC
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Disbursement was made in a Foreign Currency, a Eurocurrency Revolving Borrowing in such Foreign Currency in an amount equal to such LC Disbursement and, in each case, to the extent so financed,
the Borrowers obligation to make such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing, Eurocurrency Revolving Borrowing or Swingline Loan, as applicable. If the Borrower fails to make such payment when due,
the Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Lenders Applicable Percentage thereof. Promptly following receipt of such notice, each
Lender shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the Borrower, in the same manner as provided in Section 2.07 with respect to Loans made by such Lender (and Section 2.07
shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank the amounts so received by it from the Lenders. Promptly following receipt by the Administrative
Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the Issuing Bank or, to the extent that Lenders have made payments pursuant to this paragraph to reimburse the Issuing Bank,
then to such Lenders and the Issuing Bank as their interests may appear. Any payment made by a Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan
as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement. If the Borrowers reimbursement of, or obligation to reimburse, any amounts in any Foreign Currency would
subject the Administrative Agent, the Issuing Bank or any Lender to any stamp duty, ad valorem charge or similar tax that would not be payable if such reimbursement were made or required to be made in Dollars, the Borrower shall, at its option,
either (x) pay the amount of any such tax requested by the Administrative Agent, the Issuing Bank or the relevant Lender or (y) reimburse each LC Disbursement made in such Foreign Currency in Dollars, in an amount equal to the Equivalent
Amount, calculated using the applicable Exchange Rates, on the date such LC Disbursement is made, of such LC Disbursement.
(f)
Obligations Absolute. The Borrowers obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with
the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrowers obligations hereunder. Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any of their Related Parties, shall
have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any
error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing Bank; provided that the foregoing shall not be construed to excuse the Issuing Bank from liability to the Borrower to the
extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the
Issuing Banks failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful
misconduct on the part of the Issuing Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either accept and make
payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following its receipt thereof,
examine all documents purporting to represent a demand for payment under a Letter of Credit. The Issuing Bank shall promptly notify the Administrative Agent and the Borrower by telephone (confirmed by telecopy) of such
24
demand for payment and whether the Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse the Issuing Bank and the Lenders with respect to any such LC Disbursement.
(h) Interim
Interest. If the Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement, at the rate per annum then applicable to ABR Revolving Loans (or in the case such LC Disbursement is denominated in a
Foreign Currency, at the Overnight Foreign Currency Rate for such Agreed Currency plus the then effective Applicable Rate with respect to Eurocurrency Revolving Loans); provided that, if the Borrower fails to reimburse such LC
Disbursement when due pursuant to paragraph (e) of this Section, then Section 2.13(c) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the Issuing Bank, except that interest accrued on and
after the date of payment by any Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be for the account of such Lender to the extent of such payment.
(i) Replacement of Issuing Bank. The Issuing Bank may be replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement of the Issuing Bank. At the time any such replacement shall become effective, the Borrower
shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12(b). From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term Issuing Bank shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and
obligations of an Issuing Bank under this Agreement with respect to Letters of Credit then outstanding and issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives
notice from the Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral pursuant
to this paragraph, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders (the LC Collateral Account), an amount in cash equal to 105% of
the Dollar Amount of the LC Exposure as of such date plus any accrued and unpaid interest thereon; provided that (i) the portions of such amount attributable to undrawn Foreign Currency Letters of Credit or LC Disbursements in a Foreign
Currency that the Borrower is not late in reimbursing shall be deposited in the applicable Foreign Currencies in the actual amounts of such undrawn Letters of Credit and LC Disbursements and (ii) the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower described in clause
(h) or (i) of Article VII. For the purposes of this paragraph, the Foreign Currency LC Exposure shall be calculated using the applicable Exchange Rate on the date notice demanding cash collateralization is delivered to
the Borrower. The Borrower also shall deposit cash collateral pursuant to this paragraph as and to the extent required by Section 2.11(b). Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of
the Obligations. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits, which investments shall be made
at the option and sole discretion of the Administrative Agent and at the Borrowers risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such
account shall be applied by the Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders with LC Exposure representing greater than 50% of the total LC Exposure), be applied to satisfy other
Obligations. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three
Business Days after all Events of Default
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have been cured or waived. If the Borrower is required to provide an amount of cash collateral hereunder under Section 2.11(b) or Section 2.22(c), such amount (to the
extent not applied as aforesaid) shall be returned to the Borrower as requested by the Borrower (a) with respect to cash collateral required under Section 2.11(b), so long as after giving effect to such return, all Revolving Credit
Exposures (as calculated under such Section) would be less than or equal to the Aggregate Commitment and (b) with respect to cash collateral required under Section 2.22(c), the LC Exposure of the applicable Defaulting Lender has
been fully reallocated or eliminated.
SECTION 2.07. Funding of Borrowings. (a) Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of immediately available funds (i) in the case of Loans denominated in Dollars, by 12:00 noon, New York City time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders and (ii) in the case of each Loan denominated in a Foreign Currency, by 12:00 noon, Local Time, in the city of the Administrative Agents Eurocurrency Payment Office for such
currency and at such Eurocurrency Payment Office for such currency; provided that Swingline Loans shall be made as provided in Section 2.05. The Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to (x) an account of the Borrower maintained with the Administrative Agent in New York City or Chicago and designated by the Borrower in the applicable Borrowing Request, in the case of Loans
denominated in Dollars and (y) an account of the Borrower in the relevant jurisdiction and designated by the Borrower in the applicable Borrowing Request, in the case of Loans denominated in a Foreign Currency; provided that ABR
Revolving Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.06(e) shall be remitted by the Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lenders share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender
and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date
of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation
(including without limitation the Overnight Foreign Currency Rate in the case of Loans denominated in a Foreign Currency) or (ii) in the case of the Borrower, the interest rate applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lenders Loan included in such Borrowing.
SECTION 2.08.
Interest Elections. (a) Each Revolving Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurocurrency Revolving Borrowing, shall have an initial Interest Period as specified in
such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurocurrency Revolving Borrowing, may elect Interest Periods therefor, all as provided in
this Section. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the
Loans comprising each such portion shall be considered a separate Borrowing. This Section shall not apply to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election (by telephone or
irrevocable written notice in the case of a Borrowing denominated in Dollars or by irrevocable written notice (via an Interest Election Request signed by the Borrower) in the case of a Borrowing denominated in a Foreign Currency) by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request signed by the Borrower. Notwithstanding any contrary provision herein, this Section
shall not be construed to permit the Borrower to (i) change the currency of any Borrowing, (ii) elect an Interest Period for Eurocurrency Loans that does not comply with Section 2.02(d) or (iii) convert any Borrowing to a
Borrowing of a Type not available under such Borrowing.
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(c) Each telephonic and written Interest Election Request shall specify the following information
in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and, if different options
are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election Request, which
shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period and Agreed Currency to be applicable thereto after giving
effect to such election, which Interest Period shall be a period contemplated by the definition of the term Interest Period.
If any such
Interest Election Request requests a Eurocurrency Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one months duration.
(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and
of such Lenders portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request with
respect to a Eurocurrency Revolving Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period (i) in the case of a Borrowing denominated in
Dollars, such Borrowing shall be converted to an ABR Borrowing and (ii) in the case of a Borrowing denominated in a Foreign Currency in respect of which the Borrower shall have failed to deliver an Interest Election Request prior to the third
Business Day preceding the end of such Interest Period, such Borrowing shall automatically continue as a Eurocurrency Borrowing in the same Agreed Currency with an Interest Period of one month unless such Eurocurrency Borrowing is or was repaid in
accordance with Section 2.11. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so
long as an Event of Default is continuing (i) no outstanding Revolving Borrowing denominated in Dollars may be converted to or continued as a Eurocurrency Borrowing, (ii) unless repaid, each Eurocurrency Revolving Borrowing denominated in
Dollars shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto and (iii) unless repaid, each Eurocurrency Revolving Borrowing denominated in a Foreign Currency shall automatically be continued as a
Eurocurrency Borrowing with an Interest Period of one month.
SECTION 2.09. Termination and Reduction of Commitments.
(a) Unless previously terminated, the Commitments shall terminate on the Maturity Date.
(b) The Borrower may at any time terminate,
or from time to time reduce, the Commitments; provided that (i) each reduction of the Commitments shall be in an amount that is an integral multiple of $1,000,000 and not less than $10,000,000 and (ii) the Borrower shall not
terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.11, the Dollar Amount of the sum of the Revolving Credit Exposures would exceed the Aggregate Commitment.
(c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Commitments under paragraph
(b) of this Section at least three Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any
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notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided that a
notice of termination of the Commitments delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities or other transactions specified therein, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Commitments shall be permanent. Each reduction of the Commitments shall be made
ratably among the Lenders in accordance with their respective Commitments (or as between Lenders which are Affiliates of each other, as they may determine and notify to the Administrative Agent).
SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each Lender the then unpaid principal amount of each Revolving Loan on the Maturity Date in the currency of such Loan and (ii) to the Swingline Lender the then unpaid principal amount of each Swingline
Loan on the earlier of the Maturity Date and the first date after such Swingline Loan is made that is the 15th or last day of a calendar month and is at least two Business Days after such Swingline Loan is made; provided that on each date
that a Revolving Borrowing is made, the Borrower shall repay all Swingline Loans then outstanding.
(b) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from
time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan
made hereunder, the Class, Agreed Currency and Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and
(iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lenders share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section shall be prima
facie evidence of the existence and amounts of the obligations recorded therein absent manifest error; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any
manner affect the Obligations.
(e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the
Borrower shall prepare, execute and deliver a promissory note to such Lender or its registered assigns in the form attached hereto as Exhibit I. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to the payee named therein or its registered assigns.
(f) The accounts and records maintained by the Administrative Agent referred to in clause (c) shall be treated as part of the
Register. In the event of any inconsistency between the Register and any Lenders records, the records as in the Register shall govern.
SECTION 2.11. Prepayment of Loans.
(a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice
in accordance with the provisions of this Section 2.11(a). The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by written notice (promptly followed by telephonic
confirmation of such request) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Revolving Borrowing, not later than 12:00 noon, Local Time, three Business Days (in the case of a Eurocurrency Borrowing denominated in
Dollars) or four Business Days (in the case of a Eurocurrency Borrowing denominated in a Foreign Currency), in each case before the date of prepayment, (ii) in the case of prepayment of an ABR Revolving Borrowing, not later than 12:00 noon, New
York City time, one (1) Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 1:00 p.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid; provided that, if a notice of prepayment is given in connection with a conditional notice of termination of the Commitments as
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contemplated by Section 2.09, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.09. Promptly following
receipt of any such notice relating to a Revolving Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted in the case of
an advance of a Revolving Borrowing of the same Type as provided in Section 2.02. Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
(i) accrued interest to the extent required by Section 2.13 and (ii) break funding payments pursuant to Section 2.16.
(b) If at any time, (i) other than as a result of fluctuations in currency exchange rates, the sum of the aggregate principal Dollar
Amount of all of the Revolving Credit Exposures (calculated, with respect to those Credit Events denominated in Foreign Currencies, as of the most recent Computation Date with respect to each such Credit Event) exceeds the Aggregate Commitment or
(ii) solely as a result of fluctuations in currency exchange rates, the sum of the aggregate principal Dollar Amount of all of the Revolving Credit Exposures (so calculated) exceeds 105% of the Aggregate Commitment, the Borrower shall in each
case immediately repay Borrowings or cash collateralize LC Exposure in an account with the Administrative Agent pursuant to Section 2.06(j), as applicable, in an aggregate principal amount sufficient to cause the aggregate Dollar Amount
of all Revolving Credit Exposures (so calculated) to be less than or equal to the Aggregate Commitment.
SECTION 2.12. Fees.
(a) The Borrower agrees to pay to the Administrative Agent for the account of each Lender a facility fee, which shall accrue at the Applicable Rate on the daily amount of the Commitment of such Lender (whether used or unused) during the period
from and including the Effective Date to but excluding the date on which such Commitment terminates; provided that, if such Lender continues to have any Revolving Credit Exposure after its Commitment terminates, then such facility fee shall
continue to accrue on the daily amount of such Lenders Revolving Credit Exposure from and including the date on which its Commitment terminates to but excluding the date on which such Lender ceases to have any Revolving Credit Exposure.
Accrued facility fees shall be payable in arrears on the last day of March, June, September and December of each year and on the date on which the Commitments terminate, commencing on the first such date to occur after the date hereof;
provided that any facility fees accruing after the date on which the Commitments terminate shall be payable on demand. All facility fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(b) The Borrower agrees to pay (i) to the Administrative Agent for the
account of each Lender a participation fee with respect to its participations in Letters of Credit, which shall accrue at the same Applicable Rate used to determine the interest rate applicable to Eurocurrency Revolving Loans on the average daily
Dollar Amount of such Lenders LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Effective Date to but excluding the later of the date on which such Lenders
Commitment terminates and the date on which such Lender ceases to have any LC Exposure and (ii) to the Issuing Bank for its own account a fronting fee, which shall accrue at the rate of 0.125% per annum on the average daily Dollar Amount
of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) attributable to Letters of Credit issued by the Issuing Bank during the period from and including the Effective Date to but excluding the later of the
date of termination of the Commitments and the date on which there ceases to be any LC Exposure, as well as the Issuing Banks standard fees and commissions with respect to the issuance, amendment, cancellation, negotiation, transfer,
presentment, renewal or extension of any Letter of Credit or processing of drawings thereunder. Unless otherwise specified above, accrued participation fees and fronting fees shall be payable in arrears on the last day of March, June, September and
December of each year, commencing on the first such date to occur after the Effective Date; provided that all such fees shall be payable on the date on which the Commitments terminate and any such fees accruing after the date on which the
Commitments terminate shall be payable on demand. Any other fees payable to the Issuing Bank pursuant to this paragraph shall be payable within ten days after demand. All participation fees and fronting fees shall be computed on the basis of a year
of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). Participation fees and fronting fees in respect of Letters of Credit denominated in Dollars shall be paid in Dollars, and
participation fees and fronting fees in respect of Letters of Credit denominated in a Foreign Currency shall be paid in such Foreign Currency.
(c) The Borrower agrees to pay to the Administrative Agent, the Arrangers and the Lenders the other applicable fees respectively required to
be paid to them in the amounts and the times as set forth in the Fee Letters.
(d) All fees payable hereunder shall be paid on the dates
due, in Dollars (except as otherwise expressly provided in this Section 2.12) and immediately available funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for distribution, in the case of
facility fees and participation fees, to the Lenders. Fees paid shall not be refundable under any circumstances.
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SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing (including
each Swingline Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurocurrency
Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder is
not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and upon termination of the
Commitments; provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurocurrency
Revolving Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that interest (i) computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and (ii) for Borrowings denominated in Pounds Sterling shall be computed on
the basis of a year of 365 days, and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by
the Administrative Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.14. Alternate Rate of
Interest.
(a) If at the time that the Administrative Agent shall seek to determine the LIBOR Screen Rate on the Quotation Day for any
Interest Period for a Eurocurrency Borrowing, the LIBOR Screen Rate shall not be available for such Interest Period and/or for the applicable currency with respect to such Eurocurrency Borrowing for any reason, and the Administrative Agent shall
reasonably determine that it is not possible to determine the Interpolated Rate (which conclusion shall be conclusive and binding absent manifest error), then the Reference Bank Rate shall be the LIBO Rate for such Interest Period for such
Eurocurrency Borrowing; provided that if the Reference Bank Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement; provided, further, however, that if less than two Reference Banks
shall supply a rate to the Administrative Agent for purposes of determining the LIBO Rate for such Eurocurrency Borrowing, (i) if such Borrowing shall be requested in Dollars, then such Borrowing shall be made as an ABR Borrowing at the
Alternate Base Rate and (ii) if such Borrowing shall be requested in any Foreign Currency, the LIBO Rate shall be equal to the cost to each Lender to fund its pro rata share of such Eurocurrency Borrowing (from whatever source and using
whatever methodologies as such Lender may select in its reasonable discretion, such rate, the COF Rate).
(b) If prior
to the commencement of any Interest Period for a Eurocurrency Borrowing:
(i) the Administrative Agent determines (which determination
shall be conclusive and binding absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable (after giving effect to Section 2.14(a)), for a Loan in the
applicable currency or for the applicable Interest Period; or
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(ii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or
the LIBO Rate, as applicable, for a Loan in the applicable currency or for the applicable Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such
Interest Period; then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that
the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurocurrency Borrowing in the applicable currency or for
the applicable Interest Period, as the case may be, shall be ineffective, (ii) if any Borrowing Request requests a Eurocurrency Borrowing in Dollars, such Borrowing shall be made as an ABR Borrowing and (iii) if any Borrowing Request
requests a Eurocurrency Borrowing in a Foreign Currency, then the LIBO Rate for such Eurocurrency Borrowing shall be the COF Rate; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then the
other Type of Borrowings shall be permitted. The Administrative Agent shall use commercially reasonable efforts to promptly notify the Borrower if and when the circumstances giving rise to the notice described above are no longer in effect.
SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, liquidity or similar requirement (including any compulsory loan
requirement, insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank;
(ii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting
this Agreement or Loans made by such Lender or any Letter of Credit or participation therein; or
(iii) subject any Recipient to any Taxes
(other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit,
commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, continuing,
converting into or maintaining any Loan or of maintaining its obligation to make any such Loan or to increase the cost to such Lender, the Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit or to
reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder, whether of principal, interest or otherwise, then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient,
as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in Law regarding capital or liquidity requirements has or would have the
effect of reducing the rate of return on such Lenders or the Issuing Banks capital or on the capital of such Lenders or the Issuing Banks holding company, if any, as a consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level below that which such Lender or the Issuing Bank or such Lenders or the Issuing Banks holding company could have
achieved but for such Change in Law (taking into consideration such Lenders or the Issuing Banks policies and the policies of such Lenders or the Issuing Banks holding company with respect to capital adequacy and liquidity),
then from time to time the Borrower will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lenders or the Issuing Banks holding
company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the amount or amounts necessary
to compensate such Lender or the Issuing Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error.
The Borrower shall pay such Lender or the Issuing Bank, as the case may be, the amount shown as due on any such certificate within ten days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation pursuant to this Section shall not constitute a
waiver of such Lenders or the Issuing Banks right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or the Issuing Bank pursuant to this Section for any increased costs or
reductions incurred more than 270 days prior to the date that such Lender or the Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lenders or the Issuing
Banks intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include
the period of retroactive effect thereof.
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SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurocurrency Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default or as a result of any prepayment pursuant to Section 2.11), (b) the conversion of
any Eurocurrency Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurocurrency Loan on the date specified in any notice delivered pursuant hereto (regardless
of whether such notice may be revoked under Section 2.11(a) and is revoked in accordance therewith) or (d) the assignment of any Eurocurrency Loan other than on the last day of the Interest Period applicable thereto as a result of a
request by the Borrower pursuant to Section 2.19, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. Such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period
for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for deposits in the relevant
currency of a comparable amount and period from other banks in the eurocurrency market. A certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be
delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within ten days after receipt thereof.
SECTION 2.17. Taxes. (a) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan
Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires the
deduction or withholding of any Tax from any such payment by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant
Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including
such deductions and withholdings applicable to additional sums payable under this Section 2.17) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b) Payment of Other Taxes by the Borrower. The Borrower shall timely pay to the relevant Governmental Authority in accordance with
applicable law, or at the option of the Administrative Agent timely reimburse it for, Other Taxes.
(c) Evidence of Payments. As
soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.17, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(d) Indemnification by the Loan Parties. The Loan Parties shall indemnify each Recipient, within ten days after demand therefor, for
the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or
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asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to
the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e) Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within ten days after demand
therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan
Parties to do so), (ii) any Taxes attributable to such Lenders failure to comply with the provisions of Section 9.04(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to
such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed
or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the
Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative
Agent under this paragraph (e).
(f) Status of Lenders. (i) Any Lender that is entitled to an exemption from or
reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly
completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested
by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine
whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than
such documentation set forth in Section 2.17(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lenders reasonable judgment such completion, execution or submission would subject such Lender to any
material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without
limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person:
(A) any Lender that is a U.S.
Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative
Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative
Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), whichever of the following is applicable:
(1) in the case of a Foreign Lender claiming the benefits
of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S.
Federal withholding Tax pursuant to the interest article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or
reduction of, U.S. Federal withholding Tax pursuant to the business profits or other income article of such tax treaty;
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(2) executed originals of IRS Form W-8ECI;
(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of
the Code, (x) a certificate substantially in the form of Exhibit G-1 to the effect that such Foreign Lender is not a bank within the meaning of Section 881(c)(3)(A) of the Code, a 10 percent shareholder of
the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a controlled foreign corporation described in Section 881(c)(3)(C) of the Code (a U.S. Tax Compliance Certificate) and (y) executed
originals of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(4) to the extent a Foreign Lender is not the beneficial owner,
executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other
certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such
Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative
Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. Federal withholding Tax, duly completed, together with such supplementary documentation as may be
prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject to U.S. Federal withholding Tax imposed by FATCA if
such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent
at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code)
and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has
complied with such Lenders obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), FATCA shall include any amendments made to FATCA after
the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or
inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(g) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a
refund of any Taxes as to which it has been indemnified pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section 2.17), it shall pay to the indemnifying party an amount equal to
such refund (but only to the extent of indemnity payments made under this Section 2.17
34
with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any
penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this
paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax
position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to
such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other
Person.
(h) Survival. Each partys obligations under this Section 2.17 shall survive the resignation or
replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
(i) Defined Terms. For purposes of this Section 2.17, the term Lender includes the Issuing Bank and the
term applicable law includes FATCA.
(j) FATCA. Solely for purposes of determining withholding Taxes imposed under
FATCA, from and after the Amendment No. 1 Effective Date, the Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a grandfathered
obligation within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
SECTION 2.18. Payments Generally; Pro
Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to (i) in the case of payments denominated in Dollars, 1:00 p.m., New York
City time and (ii) in the case of payments denominated in a Foreign Currency, 12:00 noon, Local Time, in the city of the Administrative Agents Eurocurrency Payment Office for such currency, in each case on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made (i) in the same currency in which the applicable Credit Event was made (or where such currency has been converted to euro, in euro) and (ii) to the Administrative Agent at its
offices at 10 South Dearborn Street, Chicago, Illinois 60603 or, in the case of a Credit Event denominated in a Foreign Currency, the Administrative Agents Eurocurrency Payment Office for such currency, except payments to be made directly to
the Issuing Bank or Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent
shall distribute any such payments denominated in the same currency received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. Notwithstanding the foregoing provisions
of this Section, if, after the making of any Credit Event in any Foreign Currency, currency control or exchange regulations are imposed in the country which issues such currency with the result that the type of currency in which the Credit Event was
made (the Original Currency) no longer exists or the Borrower is not able to make payment to the Administrative Agent for the account of the Lenders in such Original Currency, then all payments to be made by the Borrower hereunder
in such currency shall instead be made when due in Dollars in an amount equal to the Dollar Amount (as of the date of repayment) of such payment due, it being the intention of the parties hereto that the Borrower takes all risks of the imposition of
any such currency control or exchange regulations.
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(b) If at any time insufficient funds are received by and available to the Administrative Agent
to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder ratably among the parties entitled thereto in accordance
with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) At the election of the Administrative
Agent, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan
Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrower pursuant to Section 2.03 or a deemed request as provided in this Section or may be deducted from any deposit account
of the Borrower maintained with the Administrative Agent. The Borrower hereby irrevocably authorizes (i) the Administrative Agent to make a Borrowing for the purpose of paying each payment of principal, interest, fees or any other amount due
under the Loan Documents if such amounts are not paid when due and agrees that all such amounts charged shall constitute Loans (including Swingline Loans) and that all such Borrowings shall be deemed to have been requested pursuant to Sections
2.03 or 2.05, as applicable and (ii) the Administrative Agent to charge any deposit account of the Borrower maintained with the Administrative Agent designated by the Borrower for such purpose for each payment of principal, interest
and fees as it becomes due hereunder or any other amount due under the Loan Documents.
(d) If any Lender shall, by exercising any right
of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion
shall purchase (for cash at face value) participations in the Revolving Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders
ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Loans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any
of its Loans or participations in LC Disbursements and Swingline Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim
with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(e) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including without limitation the
Overnight Foreign Currency Rate in the case of Loans denominated in a Foreign Currency).
(f) If any Lender shall fail to make any payment
required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(e) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any
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contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender and for the benefit of the Administrative Agent, the
Swingline Lender or the Issuing Bank to satisfy such Lenders obligations to it under such Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account over which the
Administrative Agent shall have exclusive control as cash collateral for, and application to, any future funding obligations of such Lender under any such Section; in the case of each of clauses (i) and (ii) above, in any
order as determined by the Administrative Agent in its discretion.
SECTION 2.19. Mitigation Obligations; Replacement of
Lenders. (a) If any Lender requests compensation under Section 2.15, or the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.17, then such Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If (i) any Lender requests compensation under Section 2.15,
(ii) the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17 or (iii) any Lender becomes a Defaulting
Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights (other than its existing rights to payments pursuant to Sections 2.15 or 2.17) and obligations under the Loan Documents to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have received the prior written consent of the Administrative Agent (and if a Commitment is being assigned, the Issuing Bank and
the Swingline Lender), which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements and Swingline Loans,
accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and (iii) in
the case of any such assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section 2.17, such assignment will result in a reduction in such compensation or payments.
A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 2.20. Expansion Option. The Borrower may from time to time elect to increase the Commitments or enter into one or more
tranches of term loans (each an Incremental Term Loan), in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not
exceed $250,000,000. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Commitment, or to participate in such Incremental Term Loans, an Increasing
Lender), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an Augmenting Lender; provided that no Ineligible Institution may be an
Augmenting Lender), which agree to increase their existing Commitments, or to participate in such Incremental Term Loans, or provide new Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the
approval of the Borrower and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit C hereto, and (y) in the
case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit D hereto. No consent of any Lender (other than the Lenders participating in the increase or any Incremental Term
Loan) shall be required for any increase in Commitments or Incremental Term Loan pursuant to this Section 2.20. Increases and new Commitments and Incremental Term Loans created pursuant to this Section 2.20 shall become
effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the
Commitments (or in the Commitment of any Lender) or tranche of Incremental Term
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Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase or Incremental Term Loans, (A) the conditions set forth in
paragraphs (a) and (b) of Section 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of
the Borrower and (B) the Borrower shall be in compliance (on a pro forma basis) with the covenants contained in Section 6.05 and (ii) the Administrative Agent shall have received documents and opinions consistent with those
delivered on the Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase (unless such requirements have been waived by the applicable Increasing Lenders and Augmenting
Lenders). On the effective date of any increase in the Commitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately
available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each
Lenders portion of the outstanding Revolving Loans of all the Lenders to equal its Applicable Percentage of such outstanding Revolving Loans, and (ii) except in the case of any Incremental Term Loans, the Borrower shall be deemed to have
repaid and reborrowed all outstanding Revolving Loans as of the date of any increase in the Commitments (with such reborrowing to consist of the Types of Revolving Loans, with related Interest Periods if applicable, specified in a notice delivered
by the Borrower, in accordance with the requirements of Section 2.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the
amount prepaid and, in respect of each Eurocurrency Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.16 if the deemed payment occurs other than on the last day of the related Interest
Periods. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated
substantially the same as (and in any event no more favorably than) the Revolving Loans; provided that (i) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Maturity Date may provide for
material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Maturity Date and (ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental
Term Loans may be made hereunder pursuant to an amendment or restatement (an Incremental Term Loan Amendment) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender
participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement
and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.20. Nothing contained in this Section 2.20 shall constitute,
or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder, or provide Incremental Term Loans, at any time.
SECTION 2.21. Judgment Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due from
the Borrower hereunder in the currency expressed to be payable herein (the specified currency) into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the specified currency with such other currency at the Administrative Agents main New York City office on the Business Day preceding
that on which final, non-appealable judgment is given. The obligations of the Borrower in respect of any sum due to any Lender or the Administrative Agent hereunder shall, notwithstanding any judgment in a currency other than the specified currency,
be discharged only to the extent that on the Business Day following receipt by such Lender or the Administrative Agent (as the case may be) of any sum adjudged to be so due in such other currency such Lender or the Administrative Agent (as the case
may be) may in accordance with normal, reasonable banking procedures purchase the specified currency with such other currency. If the amount of the specified currency so purchased is less than the sum originally due to such Lender or the
Administrative Agent, as the case may be, in the specified currency, the Borrower agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any such judgment, to indemnify such Lender or the
Administrative Agent, as the case may be, against such loss, and if the amount of the specified currency so purchased exceeds (a) the sum originally due to any Lender or the Administrative Agent, as the case may be, in the specified currency
and (b) any amounts shared with other Lenders as a result of allocations of such excess as a disproportionate payment to such Lender under Section 2.18, such Lender or the Administrative Agent, as the case may be, agrees to remit
such excess to the Borrower.
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SECTION 2.22. Defaulting Lenders. Notwithstanding any provision of this Agreement to
the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders
have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that, except as otherwise provided in Section 9.02, this clause
(b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders
in accordance with their respective Applicable Percentages but only to the extent that the sum of all non-Defaulting Lenders Revolving Credit Exposures plus such Defaulting Lenders Swingline Exposure and LC Exposure does not exceed the
total of all non-Defaulting Lenders Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can
only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing
Bank only the Borrowers obligations corresponding to such Defaulting Lenders LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in
Section 2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such
Defaulting Lenders LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lenders LC
Exposure during the period such Defaulting Lenders LC Exposure is cash collateralized;
(iv) if the LC Exposure of the
non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders Applicable
Percentages; and
(v) if all or any portion of such Defaulting Lenders LC Exposure is neither reallocated nor cash collateralized
pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender
(solely with respect to the portion of such Defaulting Lenders Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lenders LC Exposure
shall be payable to the Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so
long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related
exposure and the Defaulting Lenders then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.22(c), and
participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(c)(i) (and such Defaulting Lender
shall not participate therein).
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If (i) a Bankruptcy Event with respect to a Lender Parent shall occur following the date
hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender
commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank, as the case
may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder.
In the event that the Administrative Agent, the Borrower, the Swingline Lender and the Issuing Bank each agrees that a Defaulting Lender has
adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lenders Commitment and on such date such Lender
shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
ARTICLE III
Representations
and Warranties
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers; Subsidiaries. Each of the Borrower and its Subsidiaries is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and, except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required. As of the Effective Date, Schedule 3.01 hereto identifies each
Subsidiary, noting whether such Subsidiary is a Material Domestic Subsidiary, the jurisdiction of its incorporation or organization, as the case may be, the percentage of issued and outstanding shares of each class of its capital stock or other
equity interests owned by the Borrower and the other Subsidiaries and, if such percentage is not 100% (excluding directors qualifying shares as required by law), a description of each class issued and outstanding. All of the outstanding shares
of capital stock and other equity interests of each Subsidiary are validly issued and outstanding and fully paid and nonassessable and all such shares and other equity interests indicated on Schedule 3.01 as owned by the Borrower or another
Subsidiary are owned, beneficially and of record, by the Borrower or any Subsidiary free and clear of all Liens. There are no outstanding commitments or other obligations of the Borrower or any Subsidiary to issue, and no options, warrants or other
rights of any Person to acquire, any shares of any class of capital stock or other equity interests of the Borrower or any Subsidiary, excluding (i) equity awards under employee or director compensation plans, (ii) shares subject to
purchase under the Borrowers employee stock purchase plan, (iii) shares issuable upon conversion of the Existing Convertible Notes, and (iv) shares issuable upon exercise of warrants issued by the Borrower in connection with the
issuance of the Existing Convertible Notes.
SECTION 3.02. Authorization; Enforceability. The Transactions to which each Loan
Party is a party are within such Loan Partys organizational powers and have been duly authorized by all necessary organizational actions and, if required, actions by equity holders. The Loan Documents to which each Loan Party is a party have
been duly executed and delivered by such Loan Party and constitute a legal, valid and binding obligation of such Loan Party, enforceable 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.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (b) will not violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any other Loan Party or any order of any Governmental Authority, (c) will not violate or result in a default under any material indenture or other material agreement or material instrument binding
upon the Borrower or any of its Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by the Borrower or any of its Subsidiaries, and (d) will not result in the creation or imposition of any Lien on
any asset of the Borrower or any of its Subsidiaries.
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SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Borrower
has heretofore furnished to the Lenders or filed for public availability on the SECs Electronic Data Gathering and Retrieval System its consolidated balance sheet and statements of income, stockholders equity and cash flows as of and for the
fiscal year ended June 28, 2015 reported on by Ernst & Young LLP, independent public accountants. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of
the Borrower and its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP.
(b) Since June 28,
2015, there has been no material adverse change in the business, assets, operations or condition (financial or otherwise) of the Borrower and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Borrower and its Subsidiaries has good title to, or valid leasehold interests in,
all its real and personal property material to the Borrower and its Subsidiaries, taken as a whole, except for defects in title that do not materially interfere with the ability of the Borrower and its Subsidiaries taken as a whole to conduct their
business as currently conducted or to utilize such properties for their intended purposes.
(b) Each of the Borrower and its Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to the Borrower and its Subsidiaries, taken as a whole, and the use thereof by the Borrower and its Subsidiaries does not infringe
upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation, Environmental and Labor Matters. (a) Except as set forth on Schedule 3.06, on the Effective
Date there are no actions, suits, proceedings or investigations by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened against or affecting the Borrower or any of its Subsidiaries
(i) that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or (ii) that involve this Agreement or the Transactions.
(b) Except with respect to any matters that, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability.
(c) There are no strikes, lockouts or slowdowns against the Borrower or any of its Subsidiaries pending and, to their knowledge, none are
threatened, in each case, that would be material to the Borrower and its Subsidiaries taken as a whole. The hours worked by and payments made to employees of the Borrower and its Subsidiaries have not been in violation of the Fair Labor Standards
Act or any other applicable Federal, state, local or foreign law relating to such matters except as, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. All material payments due from the
Borrower or any of its Subsidiaries, or for which any claim may be made against the Borrower or any of its Subsidiaries, on account of wages and employee health and welfare insurance and other benefits, have been paid or accrued as liabilities on
the books of the Borrower or such Subsidiary except as, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. The consummation of the Transactions will not give rise to any right of termination or
right of renegotiation on the part of any union under any collective bargaining agreement under which the Borrower or any of its Subsidiaries is bound.
SECTION 3.07. Compliance with Laws and Agreements. Each of the Borrower and its Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or its property, except where the failure to do so, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect.
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SECTION 3.08. Margin Regulations; Investment Company Status. (a) Neither the
Borrower nor any of its Subsidiaries is engaged or will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board), or extending credit
for the purpose of purchasing or carrying margin stock.
(b) Neither the Borrower nor any of its Subsidiaries is an investment
company as defined in, or subject to regulation under, the Investment Company Act of 1940.
SECTION 3.09. Taxes. Each of
the Borrower and its Subsidiaries has timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being
contested in good faith by appropriate proceedings and for which the Borrower or such Subsidiary, as applicable, has set aside on its books adequate reserves or (b) to the extent that the failure to do so could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11. Disclosure. Neither the Information Memorandum nor any of the other written reports, financial statements,
certificates or other information furnished by or on behalf of the Borrower or any Subsidiary to the Administrative Agent or any Lender in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that,
with respect to (i) the Target and the Targets subsidiaries, such representation shall, until and including the KLA-Tencor Acquisition Closing Date, be made to the Borrowers knowledge and (ii) projected financial information
and other forward-looking information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.12. Federal Reserve Regulations. No part of the proceeds of any Loan have been used or will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X.
SECTION 3.13. Liens. There are no Liens on any of the real or personal properties of the Borrower or any Subsidiary except for
Liens permitted by Section 6.02.
SECTION 3.14. No Default. No Default or Event of Default has occurred and is
continuing.
SECTION 3.15. Anti-Corruption Laws and Sanctions. The Borrower has implemented and maintains in effect policies
and procedures designed to reasonably ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their
respective officers and employees and to the knowledge of the Borrower its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary or to the
knowledge of the Borrower or such Subsidiary any of their respective directors, officers or employees, or (b) to the knowledge of the Borrower, any agent of the Borrower or any Subsidiary that will act in any capacity in connection with or
benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit, use of proceeds or other Transactions will violate Anti-Corruption Laws or applicable Sanctions.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit
hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received copies of the Loan Documents duly executed by each party thereto.
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(b) The Administrative Agent shall have received a customary legal opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of Jones Day, counsel for the Loan Parties, in customary form and substance reasonably satisfactory to the Administrative Agent and the Borrower.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of the initial Loan Parties, the authorization of the Transactions and any other legal matters relating to such Loan Parties, the Loan Documents or the Transactions, all in form and
substance reasonably satisfactory to the Administrative Agent and the Borrower, including a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (i) the certificate of incorporation or other charter document of
such Loan Party, (ii) the by-laws or other organizational documents of such Loan Party, (iii) the names and true signatures of the officers of such Loan Party and (iv) the resolutions of the Board of Directors or other governing body
of such Loan Party authorized to sign this Agreement and each other Loan Document.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a Vice President or a Financial Officer of the Borrower, certifying (i) that the representations and warranties contained in Article III are true and correct as of such
date and (ii) that no Default or Event of Default has occurred and is continuing as of such date.
(e) The Administrative Agent shall
have received, at least three Business Days prior to the Effective Date, all documentation and other information regarding the Loan Parties reasonably requested by it at least ten Business Days in advance of the Effective Date, which documentation
or other information is required by bank regulatory authorities under applicable know-your-customer and anti-money laundering rules and regulations, including the Patriot Act.
The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such notice shall be conclusive and binding.
SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the occasion of any Borrowing, and of the Issuing
Bank to issue, amend, renew or extend any Letter of Credit, is subject to the satisfaction of the following conditions:
(a) The
representations and warranties of the Borrower set forth in this Agreement (excluding the representations and warranties set forth in Sections 3.04(b) and 3.06(a)) shall be true and correct on and as of the date of such Borrowing or
the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after
giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and (b) of this Section.
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ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated, in each case, without any pending draw, and all LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower (or, if earlier, by the date that the Annual Report on Form 10-K of
the Borrower for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its audited consolidated balance sheet and
related statements of operations, stockholders equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by Ernst & Young LLP or
other independent public accountants of recognized national standing (without a going concern or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such
consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (or, if earlier, by the date
that the Quarterly Report on Form 10-Q of the Borrower for such fiscal quarter would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its
consolidated balance sheet and related statements of operations, stockholders equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form
the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial
condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial
Officer of the Borrower (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Section 6.05 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in
Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by
the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the
case may be;
(e) promptly after Moodys or S&P shall have announced a change in the applicable rating established or deemed to
have been established for the Index Debt, written notice of such rating change; and
(f) promptly following any request therefor, such
other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request.
Documents required to be delivered pursuant to clauses (a), (b) and (d) of this Section 5.01 may be delivered
electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SECs Electronic Data Gathering and Retrieval System. Notwithstanding anything contained
herein, in every instance the Borrower shall be required to provide paper copies of the compliance certificates required by clause (c) of this Section 5.01 to the Administrative Agent.
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SECTION 5.02. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following after a Responsible Officer of the Borrower obtains knowledge thereof:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting
the Borrower or any Affiliate thereof that could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any
ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect; and
(d) any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other executive officer of the Borrower setting forth
the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will cause each of its Material Subsidiaries to, do or cause
to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, qualifications, licenses, permits, privileges, franchises, governmental authorizations and intellectual property rights material
to the Borrower and its Subsidiaries, taken as a whole, and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted except where the failure to do so could not reasonably be expected to result
in a Material Adverse Effect; provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03.
SECTION 5.04. Payment of Obligations. The Borrower will, and will cause each of its Subsidiaries to, pay its obligations,
including Tax liabilities, that, if not paid, could reasonably be expected to result in a Material Adverse Effect before the same shall become delinquent or in default, except where (a) the validity or amount thereof is being contested in good
faith by appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending such contest could not reasonably
be expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted except where the failure to do so could not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, and (b) maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are, in all
material respects, customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations.
SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and will cause each of its Subsidiaries to, keep proper
books of record and account in which customary entries are made of dealings and transactions in relation to its business and activities, which entries will be full, true and correct in all material respects. The Borrower will, and will cause each of
its Subsidiaries to, permit any representatives designated by the Administrative Agent, upon reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such reasonable times and as often as reasonably requested; provided that so long as no Event of Default has occurred and is then continuing, the Borrower shall not be
responsible for the costs and expenses of the Administrative Agent for more than one such visit, inspection or examination in any calendar year. The Borrower acknowledges that the Administrative Agent, after exercising its rights of inspection, may
prepare and distribute to the Lenders certain reports pertaining to the Borrower and its Subsidiaries assets for internal use by the Administrative Agent and the Lenders.
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SECTION 5.07. Compliance with Laws and Material Contractual Obligations. The Borrower
will, and will cause each of its Subsidiaries to, (i) comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property (including without limitation Environmental Laws) and (ii) perform in
all material respects its obligations under material agreements to which it is a party, in the case of clauses (i) and (ii), except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect. The Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption
Laws and applicable Sanctions.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used only to finance the
working capital needs, and for general corporate purposes, of the Borrower and its Subsidiaries. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of
the Board, including Regulations T, U and X. The Borrower will not request any Borrowing or Letter of Credit, and the Borrower shall not use, and shall maintain in effect and enforce policies and procedures designed to reasonably ensure that its
Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Borrowing or Letter of Credit (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or
giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any
Sanctioned Country or (iii) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
SECTION 5.09. Subsidiary Guaranty. As promptly as possible but in any event within 30 days (or such later date as may be agreed
upon by the Administrative Agent) after any Person becomes a Subsidiary or any Subsidiary qualifies independently as, or is designated by the Borrower or the Administrative Agent as, a Subsidiary Guarantor pursuant to the definition of
Material Domestic Subsidiary, the Borrower shall provide the Administrative Agent with written notice thereof and shall cause each such Subsidiary which also qualifies as a Material Domestic Subsidiary to deliver to the Administrative
Agent a joinder to the Subsidiary Guaranty (in the form contemplated thereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions thereof, such Subsidiary Guaranty to be accompanied by appropriate corporate resolutions,
other corporate documentation and legal opinions in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
ARTICLE VI
Negative
Covenants
Until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees payable
hereunder have been paid in full and all Letters of Credit have expired or terminated, in each case, without any pending draw, and all LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Subsidiary Indebtedness. The Borrower will not permit any Subsidiary to create, incur, assume or permit to exist any
Indebtedness, except:
(a) the Obligations;
(b) Indebtedness of any Subsidiary existing on the date hereof and set forth in Schedule 6.01 and extensions, renewals and replacements of any
such Indebtedness with Indebtedness that does not increase the outstanding principal amount thereof;
(c) Indebtedness of any Subsidiary
to the Borrower or any other Subsidiary;
(d) Guarantees by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary;
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(e) Indebtedness of any Subsidiary incurred to finance the acquisition, construction or
improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and
extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this clause (e) shall not exceed $150,000,000 at any time outstanding;
(f) Indebtedness of any Subsidiary as an account party in respect of trade letters of credit;
(g) the Novellus Convertible Notes and extensions, renewals and replacements of any such Indebtedness with Indebtedness of a similar type that
does not increase the outstanding principal amount thereof;
(h) Indebtedness of any Subsidiary that is a Loan Party so long as, at the
time of the incurrence thereof and after giving effect thereto (on a pro forma basis), the Borrower is in pro forma compliance with the Capitalization Covenant or the Leverage Covenant, as determined to be applicable pursuant to
Section 6.05(a);
(i) Indebtedness of any Subsidiary that is not a Loan Party so long as the aggregate outstanding principal
amount of such Indebtedness, when aggregated with the aggregate outstanding principal amount of Indebtedness and other obligations permitted by Section 6.02(e), does not exceed 7.5% of Consolidated Total Assets (calculated as of the most
recently ended fiscal quarter and determined at the time of the incurrence of such Indebtedness by reference to the Borrowers financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior
to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a)) at any time outstanding; and
(j) Indebtedness of the Target and its subsidiaries, and any extensions, renewals and replacements of any such Indebtedness with Indebtedness
that does not increase the outstanding principal amount thereof; provided that (A) such original Indebtedness exists on the KLA-Tencor Acquisition Closing Date and is not created in contemplation of or in connection with the KLA-Tencor
Acquisition and (B) until such time as the Target and each of its subsidiaries which is an obligor with respect to such Indebtedness have become Loan Parties, neither the Borrower nor any Subsidiary (other than the Target and its subsidiaries
which are obligors with respect to such original Indebtedness) shall Guarantee or otherwise become liable (except in the case of such Indebtedness under letters of credit which are outstanding on the KLA-Tencor Acquisition Closing Date) for the
payment of such Indebtedness.
SECTION 6.02. Liens. The Borrower will not, and will not permit any Subsidiary to, create,
incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any Subsidiary existing on the date hereof and set forth in
Schedule 6.02; provided that (i) such Lien shall not apply to any other property or asset of the Borrower or any Subsidiary and (ii) such Lien shall secure only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;
(c) any Lien existing on any
property or asset prior to the acquisition thereof by the Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of the
Borrower or any Subsidiary and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be, and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;
47
(d) Liens on fixed or capital assets acquired, constructed or improved by the Borrower or any
Subsidiary; provided that (i) in the case of any Subsidiary, such security interests secure Indebtedness permitted by clause (e) of Section 6.01, (ii) such security interests and the Indebtedness secured
thereby are incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, (iii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or
capital assets and (iv) such security interests shall not apply to any other property or assets of the Borrower or any Subsidiary; and
(e) Liens on assets of the Borrower and its Subsidiaries not otherwise permitted above so long as the aggregate outstanding principal amount
of the Indebtedness and other obligations subject to such Liens, when aggregated with the aggregate outstanding principal amount of Indebtedness permitted by Section 6.01(i), does not at any time exceed 7.5% of Consolidated Total Assets
(calculated as of the most recently ended fiscal quarter and determined at the time of the incurrence of such Indebtedness by reference to the Borrowers financial statements most recently delivered pursuant to Section 5.01(a) or
(b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a)) at any
time outstanding.
SECTION 6.03. Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any
Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) any of its assets
(including pursuant to a Sale and Leaseback Transaction), or any of the Equity Interests of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation;
(ii) any Subsidiary may merge into any Person that either is a Subsidiary
or becomes a Subsidiary as a result of such transaction (provided that any such merger involving a Subsidiary that is a Loan Party must result in such Loan Party as the surviving entity and any such merger involving the Borrower must result
in the Borrower as the surviving entity);
(iii) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to a Loan
Party;
(iv) the Borrower and its Subsidiaries may (A) sell inventory in the ordinary course of business, (B) effect sales,
trade-ins or dispositions of used equipment in the ordinary course of business consistent with past practice, (C) enter into licenses of technology in the ordinary course of business, and (D) make any other sales, transfers, leases or
dispositions that, together with all other property of the Borrower and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (D) during any fiscal year of the Borrower, does not exceed 10% of Consolidated
Total Assets (calculated as of the most recently ended fiscal quarter and determined at the time of the incurrence of such Indebtedness by reference to the Borrowers financial statements most recently delivered pursuant to
Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in
Section 3.04(a)); and
(v) any Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower determines in
good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than
(i) businesses of the type conducted by the Borrower, the Target and their respective subsidiaries on the date of execution of this Agreement, (ii) other technology-related businesses, and (iii) businesses reasonably related to
clauses (i) or (ii).
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SECTION 6.04. Transactions with Affiliates. The Borrower will not, and will not
permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except
(a) in the ordinary course of business at prices and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be obtained on an arms-length basis from unrelated third parties and (b) transactions
between or among the Borrower and its wholly owned Subsidiaries not involving any other Affiliate.
SECTION 6.05. Financial
Covenants.
(a) Maximum Total Indebtedness to Capitalization Ratio. The Borrower will not permit the ratio, determined as of
the end of each of its fiscal quarters ending on and after December 31, 2015, of (i) Consolidated Total Indebtedness to (ii) Consolidated Capitalization to be greater than 0.50 to 1.00 (the Capitalization Covenant);
provided that if, as of the end of the first fiscal quarter following the KLA-Tencor Acquisition Closing Date, the Borrower is not in compliance with the Capitalization Covenant, the Borrower shall be deemed not to have violated the
Capitalization Covenant so long as the Borrower does not permit the ratio, determined at the end of each of its fiscal quarters, of (i) Consolidated Total Indebtedness to (ii) Consolidated Adjusted EBITDA for the four fiscal quarter period
then ended to be greater than 4.50 to 1.00 (the Leverage Covenant). The Leverage Covenant shall be tested in lieu of the Capitalization Covenant until and including the earlier of (x) the end of the first two consecutive full
fiscal quarters commencing following the KLA-Tencor Acquisition Closing Date that the Borrower is in compliance with the Capitalization Covenant and (y) December 31, 2017.
(b) Minimum Liquidity. The Borrower will not permit Liquidity, determined as of the end of each of its fiscal quarters ending on and
after December 31, 2015, to be less than $1,000,000,000; provided that in addition to the foregoing, the Borrower shall not permit Liquidity to be less than $1,000,000,000 at the time of, and immediately after giving effect (including
giving effect on a pro forma basis) to, any repayment or prepayment of Indebtedness of the Borrower or any Subsidiary in an amount greater than $200,000,000.
ARTICLE VII
Events of
Default
If any of the following events (Events of Default) shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the
Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement or any other Loan Document, when and as the same shall
become due and payable, and such failure shall continue unremedied for a period of three Business Days;
(c) any representation or
warranty made or deemed made by or on behalf of the Borrower or any Subsidiary in or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect when made or
deemed made;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Sections 5.02,
5.03 (with respect to the Borrowers existence), 5.08 or 5.09, in Article VI or in Article X;
(e)
the Borrower or any Subsidiary Guarantor, as applicable, shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clauses (a), (b) or (d) of this
Article) or any other Loan Document, and such failure shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender);
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(f) the Borrower or any Subsidiary shall fail to make any payment (whether of principal or
interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable;
(g) any
event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this
clause (g) shall not apply to (x) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness or (y) any redemption, repurchase, conversion or
settlement with respect to any Convertible Debt pursuant to its terms unless such redemption, repurchase, conversion or settlement results from a default thereunder or an event of the type that constitutes an Event of Default;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Borrower or any Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Subsidiary shall
(i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect,
(ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of $150,000,000 shall be rendered against the
Borrower, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to
attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred
that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) the occurrence of any default, as defined in any Loan Document (other than this Agreement) or the breach of any of the terms
or provisions of any Loan Document (other than this Agreement), which default or breach continues beyond any period of grace therein provided; or
(o) any material provision of any Loan Document for any reason ceases to be valid, binding and enforceable in accordance with its terms (or
the Borrower or any Subsidiary shall challenge the enforceability of any
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Loan Document or shall assert in writing, or engage in any action or inaction based on any such assertion, that any provision of any of the Loan Documents has ceased to be or otherwise is not
valid, binding and enforceable in accordance with its terms);
then, and in every such event (other than an event with respect to the Borrower described
in clauses (h) or (i) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take either
or both of the following actions, at the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all
fees and other Obligations of the Borrower accrued hereunder and under the other Loan Documents, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the
Borrower; and in case of any event with respect to the Borrower described in clauses (h) or (i) of this Article, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with
accrued interest thereon and all fees and other Obligations accrued hereunder and under the other Loan Documents, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and remedies provided to the Administrative Agent
under the Loan Documents or at law or equity.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are
reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the
Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent
shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly
contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in
Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower
or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the
consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in
connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability,
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effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any
Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the
proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any
one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions
of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities
provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After
the Administrative Agents resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges
and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding
commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and
information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder and in deciding whether or to the extent to which it will continue as a lender or assign or otherwise transfer
its rights, interests and obligations hereunder.
None of the Lenders or other Persons, if any, identified in this Agreement as an
Arranger, Syndication Agent or Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than, in the case of such Lenders, those applicable to all Lenders as such. Without limiting the
foregoing, none of such Lenders or such other Persons shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders and such other Persons in their
respective capacities as Arranger, Syndication Agent or Documentation Agent, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph.
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The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or
omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the
principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) Except in the case of notices and other communications expressly permitted to be given by
telephone (and subject to paragraph (b) below), 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, as follows:
(i) if to the Borrower, to it at Lam Research Corporation, 4650 Cushing Parkway, Fremont, California 94538,
Attention of Odette Go, Treasurer, (Telecopy No. 510-572-1586; Telephone No. 510-572-5151; electronic mail address: treasuryorg@lamresearch.com);
(ii) if to the Administrative Agent, (A) in the case of Borrowings denominated in Dollars, to JPMorgan Chase Bank, N.A., 10 South
Dearborn Street, Chicago, Illinois 60603, Attention of April Yebd (Telecopy No. 888-292-9533; Telephone No. 312-732-2628; electronic mail address: april.yebd@jpmorgan.com and JPM.agency.cri@jpmorgan.com) and (B) in the case of
Borrowings denominated in Foreign Currencies, to J.P. Morgan Europe Limited, 25 Bank Street, Canary Wharf, London E14 5JP, Attention of The Manager, Loan & Agency Services (Telecopy No. 44 207 777 2360), and in each case with a copy to
JPMorgan Chase Bank, N.A., 1301 2nd Avenue, Floor 25, Seattle, Washington 98101, Attention of Timothy Lee (electronic email address: timothy.d.lee@jpmorgan.com);
(iii) if to the Issuing Bank, to it at its address (or telecopy number) set forth in its Administrative Questionnaire;
(iv) if to the Swingline Lender, to it at JPMorgan Chase Bank, N.A., 10 South Dearborn Street, Chicago, Illinois 60603, Attention of April
Yebd (Telecopy No. 888-292-9533; Telephone No. 312-732-2628; electronic mail address: april.yebd@jpmorgan.com and JPM.agency.cri@jpmorgan.com), with a copy to JPMorgan Chase Bank, N.A., 1301 2nd Avenue, Floor 25, Seattle, Washington 98101,
Attention of Timothy Lee (electronic email address: timothy.d.lee@jpmorgan.com); and
(v) if to any other Lender, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the
opening of business on the next business day for the recipient). Notices delivered through Electronic Systems (including via electronic mail), to the extent provided in paragraph (b) below, shall be effective as provided in said
paragraph (b).
(b) Notices and other communications to the Lenders and the Issuing Bank hereunder may be delivered or furnished by
using Electronic Systems pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable
Lender. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such
procedures may be limited to particular notices or communications.
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Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the senders receipt of an acknowledgement from the intended recipient (such as by the return receipt requested function, as available, return e-mail or other written
acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of
notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent
during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
(c) Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.
(d) Electronic Systems.
(i) The Borrower agrees that the Administrative Agent may, but shall not be obligated to, make Communications (as defined below) available to
the Issuing Bank and the other Lenders by posting the Communications on Debt Domain, Intralinks, Syndtrak, ClearPar or a substantially similar Electronic System.
(ii) Any Electronic System used by the Administrative Agent is provided as is and as available. The Agent Parties (as
defined below) do not warrant the adequacy of such Electronic Systems and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty
of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or any Electronic System. In no event shall
the Administrative Agent or any of its Related Parties (collectively, the Agent Parties) have any liability to any Loan Party, any Lender, the Issuing Bank or any other Person or entity for damages of any kind, including, without
limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Partys or the Administrative Agents transmission of Communications through
an Electronic System. Communications means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or the transactions
contemplated therein which is distributed by the Administrative Agent, any Lender or the Issuing Bank by means of electronic communications pursuant to this Section, including through an Electronic System.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in
exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and
are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a
Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as provided in Section 2.20 with respect to an Incremental Term Loan Amendment, neither this Agreement nor any
provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower and the Administrative Agent with the consent of the Required
Lenders; provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of interest
thereon, or reduce any fees payable hereunder, without the
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written consent of each Lender directly affected thereby, (iii) postpone the scheduled date of payment of the principal amount of any Loan or LC Disbursement, or any interest thereon, or any
fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change
Section 2.18(b) or (d) in a manner that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender, (v) change any of the provisions of this Section or the definition of
Required Lenders or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent
of each Lender (it being understood that, solely with the consent of the parties prescribed by Section 2.20 to be parties to an Incremental Term Loan Amendment, Incremental Term Loans may be included in the determination of Required
Lenders on substantially the same basis as the Commitments and the Revolving Loans are included on the Effective Date) or (vi) release the Company from its obligations under Article X or release all or substantially all of the Subsidiary
Guarantors from their obligations under the Subsidiary Guaranty, in each case, without the written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may be (it being understood that any change to
Section 2.22 shall require the consent of the Administrative Agent, the Issuing Bank and the Swingline Lender). Notwithstanding the foregoing, no consent with respect to any amendment, waiver or other modification of this Agreement shall
be required of any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clause (i), (ii) or (iii) of the first proviso of this paragraph and then only in the event such
Defaulting Lender shall be directly affected by such amendment, waiver or other modification.
(c) Notwithstanding the foregoing, this
Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (x) to add one or more credit facilities (in addition to the Incremental
Term Loans pursuant to an Incremental Term Loan Amendment) to this Agreement and to permit extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this
Agreement and the other Loan Documents with the Revolving Loans, Incremental Term Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the
Required Lenders and Lenders.
(d) If, in connection with any proposed amendment, waiver or consent requiring the consent of each
Lender or each Lender directly affected thereby, the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained
being referred to herein as a Non-Consenting Lender), then the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently with such replacement, (i) another
bank or other entity which is reasonably satisfactory to the Borrower and the Administrative Agent shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and
Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of
Section 9.04, and (ii) the Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) the outstanding principal amount of its Loans and participations in LC Disbursements and all
interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections
2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such
date rather than sold to the replacement Lender.
(e) Notwithstanding anything to the contrary herein the Administrative Agent may, with
the consent of the Borrower only, amend, modify or supplement this Agreement or any of the other Loan Documents to cure any ambiguity, omission, mistake, defect or inconsistency.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) 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 and the Arrangers, in connection with the syndication and distribution (including, without
limitation, via the internet or through a service such as Intralinks) of the credit
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facilities provided for herein, the preparation and administration of this Agreement and the other 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), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of
Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank, any Arranger or any Lender, including the reasonable fees, charges and disbursements of any counsel for the
Administrative Agent, the Issuing Bank, any Arranger or any Lender, in connection with the enforcement or protection of its rights in connection with this Agreement and any other Loan Document, including its rights under this Section, or in
connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, each Arranger, each Syndication Agent, each Documentation Agent, the Issuing Bank
and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an Indemnitee) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Loan Document
or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter
of Credit or the use of the proceeds therefrom (including any refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or
any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower
or any of its Subsidiaries, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses (A) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (B) result from a claim initiated by the Borrower
or any other Loan Party against an Indemnitee for a material breach of such Indemnitees express obligations hereunder or under any other Loan Document if the Borrower or such Loan Party has obtained a final and nonappealable judgment in its
favor on such claim as determined by a court of competent jurisdiction; provided, that any legal expenses shall be limited to one counsel for all Indemnitees taken as a whole and if reasonably necessary, a single local counsel for all
Indemnitees taken as a whole in each relevant jurisdiction (which may be a single local counsel acting in multiple jurisdictions) and, solely in the case of an actual or perceived conflict of interest, one additional counsel in each relevant
jurisdiction to each group of affected Indemnitees similarly situated taken as a whole. This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax
claim.
(c) To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent, the Issuing
Bank or the Swingline Lender under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may be, such Lenders
Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount (it being understood that the Borrowers failure to pay any such amount shall not relieve the
Borrower of any default in the payment thereof); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, the
Issuing Bank or the Swingline Lender in its capacity as such.
(d) To the extent permitted by applicable law, neither the Borrower nor any
Indemnitee shall assert, and each of the Borrower, the Administrative Agent, the Swingline Lender and the Issuing Bank hereby waives, on its own behalf and on behalf of its Related Parties, any claim against any Indemnitee (in the case of such
waiver by the Borrower) or against the Borrower (in the case of such waiver by any Indemnitee) (i) for any damages arising from the use by others of information or other materials obtained through telecommunications, electronic or other
information transmission systems (including the Internet), or (ii) on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as
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a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds
thereof; provided that nothing contained in this Section 9.03(d) shall limit the Borrowers indemnification obligations set forth in Section 9.03(b).
(e) All amounts due under this Section shall be payable not later than 15 days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights
or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby
(including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Persons (other than an
Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably
withheld or delayed) of:
(A) the Borrower (provided that the Borrower shall be deemed to have consented to any such
assignment unless it shall object thereto by written notice to the Administrative Agent within five Business Days after having received notice thereof); provided, further, that no consent of the Borrower shall be required for an
assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default has occurred and is continuing, any other assignee;
(B) the Administrative Agent;
(C) the Issuing Bank; and
(D) the Swingline Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund or an assignment of the
entire remaining amount of the assigning Lenders Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent) shall not be less than $10,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be
required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lenders rights and obligations under this Agreement, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lenders
rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500, such fee to be paid by either the assigning Lender or the assignee Lender or shared between such Lenders; and
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in
which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its affiliates and their Related Parties or their respective securities) will
be made available and who may receive such information in accordance with the assignees compliance procedures and applicable laws, including Federal and state securities laws.
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For the purposes of this Section 9.04(b), the terms Approved Fund and
Ineligible Institution have the following meanings:
Approved Fund means any Person (other than a natural
person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or
(c) an entity or an Affiliate of an entity that administers or manages a Lender.
Ineligible Institution means
(a) a natural person, (b) a Defaulting Lender, (c) the Borrower, any of its Subsidiaries or any of its Affiliates, or (d) a company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural
person or relative(s) thereof.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section,
from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption
covering all of the assigning Lenders rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and
9.03). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this
purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal
amount (and stated interest) of the Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to time (the Register). The entries in the Register shall be conclusive absent manifest error, and the
Borrower, the Administrative Agent, the Issuing Bank and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower, the Issuing Bank and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignees
completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee shall
have failed to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(e) or 9.03(c), the Administrative Agent shall have no obligation to accept such
Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement
unless it has been recorded in the Register as provided in this paragraph.
(c) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell participations to one or more banks or other entities (a Participant), other than
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an Ineligible Institution, in all or a portion of such Lenders rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lenders obligations under this Agreement shall remain unchanged; (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and (C) the
Borrower, the Administrative Agent, the Issuing Bank and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lenders rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that
such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 9.02(b) that affects such Participant.
The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 (subject to the requirements and limitations therein, including the requirements under Section 2.17(f) (it
being understood that the documentation required under Section 2.17(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph
(b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 2.18 and 2.19 as if it were an assignee under paragraph (b) of this Section; and (B) shall
not be entitled to receive any greater payment under Sections 2.15 or 2.17, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a
greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.18(d) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower,
maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participants interest in the Loans or other obligations under the Loan Documents (the Participant
Register); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participants interest in any
Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in
registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the
Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no
responsibility for maintaining a Participant Register.
(d) Any Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank or other central banking authority having jurisdiction over such
Lender, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any
such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied
upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent, the Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement or any other Loan Document is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any other Loan Document or any provision hereof or thereof.
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SECTION 9.06. Counterparts; Integration; Effectiveness; Electronic Execution. 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. This Agreement, the other
Loan Documents and any separate letter agreements with respect to fees payable to the Administrative Agent constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01(a), 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 each of the other parties hereto, 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, e-mailed .pdf or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a
manually executed counterpart of this Agreement. The words execution, signed, signature, delivery, and words of like import in or relating to any document to be signed in connection with this Agreement
and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed
signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the
New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION 9.07. Severability. Any provision of any Loan Document 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 thereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.08. Right of
Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final and in whatever currency denominated) at any time held and other obligations at any time owing by such Lender or Affiliate to or for the credit or the account of the Borrower or any
Subsidiary Guarantor against any of and all of the Obligations held by such Lender, irrespective of whether or not such Lender shall have made any demand under the Loan Documents and although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This Agreement shall be construed in accordance
with and governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself and
its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County, Borough of Manhattan, and of the United States District Court for the Southern District of New York, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to any Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan Document shall affect any right that the Administrative Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any Loan Party or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection
which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in paragraph (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01.
Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
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SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. 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 9.12. Confidentiality. Each of the Administrative Agent, the Issuing Bank and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates directors, officers, partners, members, employees and agents, including accountants, legal counsel, independent
auditors and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process,
(d) to any other party to this Agreement, (e) in connection with the exercise of any remedies under this Agreement or any other Loan Document or any suit, action or proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement, (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations or (iii) any credit insurance provider
relating to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section, (ii) becomes available to
the Administrative Agent, the Issuing Bank or any Lender on a non-confidential basis from a source other than the Borrower or (iii) was already lawfully in the Lenders possession on a non-confidential basis or is independently developed
by the Lender. For the purposes of this Section, Information means all information received from the Borrower relating to the Borrower or its business, other than any such information that is available to the Administrative Agent,
the Issuing Bank or any Lender on a non-confidential basis prior to disclosure by the Borrower. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation
to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. In addition, the Administrative Agent, each Arranger, the Issuing Bank
and each Lender may disclose the existence of this Agreement and the information about this Agreement to market data collectors, similar services providers to the lending industry, and service providers to the Administrative Agent, each Arranger,
the Issuing Bank and the Lenders in connection with the administration and management of this Agreement and the other Loan Documents.
EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN THE IMMEDIATELY PRECEDING PARAGRAPH FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY
INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL
HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
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ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR
THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER, THE OTHER LOAN PARTIES AND THEIR RELATED PARTIES OR
THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL
NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.
SECTION 9.13. USA PATRIOT Act.
Each Lender that is subject to the requirements of the Patriot Act hereby notifies each Loan Party that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies such Loan Party, which
information includes the name and address of such Loan Party and other information that will allow such Lender to identify such Loan Party in accordance with the Patriot Act.
SECTION 9.14. Releases of Subsidiary Guarantors.
(a) A Subsidiary Guarantor shall automatically be released from its obligations under the Subsidiary Guaranty upon the consummation of any
transaction permitted by this Agreement as a result of which such Subsidiary Guarantor ceases to be a Subsidiary; provided that, if so required by this Agreement, the Required Lenders shall have consented to such transaction and the terms of
such consent shall not have provided otherwise. In connection with any termination or release pursuant to this Section, the Administrative Agent shall (and is hereby irrevocably authorized by each Lender to) execute and deliver to any Loan Party, at
such Loan Partys expense, all documents that such Loan Party shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this Section shall be without recourse to or warranty by the
Administrative Agent.
(b) Further, the Administrative Agent may (and is hereby irrevocably authorized by each Lender to), upon the
request of the Borrower, release any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty if such Subsidiary Guarantor is no longer a Material Domestic Subsidiary.
(c) At such time as the principal and interest on the Loans, all LC Disbursements, the fees, expenses and other amounts payable under the Loan
Documents and the other Obligations (other than obligations under any Swap Agreement or any Banking Services Agreement, and other Obligations expressly stated to survive such payment and termination) shall have been paid in full in cash, the
Commitments shall have been terminated and no Letters of Credit shall be outstanding, the Subsidiary Guaranty and all obligations (other than those expressly stated to survive such termination) of each Subsidiary Guarantor thereunder shall
automatically terminate, all without delivery of any instrument or performance of any act by any Person.
SECTION 9.15. Interest
Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law
(collectively the Charges), shall exceed the maximum lawful rate (the Maximum Rate) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable
law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in
respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.
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SECTION 9.16. No Advisory or Fiduciary Responsibility. In connection with all aspects
of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees that: (i) (A) the arranging and other services
regarding this Agreement provided by the Arrangers, the Lenders, the Syndication Agents and the Documentation Agents are arms-length commercial transactions between the Borrower and its Affiliates, on the one hand, and the Arrangers, the
Lenders, the Syndication Agents, the Documentation Agents and their respective Affiliates, on the other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and
(C) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) each of the Arrangers, the Lenders, the
Syndication Agents, the Documentation Agents and their respective Affiliates is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor,
agent or fiduciary for the Borrower or any of its Affiliates, or any other Person and (B) no Arranger, Lender, Syndication Agent, Documentation Agent or any of their respective Affiliates has any obligation to the Borrower or any of its
Affiliates with respect to the transactions contemplated hereby except, in the case of a Lender, those obligations expressly set forth herein and in the other Loan Documents; and (iii) each of the Arrangers, the Lenders, the Syndication Agents,
the Documentation Agents and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and no Arranger, Lender, Syndication Agent, Documentation
Agent or any of their respective Affiliates has any obligation to disclose any of such interests to the Borrower or its Affiliates. To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against
each of the Arrangers, the Lenders, the Syndication Agents, the Documentation Agents and their respective Affiliates with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction
contemplated hereby.
ARTICLE X
Borrower Guarantee
In
order to induce the Lenders to extend credit to the Borrower hereunder and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the Borrower hereby absolutely and irrevocably and unconditionally
guarantees, as a primary obligor and not merely as a surety, the payment when and as due of the Specified Ancillary Obligations of the Subsidiaries. The Borrower further agrees that the due and punctual payment of such Specified Ancillary
Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any such Specified Ancillary
Obligation.
The Borrower represents to the Lenders and the Administrative Agent that as of the date hereof, and on each date on which a
Transaction (as defined in any ISDA Agreement or similar agreement entered into between the Lenders or any of their Affiliates and any Subsidiary) is entered into, it is an eligible contract participant, as such term is defined in the
U.S. Commodity Exchange Act, (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute, and covenants that it will continue to maintain such status until all of its obligations hereunder have been satisfied.
The Borrower waives presentment to, demand of payment from and protest to any Subsidiary of any of the Specified Ancillary Obligations, and
also waives notice of acceptance of its obligations and notice of protest for nonpayment. The obligations of the Borrower hereunder shall not be affected by (a) the failure of any applicable Lender (or any of its Affiliates) to assert any claim
or demand or to enforce any right or remedy against any Subsidiary under the provisions of any Banking Services Agreement, any Swap Agreement or otherwise; (b) any extension or renewal of any of the Specified Ancillary Obligations; (c) any
rescission, waiver, amendment or modification of, or release from, any of the terms or provisions of this Agreement, any other Loan Document, any Banking Services Agreement, any Swap Agreement or other agreement; (d) any default, failure or
delay, willful or otherwise, in the performance of any of the Specified Ancillary Obligations; (e) the failure of any applicable Lender (or any of its Affiliates) to take any steps to perfect and maintain any security interest in, or to
preserve any rights to, any security or collateral for the Specified Ancillary Obligations, if any; (f) any change in the corporate, partnership or other existence, structure or ownership of any Subsidiary or any other guarantor of any of the
Specified Ancillary Obligations; (g) the enforceability or validity of the Specified Ancillary Obligations or any part thereof or the
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genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral securing the Specified Ancillary Obligations or any part thereof, or any other
invalidity or unenforceability relating to or against any Subsidiary or any other guarantor of any of the Specified Ancillary Obligations, for any reason related to this Agreement, any other Loan Document, any Banking Services Agreement, any Swap
Agreement, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Subsidiary or any other guarantor of the Specified Ancillary Obligations, of any of the Specified Ancillary
Obligations or otherwise affecting any term of any of the Specified Ancillary Obligations; or (h) any other act, omission or delay to do any other act which may or might in any manner or to any extent vary the risk of the Borrower or otherwise
operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of the Borrower to subrogation.
The Borrower further agrees that its agreement hereunder constitutes a guarantee of payment when due (whether or not any bankruptcy or similar
proceeding shall have stayed the accrual or collection of any of the Specified Ancillary Obligations or operated as a discharge thereof) and not merely of collection, and waives any right to require that any resort be had by any applicable Lender
(or any of its Affiliates) to any balance of any deposit account or credit on the books of the Administrative Agent, the Issuing Bank or any Lender in favor of any Subsidiary or any other Person.
The obligations of the Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and
shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever (other than payment in full of the Specified Ancillary Obligations), by reason of the invalidity, illegality or unenforceability of any of the
Specified Ancillary Obligations, any impossibility in the performance of any of the Specified Ancillary Obligations or otherwise.
The
Borrower further agrees that its obligations hereunder shall constitute a continuing and irrevocable guarantee of all Specified Ancillary Obligations now or hereafter existing and shall continue to be effective or be reinstated, as the case may be,
if at any time payment, or any part thereof, of any Specified Ancillary Obligation (including a payment effected through exercise of a right of setoff) is rescinded, or is or must otherwise be restored or returned by any applicable Lender (or any of
its Affiliates) upon the insolvency, bankruptcy or reorganization of any Subsidiary or otherwise (including pursuant to any settlement entered into by a holder of Specified Ancillary Obligations in its discretion).
In furtherance of the foregoing and not in limitation of any other right which any applicable Lender (or any of its Affiliates) may have at
law or in equity against the Borrower by virtue hereof, upon the failure of any Subsidiary to pay any Specified Ancillary Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, the Borrower hereby promises to and will, upon receipt of written demand by any applicable Lender (or any of its Affiliates), forthwith pay, or cause to be paid, to such applicable Lender (or any of its Affiliates) in cash an amount equal
to the unpaid principal amount of such Specified Ancillary Obligations then due, together with accrued and unpaid interest thereon. The Borrower further agrees that if payment in respect of any Specified Ancillary Obligation shall be due in a
currency other than Dollars and/or at a place of payment other than New York, Chicago or any other Eurocurrency Payment Office and if, by reason of any Change in Law, disruption of currency or foreign exchange markets, war or civil disturbance or
other event, payment of such Specified Ancillary Obligation in such currency or at such place of payment shall be impossible or, in the reasonable judgment of any applicable Lender (or any of its Affiliates), disadvantageous to such applicable
Lender (or any of its Affiliates) in any material respect, then, at the election of such applicable Lender, the Borrower shall make payment of such Specified Ancillary Obligation in Dollars (based upon the applicable Equivalent Amount in effect on
the date of payment) and/or in New York, Chicago or such other Eurocurrency Payment Office as is designated by such applicable Lender (or its Affiliate) and, as a separate and independent obligation, shall indemnify such applicable Lender (and any
of its Affiliates) against any losses or reasonable out-of-pocket expenses that it shall sustain as a result of such alternative payment.
Upon payment by the Borrower of any sums as provided above, all rights of the Borrower against any Subsidiary arising as a result thereof by
way of right of subrogation or otherwise shall in all respects be subordinated and junior in right of payment to the prior indefeasible payment in full in cash of all the Specified Ancillary Obligations owed by such Subsidiary to the applicable
Lender (or its applicable Affiliates).
64
Nothing shall discharge or satisfy the liability of the Borrower hereunder except the full
performance and payment in cash of the Obligations (other than contingent indemnity obligations not yet due and payable).
[Signature Pages
Follow]
65
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
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LAM RESEARCH CORPORATION, |
as the Borrower |
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JPMORGAN CHASE BANK, N.A., |
individually as a Lender, as the Swingline |
Lender and as Administrative Agent |
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GOLDMAN SACHS BANK USA, individually as a Lender |
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EXHIBIT A
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the Assignment and Assumption) is dated as of the Effective Date set forth below and is
entered into by and between [the] [each]1 Assignor identified in item 1 below ([the] [each, an] Assignor) and [the]
[each]2 Assignee identified in item 2 below ([the] [each, an] Assignee). [It is understood and agreed that rights and obligations of [the Assignors] [the Assignees]3 hereunder are several and not joint.]4 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement
identified below, receipt of a copy of which is hereby acknowledged by [the] [each] Assignee. The Standard Terms and Conditions set forth in Annex I attached hereto are hereby agreed to and incorporated herein by reference and made a part of
this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the] [each] Assignor hereby irrevocably
sells and assigns to [the Assignee] [the respective Assignees], and [the] [each] Assignee hereby irrevocably purchases and assumes from [the Assignor] [the respective Assignors], subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignors] [the respective Assignors] rights and obligations in [its capacity as a Lender] [their
respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and
obligations of [the Assignor] [the respective Assignors] under the respective facilities identified below (including without limitation any letters of credit, guarantees, and swingline loans included in such facilities) and (ii) to the extent
permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)] [the respective Assignors (in their respective capacities as Lenders)] against any Person, whether
known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including,
but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned by [the] [any] Assignor to [the] [any] Assignee pursuant to
clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as [the] [an] Assigned Interest). Each such sale and
assignment is without recourse to [the] [any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the] [any] Assignor.
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Assignor[s]: |
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Assignee[s]: |
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[and is an [Affiliate] [Approved Fund] of [identify Lender]5] |
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Borrower(s): |
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Lam Research Corporation |
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Administrative Agent: |
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JPMorgan Chase Bank, N.A., as the administrative agent under the Credit Agreement |
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Credit Agreement: |
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The Amended and Restated Credit Agreement, dated as of November 10, 2015 among Lam Research Corporation, the Lenders parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and the other agents parties thereto (as
further amended, the Credit Agreement) |
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1 |
For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose
the second bracketed language. |
2 |
For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the
second bracketed language. |
4 |
Include bracketed language if there are either multiple Assignors or multiple Assignees. |
A-1
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Assignor[s]6 |
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Aggregate Amount of Commitment/Loans for all Lenders8 |
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Amount of Commitment/ Loans Assigned |
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Percentage Assigned of Commitment/Loans9 |
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6 |
List each Assignor, as appropriate. |
7 |
List each Assignee, as appropriate. |
8 |
Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. |
9 |
Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. |
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To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be determined as of the Trade Date. |
A-2
Effective Date: [ ],
20[ ] [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
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ASSIGNOR[S]11 |
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[NAME OF ASSIGNOR] |
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By: |
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ASSIGNEE[S]12 |
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[NAME OF ASSIGNEE] |
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Add additional signature blocks as needed. |
12 |
Add additional signature blocks as needed. |
A-3
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Consented to and Accepted: |
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JPMORGAN CHASE BANK, N.A., |
Administrative Agent and Issuing Bank and Swingline Lender |
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By: |
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[Consented to:]13 |
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LAM RESEARCH CORPORATION |
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To be added only if the consent of the Borrower is required by the terms of the Credit Agreement. |
A-4
ANNEX I
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor[s]. [The] [Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the]
[the relevant] Assigned Interest, (ii) [the] [such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is not a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations
under any Loan Document.
1.2 Assignee[s]. [The] [Each] Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under Section 9.04 of the Credit Agreement (subject to
such consents, if any, as may be required thereunder), (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire [the] [the relevant] Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the] [the relevant] Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the] [the relevant] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the] [the relevant]
Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as
applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the] [the relevant] Assigned Interest on the basis of which
it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender, and (vi) if it is a Foreign Lender, attached to the Assignment and Assumption is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the] [such] Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, [the] [any] Assignor or
any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance
with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2.
Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the] [each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the] [the relevant] Assignor
for amounts which have accrued to but excluding the Effective Date and to [the] [the relevant] Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the foregoing, the Administrative Agent shall make all payments
of interest, fees or other amounts paid or payable in kind from and after the Effective Date to [the] [the relevant] Assignee.
3.
General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of
counterparts, which together shall constitute one instrument. Acceptance and adoption of the terms of this Assignment and Assumption by [the] [the relevant] Assignee and [the] [the relevant] Assignor by Electronic Signature or delivery of an
executed counterpart of a signature page of this Assignment and Assumption by any Electronic System shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.
Annex I to Exhibit A
EXHIBIT B
[RESERVED]
B-1
EXHIBIT C
FORM OF INCREASING LENDER SUPPLEMENT
INCREASING LENDER SUPPLEMENT, dated [ ], 20[ ]
(this Supplement), by and among each of the signatories hereto, to the Amended and Restated Credit Agreement, dated as of November 10, 2015 (as amended, restated, amended and restated, supplemented or otherwise modified from
time to time, the Credit Agreement), among Lam Research Corporation (the Borrower), the Lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the Administrative
Agent).
W I T N E S S E T H
WHEREAS, pursuant to Section 2.20 of the Credit Agreement, the Borrower has the right, subject to the terms and conditions
thereof, to effectuate from time to time an increase in the Aggregate Commitment and/or one or more tranches of Incremental Term Loans under the Credit Agreement by requesting one or more Lenders to increase the amount of its Commitment and/or to
participate in such a tranche;
WHEREAS, the Borrower has given notice to the Administrative Agent of its intention to [increase the
Aggregate Commitment] [and] [enter into a tranche of Incremental Term Loans] pursuant to such Section 2.20; and
WHEREAS,
pursuant to Section 2.20 of the Credit Agreement, the undersigned Increasing Lender now desires to [increase the amount of its Commitment] [and] [participate in a tranche of Incremental Term Loans] under the Credit Agreement by executing
and delivering to the Borrower and the Administrative Agent this Supplement;
NOW, THEREFORE, each of the parties hereto hereby agrees as
follows:
1. The undersigned Increasing Lender agrees, subject to the terms and conditions of the Credit Agreement, that on the date of
this Supplement it shall [have its Commitment increased by $[ ], thereby making the aggregate amount of its total Commitments equal to $[ ]] [and]
[participate in a tranche of Incremental Term Loans with a commitment amount equal to $[ ] with respect thereto].
2. The Borrower hereby represents and warrants that (a) the representations and warranties of the Borrower set forth in the Credit
Agreement (excluding the representations set forth in Sections 3.04(b) and 3.06(a)) are true and correct and (b) no Default or Event of Default has occurred and is continuing on and as of the date hereof.
3. Terms defined in the Credit Agreement shall have their defined meanings when used herein.
4. This Supplement shall be governed by, and construed in accordance with, the laws of the State of New York.
5. This Supplement 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 one and the same document.
[Remainder of Page Intentionally Left Blank]
C-1
IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be executed and
delivered by a duly authorized officer on the date first above written.
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[INSERT NAME OF INCREASING LENDER] |
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Accepted and agreed to as of the date first written above: |
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LAM RESEARCH CORPORATION |
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By: |
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Acknowledged as of the date first written above: |
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JPMORGAN CHASE BANK, N.A. as Administrative Agent |
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C-2
EXHIBIT D
FORM OF AUGMENTING LENDER SUPPLEMENT
AUGMENTING LENDER SUPPLEMENT, dated [ ],
20[ ] (this Supplement), by and among each of the signatories hereto, to the Amended and Restated Credit Agreement, dated as of November 10, 2015 (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time, the Credit Agreement), among Lam Research Corporation (the Borrower), the Lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in
such capacity, the Administrative Agent).
W I T N E S S E T H
WHEREAS, the Credit Agreement provides in Section 2.20 thereof that any bank, financial institution or other entity may [extend
Commitments] [and] [participate in tranches of Incremental Term Loans] under the Credit Agreement subject to the approval of the Borrower and the Administrative Agent, by executing and delivering to the Borrower and the Administrative Agent a
supplement to the Credit Agreement in substantially the form of this Supplement; and
WHEREAS, the undersigned Augmenting Lender is not
currently a party to the Credit Agreement, but now desires to become a party thereto;
NOW, THEREFORE, each of the parties hereto hereby
agrees as follows:
1. The undersigned Augmenting Lender agrees to be bound by the provisions of the Credit Agreement and agrees that it
shall, on the date of this Supplement, become a Lender for all purposes of the Credit Agreement to the same extent as if a party thereto, with a [Commitment with respect to Revolving Loans of $[ ]]
[and] [a commitment with respect to Incremental Term Loans of $[ ]].
2. The undersigned
Augmenting Lender (a) represents and warrants that it is legally authorized to enter into this Supplement; (b) confirms that it has received a copy of the Credit Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 5.01 thereof, as applicable, and has reviewed such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Supplement; (c) agrees
that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not
taking action under the Credit Agreement or any other instrument or document furnished pursuant hereto or thereto; (d) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement or any other instrument or document furnished pursuant hereto or thereto as are delegated to the Administrative Agent by the terms thereof, together with such powers as are incidental thereto; (e) agrees
that it will be bound by the provisions of the Credit Agreement and will perform in accordance with its terms all the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender; and (f) if it is a
Foreign Lender, deliver any documentation required to be delivered by it pursuant to the terms of the Credit Agreement.
3. The
undersigneds address for notices for the purposes of the Credit Agreement is as follows: [ ].
4. The Borrower hereby represents and warrants that (a) the representations and warranties of the Borrower set forth in the Credit
Agreement (excluding the representations set forth in Sections 3.04(b) and 3.06(a)) are true and correct and (b) no Default or Event of Default has occurred and is continuing on and as of the date hereof.
5. Terms defined in the Credit Agreement shall have their defined meanings when used herein.
6. This Supplement shall be governed by, and construed in accordance with, the laws of the State of New York.
D-1
7. This Supplement 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 one and the same document.
[Remainder of Page Intentionally Left Blank]
D-2
IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be executed and
delivered by a duly authorized officer on the date first above written.
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[INSERT NAME OF AUGMENTING LENDER] |
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Accepted and agreed to as of the date first written above: |
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LAM RESEARCH CORPORATION |
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Acknowledged as of the date first written above: |
JPMORGAN CHASE BANK, N.A. as |
Administrative Agent |
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D-3
EXHIBIT E
[RESERVED]
E-1
EXHIBIT F
FORM OF
SUBSIDIARY
GUARANTY
GUARANTY
THIS
GUARANTY (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this Guaranty) is made as of [ ],
20[ ], by and among each of the undersigned (the Initial Guarantors and along with any additional Subsidiaries of the Borrower which become parties to this Guaranty by executing a supplement hereto in the
form attached as Annex I, each, a Guarantor and collectively, the Guarantors) in favor of the Administrative Agent, for the ratable benefit of the Holders of Guaranteed Obligations (as defined below),
under the Credit Agreement referred to below.
W I T N E S S E T H
WHEREAS, Lam Research Corporation, a Delaware corporation (the Borrower), the institutions from time to time parties
thereto as lenders (the Lenders), and JPMorgan Chase Bank, N.A., in its capacity as administrative agent (the Administrative Agent), have entered into a certain Amended and Restated Credit Agreement, dated as of
November 10, 2015 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Credit Agreement), providing, subject to the terms and conditions thereof, for
extensions of credit and other financial accommodations to be made by the Lenders to the Borrower;
WHEREAS, it is a condition precedent
to the extensions of credit by the Lenders under the Credit Agreement that each of the Guarantors (constituting all of the Subsidiaries of the Borrower required to execute this Guaranty pursuant to Section 5.09 of the Credit Agreement)
execute and deliver this Guaranty, whereby each of the Guarantors shall guarantee the payment when due of all Obligations; and
WHEREAS,
in consideration of the direct and indirect financial and other support that the Borrower has provided, and such direct and indirect financial and other support as the Borrower may in the future provide, to the Guarantors, and in order to induce the
Lenders and the Administrative Agent to enter into the Credit Agreement, each of the Guarantors is willing to guarantee the Obligations of the Borrower;
NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms defined in the Credit
Agreement and not otherwise defined herein have, as used herein, the respective meanings provided for therein.
SECTION 2.
Representations, Warranties and Covenants. Each of the Guarantors represents and warrants (which representations and warranties shall be deemed to have been renewed at the time of the making, conversion or continuation of any Loan or
issuance, amendment, renewal or extension of any Letter of Credit) that:
(A) It is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and, except where the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required.
(B) This Guaranty and the obligations contemplated hereunder are within its organizational powers and have been duly authorized
by all necessary organizational actions and, if required, actions by equity holders. This Guaranty has been duly executed and delivered by it and constitutes a legal, valid and binding obligation of such Guarantor, respectively, enforceable against
such Guarantor 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.
(C) The execution and delivery by it of this Guaranty and the consummation
by it of the transactions contemplated hereby (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and
effect, (b) will not violate any applicable law or regulation or its charter, by-laws or other organizational documents or any order of any Governmental Authority, (c) will not violate or result in a default under any material indenture or
other material agreement or material instrument binding upon it or its assets, or give rise to a right thereunder to require any payment to be made by it, and (d) will not result in the creation or imposition of any Lien on any of its assets.
F-1
In addition to the foregoing, each of the Guarantors covenants that, until the payment in full of
the Guaranteed Obligations in cash (other than contingent indemnity obligations not yet due and payable), the termination, expiry or cash collateralization of all Letters of Credit and the termination or expiry of any and all commitments by the
Lenders to make Loans and other extensions of credit under the Credit Agreement (the collective occurrence of which is referred to herein as Payment and Termination in Full) it will, and, if necessary, will enable the Borrower to,
fully comply with those covenants and agreements of the Borrower applicable to such Guarantor set forth in the Credit Agreement.
SECTION
3. The Guaranty. Each of the Guarantors hereby unconditionally guarantees, as primary obligor and not as surety merely, jointly with the other Guarantors and severally, the full and punctual payment and performance when due (whether at stated
maturity, upon acceleration or otherwise) of the Obligations (other than Obligations arising or incurred to the Lenders or any of their Affiliates under any Swap Agreement or any Banking Services Agreement), including, without limitation,
(i) the principal of and interest on each Loan made to the Borrower pursuant to the Credit Agreement, (ii) any obligations of the Borrower to reimburse LC Disbursements (Reimbursement Obligations) and (iii) all
other amounts payable by the Borrower or any of its Subsidiaries under the Credit Agreement and the other Loan Documents (other than any Swap Agreement or any Banking Services Agreement) (all of the foregoing being referred to collectively as the
Guaranteed Obligations and the holders from time to time of the Guaranteed Obligations being referred to collectively as the Holders of Guaranteed Obligations). Upon (x) the failure by the Borrower or any
of its Affiliates, as applicable, to pay punctually any such amount or perform such obligation, and (y) such failure continuing beyond any applicable grace or notice and cure period to the extent applicable, each of the Guarantors agrees that
it shall forthwith on demand pay such amount or perform such obligation at the place and in the manner specified in the Credit Agreement or the relevant Loan Document, as the case may be. Each of the Guarantors hereby agrees that this Guaranty is an
absolute, irrevocable and unconditional guaranty of payment and is not a guaranty of collection. Each of the Guarantors hereby irrevocably and unconditionally agrees, jointly and severally with the other Guarantors, that if any obligation guaranteed
by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify the Holders of Guaranteed Obligations immediately on demand against any cost, loss or liability they incur as a result of the
Borrower or any of its Affiliates not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by such Guarantor under this Guaranty on the date when it would have been due (but so that the amount
payable by each Guarantor under this indemnity will not exceed the amount which it would have had to pay under this Guaranty if the amount claimed had been recoverable on the basis of a guaranty).
SECTION 4. Guaranty Unconditional. The obligations of each of the Guarantors hereunder shall be unconditional and absolute and, without
limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by:
(A) any extension,
renewal, settlement, indulgence, compromise, waiver or release of or with respect to the Guaranteed Obligations or any part thereof or any agreement relating thereto, or with respect to any obligation of any other guarantor of any of the Guaranteed
Obligations, whether (in any such case) by operation of law or otherwise, or any failure or omission to enforce any right, power or remedy with respect to the Guaranteed Obligations or any part thereof or any agreement relating thereto, or with
respect to any obligation of any other guarantor of any of the Guaranteed Obligations;
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(B) any modification or amendment of or supplement to the Credit Agreement or any
other Loan Document, including, without limitation, any such amendment which may increase the amount of, or the interest rates applicable to, any of the Obligations guaranteed hereby;
(C) any release, surrender, compromise, settlement, waiver, subordination or modification, with or without consideration, of
any collateral securing the Guaranteed Obligations or any part thereof, any other guaranties with respect to the Guaranteed Obligations or any part thereof, or any other obligation of any person or entity with respect to the Guaranteed Obligations
or any part thereof, or any nonperfection or invalidity of any direct or indirect security for the Guaranteed Obligations;
(D) any change in the corporate, partnership or other existence, structure or ownership of the Borrower or any other guarantor
of any of the Guaranteed Obligations, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Borrower or any other guarantor of the Guaranteed Obligations, or any of their respective assets or any resulting release
or discharge of any obligation of the Borrower or any other guarantor of any of the Guaranteed Obligations;
(E) the
existence of any claim, setoff or other rights which the Guarantors may have at any time against the Borrower, any other guarantor of any of the Guaranteed Obligations, the Administrative Agent, any Holder of Guaranteed Obligations or any other
Person, whether in connection herewith or in connection with any unrelated transactions; provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim;
(F) the enforceability or validity of the Guaranteed Obligations or any part thereof or the genuineness, enforceability or
validity of any agreement relating thereto or with respect to any collateral securing the Guaranteed Obligations or any part thereof, or any other invalidity or unenforceability relating to or against the Borrower or any other guarantor of any of
the Guaranteed Obligations, for any reason related to the Credit Agreement, any other Loan Document, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by the Borrower or any other
guarantor of the Guaranteed Obligations, of any of the Guaranteed Obligations or otherwise affecting any term of any of the Guaranteed Obligations;
(G) the failure of the Administrative Agent to take any steps to perfect and maintain any security interest in, or to preserve
any rights to, any security or collateral for the Guaranteed Obligations, if any;
(H) the election by, or on behalf of,
any one or more of the Holders of Guaranteed Obligations, in any proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. 101 et seq.) (the Bankruptcy Code), of the application of
Section 1111(b)(2) of the Bankruptcy Code;
(I) any borrowing or grant of a security interest by the Borrower, as
debtor-in-possession, under Section 364 of the Bankruptcy Code;
(J) the disallowance, under Section 502 of the
Bankruptcy Code, of all or any portion of the claims of the Holders of Guaranteed Obligations or the Administrative Agent for repayment of all or any part of the Guaranteed Obligations;
(K) the failure of any other guarantor to sign or become party to this Guaranty or any amendment, change, or reaffirmation
hereof; or
(L) any other act or omission to act or delay of any kind by the Borrower, any other guarantor of the
Guaranteed Obligations, the Administrative Agent, any Holder of Guaranteed Obligations or any other Person or any other circumstance whatsoever which might, but for the provisions of this Section 4, constitute a legal or equitable
discharge of any Guarantors obligations hereunder except as provided in Section 5.
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SECTION 5. Continuing Guarantee; Discharge Only Upon Payment and Termination In Full;
Reinstatement In Certain Circumstances. Each of the Guarantors obligations hereunder shall constitute a continuing and irrevocable guarantee of all Guaranteed Obligations now or hereafter existing and shall remain in full force and effect
until Payment and Termination in Full has occurred. If at any time any payment of the principal of or interest on any Loan, any Reimbursement Obligation or any other amount payable by the Borrower or any other party under the Credit Agreement or any
other Loan Document (including a payment effected through exercise of a right of setoff) is rescinded, or is or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise (including pursuant
to any settlement entered into by a Holder of Guaranteed Obligations in its discretion), each of the Guarantors obligations hereunder with respect to such payment shall be reinstated as though such payment had been due but not made at such
time. The parties hereto acknowledge and agree that each of the Guaranteed Obligations shall be due and payable in the same currency as such Guaranteed Obligation is denominated, but if currency control or exchange regulations are imposed in the
country which issues such currency with the result that such currency (the Original Currency) no longer exists or the relevant Guarantor is not able to make payment in such Original Currency, then all payments to be made by such
Guarantor hereunder in such currency shall instead be made when due in Dollars in an amount equal to the Dollar Amount (as of the date of payment) of such payment due, it being the intention of the parties hereto that each Guarantor takes all risks
of the imposition of any such currency control or exchange regulations.
SECTION 6. General Waivers; Additional Waivers.
(A) General Waivers. Each of the Guarantors irrevocably waives acceptance hereof, presentment, demand or action on
delinquency, protest, the benefit of any statutes of limitations and, to the fullest extent permitted by law, any notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against the Borrower, any
other guarantor of the Guaranteed Obligations, or any other Person.
(B) Additional Waivers. Notwithstanding
anything herein to the contrary, each of the Guarantors hereby absolutely, unconditionally, knowingly, and expressly waives:
(i) any right it may have to revoke this Guaranty as to future indebtedness or notice of acceptance hereof;
(ii) (a) notice of acceptance hereof; (b) notice of any loans or other financial accommodations made or extended
under the Loan Documents or the creation or existence of any Guaranteed Obligations; (c) notice of the amount of the Guaranteed Obligations, subject, however, to each Guarantors right to make inquiry of Administrative Agent and Holders of
Guaranteed Obligations to ascertain the amount of the Guaranteed Obligations at any reasonable time; (d) notice of any adverse change in the financial condition of the Borrower or of any other fact that might increase such Guarantors risk
hereunder; (e) notice of presentment for payment, demand, protest, and notice thereof as to any instruments among the Loan Documents; (f) notice of any Default or Event of Default; and (g) all other notices (except if such notice is
specifically required to be given to such Guarantor hereunder or under the Loan Documents) and demands to which each Guarantor might otherwise be entitled;
(iii) its right, if any, to require the Administrative Agent and the other Holders of Guaranteed Obligations to institute suit
against, or to exhaust any rights and remedies which the Administrative Agent and the other Holders of Guaranteed Obligations has or may have against, the other Guarantors or any third party, or against any collateral provided by the other
Guarantors, or any third party; and each Guarantor further waives any defense arising by reason of any disability or other defense (other than the defense that the Guaranteed Obligations shall have been fully and finally performed and indefeasibly
paid) of the other Guarantors or by reason of the cessation from any cause whatsoever of the liability of the other Guarantors in respect thereof;
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(iv) (a) any rights to assert against the Administrative Agent and the other
Holders of Guaranteed Obligations any defense (legal or equitable), set-off, counterclaim, or claim which such Guarantor may now or at any time hereafter have against the other Guarantors or any other party liable to the Administrative Agent and the
other Holders of Guaranteed Obligations (other than Payment and Termination in Full); (b) any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection,
sufficiency, validity, or enforceability of the Guaranteed Obligations or any security therefor; (c) any defense such Guarantor has to performance hereunder, and any right such Guarantor has to be exonerated, arising by reason of: the
impairment or suspension of the Administrative Agents and the other Holders of Guaranteed Obligations rights or remedies against the other Guarantors; the alteration by the Administrative Agent and the other Holders of Guaranteed
Obligations of the Guaranteed Obligations; any discharge of the other Guarantors obligations to the Administrative Agent and the other Holders of Guaranteed Obligations by operation of law as a result of the Administrative Agents and the
other Holders of Guaranteed Obligations intervention or omission; or the acceptance by the Administrative Agent and the other Holders of Guaranteed Obligations of anything in partial satisfaction of the Guaranteed Obligations; and (d) the
benefit of any statute of limitations affecting such Guarantors liability hereunder or the enforcement thereof, and any act which shall defer or delay the operation of any statute of limitations applicable to the Guaranteed Obligations shall
similarly operate to defer or delay the operation of such statute of limitations applicable to such Guarantors liability hereunder; and
(v) any defense arising by reason of or deriving from (a) any claim or defense based upon an election of remedies by the
Administrative Agent and the other Holders of Guaranteed Obligations; or (b) any election by the Administrative Agent and the other Holders of Guaranteed Obligations under Section 1111(b) of Title 11 of the United States Code entitled
Bankruptcy, as now and hereafter in effect (or any successor statute), to limit the amount of, or any collateral securing, its claim against the Guarantors.
SECTION 7. Subordination of Subrogation; Subordination of Intercompany Indebtedness.
(A) Subordination of Subrogation. Until Payment and Termination in Full has occurred, the Guarantors (i) shall have
no right of subrogation with respect to such Guaranteed Obligations, (ii) waive any right to enforce any remedy which the Holders of Guaranteed Obligations, the Issuing Bank or the Administrative Agent now have or may hereafter have against the
Borrower, any endorser or any guarantor of all or any part of the Guaranteed Obligations or any other Person, and (iii) waive any benefit of, and any right to participate in, any security or collateral given to the Holders of Guaranteed
Obligations, the Issuing Bank and the Administrative Agent to secure the payment or performance of all or any part of the Guaranteed Obligations or any other liability of the Borrower to the Holders of Guaranteed Obligations or the Issuing Bank.
Should any Guarantor have the right, notwithstanding the foregoing, to exercise its subrogation rights, each Guarantor hereby expressly and irrevocably (A) subordinates any and all rights at law or in equity to subrogation, reimbursement,
exoneration, contribution, indemnification or set off that such Guarantor may have to the indefeasible payment in full in cash of the Guaranteed Obligations until Payment and Termination in Full has occurred and (B) waives any and all defenses
available to a surety, guarantor or accommodation co-obligor until Payment and Termination in Full has occurred. Each Guarantor acknowledges and agrees that this subordination is intended to benefit the Administrative Agent and the other Holders of
Guaranteed Obligations and shall not limit or otherwise affect such Guarantors liability hereunder or the enforceability of this Guaranty, and that the Administrative Agent, the other Holders of Guaranteed Obligations and their respective
successors and assigns are intended third party beneficiaries of the waivers and agreements set forth in this Section 7(A).
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(B) Subordination of Intercompany Indebtedness. Each Guarantor agrees that
any and all claims of such Guarantor against the Borrower or any other Guarantor hereunder (each, an Obligor) with respect to any Intercompany Indebtedness (as hereinafter defined), any endorser, obligor or any other
guarantor of all or any part of the Guaranteed Obligations, or against any of its properties shall be subordinate and subject in right of payment to the prior payment, in full and in cash, of all Guaranteed Obligations; provided that, as long
as no Event of Default has occurred and is continuing and the Administrative Agent instructs such Guarantor otherwise, such Guarantor may receive payments of principal and interest from any Obligor with respect to Intercompany Indebtedness.
Notwithstanding any right of any Guarantor to ask, demand, sue for, take or receive any payment from any Obligor, all rights, liens and security interests of such Guarantor, whether now or hereafter arising and howsoever existing, in any assets of
any other Obligor shall be and are subordinated to the rights of the Holders of Guaranteed Obligations and the Administrative Agent in those assets. No Guarantor shall have any right to possession of any such asset or to foreclose upon any such
asset, whether by judicial action or otherwise, unless and until Payment and Termination in Full has occurred and all financing arrangements pursuant to any Loan Document have been terminated. If all or any part of the assets of any Obligor, or the
proceeds thereof, are subject to any distribution, division or application to the creditors of such Obligor, whether partial or complete, voluntary or involuntary, and whether by reason of liquidation, bankruptcy, arrangement, receivership,
assignment for the benefit of creditors or any other action or proceeding, or if the business of any such Obligor is dissolved or if substantially all of the assets of any such Obligor are sold, then, and in any such event (such events being herein
referred to as an Insolvency Event), any payment or distribution of any kind or character, either in cash, securities or other property, which shall be payable or deliverable upon or with respect to any indebtedness of any Obligor
to any Guarantor (Intercompany Indebtedness) shall be paid or delivered directly to the Administrative Agent for application on any of the Guaranteed Obligations, due or to become due, until Payment and Termination in Full has
occurred. Should any payment, distribution, security or instrument or proceeds thereof be received by the applicable Guarantor upon or with respect to the Intercompany Indebtedness after any Insolvency Event and prior to Payment and Termination in
Full and the termination of all financing arrangements pursuant to any Loan Document among the Borrower and the Holders of Guaranteed Obligations, such Guarantor shall receive and hold the same in trust, as trustee, for the benefit of the Holders of
Guaranteed Obligations and shall forthwith deliver the same to the Administrative Agent, for the benefit of the Holders of Guaranteed Obligations, in precisely the form received (except for the endorsement or assignment of the Guarantor where
necessary), for application to any of the Guaranteed Obligations, due or not due, and, until so delivered, the same shall be held in trust by the Guarantor as the property of the Holders of Guaranteed Obligations. If any such Guarantor fails to make
any such endorsement or assignment to the Administrative Agent, the Administrative Agent or any of its officers or employees is irrevocably authorized to make the same. Each Guarantor agrees that until Payment and Termination in Full has occurred,
no Guarantor will assign or transfer to any Person (other than the Administrative Agent) any claim any such Guarantor has or may have against any Obligor.
SECTION 8. Contribution with Respect to Guaranteed Obligations.
(A) To the extent that any Guarantor shall make a payment under this Guaranty (a Guarantor Payment) which,
taking into account all other Guarantor Payments then previously or concurrently made by any other Guarantor, exceeds the amount which otherwise would have been paid by or attributable to such Guarantor if each Guarantor had paid the aggregate
Guaranteed Obligations satisfied by such Guarantor Payment in the same proportion as such Guarantors Allocable Amount (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable
Amounts of each of the Guarantors as determined immediately prior to the making of such Guarantor Payment, then, following Payment and Termination in Full, such Guarantor shall be entitled to receive contribution and indemnification payments from,
and be reimbursed by, each other Guarantor for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.
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(B) As of any date of determination, the Allocable Amount of
any Guarantor shall be equal to the excess of the fair saleable value of the property of such Guarantor over the total liabilities of such Guarantor (including the maximum amount reasonably expected to become due in respect of contingent
liabilities, calculated, without duplication, assuming each other Guarantor that is also liable for such contingent liability pays its ratable share thereof), giving effect to all payments made by other Guarantors as of such date in a manner to
maximize the amount of such contributions.
(C) This Section 8 is intended only to define the relative rights
of the Guarantors, and nothing set forth in this Section 8 is intended to or shall impair the obligations of the Guarantors, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with
the terms of this Guaranty.
(D) The parties hereto acknowledge that the rights of contribution and indemnification
hereunder shall constitute assets of the Guarantor or Guarantors to which such contribution and indemnification is owing.
(E) The rights of the indemnifying Guarantors against other Guarantors under this Section 8 shall be exercisable
upon Payment and Termination in Full.
SECTION 9. Limitation of Guaranty. Notwithstanding any other provision of this Guaranty, the
amount guaranteed by each Guarantor hereunder shall be limited to the extent, if any, required so that its obligations hereunder shall not be subject to avoidance under Section 548 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar federal or state statute or common law. In determining the limitations, if any, on the amount of any Guarantors obligations hereunder pursuant to the preceding sentence, it
is the intention of the parties hereto that any rights of subrogation, indemnification or contribution which such Guarantor may have under this Guaranty, any other agreement or applicable law shall be taken into account.
SECTION 10. Stay of Acceleration. If acceleration of the time for payment of any amount payable by the Borrower under the Credit
Agreement or any other Loan Document is stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all such amounts otherwise subject to acceleration under the terms of the Credit Agreement or any other Loan Document shall nonetheless
be payable by each of the Guarantors hereunder forthwith on demand by the Administrative Agent.
SECTION 11. Notices. All notices,
requests and other communications to any party hereunder shall be given in the manner prescribed in Article IX of the Credit Agreement with respect to the Administrative Agent at its notice address therein and with respect to any Guarantor,
in care of the Borrower at the address of the Borrower set forth in the Credit Agreement or such other address or telecopy number as such party may hereafter specify for such purpose by notice to the Administrative Agent in accordance with the
provisions of such Article IX.
SECTION 12. No Waivers. No failure or delay by the Administrative Agent or any other Holder
of Guaranteed Obligations in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right,
power or privilege. The rights and remedies provided in this Guaranty, the Credit Agreement and the other Loan Documents shall be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 13. Successors and Assigns. This Guaranty is for the benefit of the Administrative Agent and the other Holders of Guaranteed
Obligations and their respective successors and permitted assigns; provided, that no Guarantor shall have any right to assign its rights or obligations hereunder without the consent of all of the Lenders, and any such assignment in violation of this
Section 13 shall be null and void; and in the event of an assignment of any amounts payable under the Credit Agreement or the other Loan Documents in accordance with
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the respective terms thereof, the rights hereunder, to the extent applicable to the indebtedness so assigned, may be transferred with such indebtedness. This Guaranty shall be binding upon each
of the Guarantors and their respective successors and assigns.
SECTION 14. Changes in Writing. Other than in connection with the
addition of additional Subsidiaries, which become parties hereto by executing a supplement hereto in the form attached as Annex I, neither this Guaranty nor any provision hereof may be changed, waived, discharged or terminated orally, but only in
writing signed by each of the Guarantors and the Administrative Agent.
SECTION 15. GOVERNING LAW. THIS GUARANTY SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 16. CONSENT TO JURISDICTION; JURY TRIAL; SERVICE OF
PROCESS.
(A) CONSENT TO JURISDICTION. EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF
AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY, BOROUGH OF MANHATTAN, AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT
FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH GUARANTOR AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED
IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS GUARANTY SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(B) WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH GUARANTOR HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER
AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
(C) SERVICE OF PROCESS. EACH GUARANTOR IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN
ARTICLE IX OF THE CREDIT AGREEMENT. NOTHING IN THIS GUARANTY OR ANY OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS GUARANTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
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SECTION 17. No Strict Construction. The parties hereto have participated jointly in the
negotiation and drafting of this Guaranty. In the event an ambiguity or question of intent or interpretation arises, this Guaranty shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any provisions of this Guaranty.
SECTION 18. Taxes, Expenses of
Enforcement, Etc.
(A) Taxes.
(i) Any and all payments by or on account of any obligation of any Guarantor hereunder or under any Loan Document shall be made
without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any
such payment by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with
applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Guarantor shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable
to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(ii) The Guarantors shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option
of the Administrative Agent timely reimburse it for, Other Taxes.
(iii) As soon as practicable after any payment of
Indemnified Taxes by any Guarantor to a Governmental Authority pursuant to this Section, such Guarantor shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(iv) The Guarantors shall indemnify each Recipient, within ten days after demand therefor, for the full amount of any
Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to
the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(v) By accepting the benefits hereof, each Lender agrees that it will comply with Section 2.17(f) of the Credit
Agreement.
(B) Expenses of Enforcement, Etc. The Guarantors agree to reimburse the Administrative Agent and the
other Holders of Guaranteed Obligations for any reasonable costs and out-of-pocket expenses (including attorneys fees) paid or incurred by the Administrative Agent or any other Holder of Guaranteed Obligations in connection with the collection
and enforcement of amounts due under this Guaranty.
SECTION 19. Setoff. At any time after all or any part of the Guaranteed
Obligations have become due and payable (by acceleration or otherwise), each Holder of Guaranteed Obligations (including the Administrative Agent) and its Affiliates may, without notice to any Guarantor and regardless of the acceptance of any
security or collateral for the payment hereof, appropriate and apply in accordance with the terms of the Credit
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Agreement toward the payment of all or any part of the Guaranteed Obligations (i) any indebtedness due or to become due from such Holder of Guaranteed Obligations or the Administrative Agent
to any Guarantor, and (ii) any moneys, credits or other property belonging to any Guarantor, at any time held by or coming into the possession of such Holder of Guaranteed Obligations (including the Administrative Agent) or any of their
respective affiliates.
SECTION 20. Financial Information. Each Guarantor hereby assumes responsibility for keeping itself informed
of the financial condition of the Borrower and any and all endorsers and/or other Guarantors of all or any part of the Guaranteed Obligations, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations, or any
part thereof, that diligent inquiry would reveal, and each Guarantor hereby agrees that none of the Holders of Guaranteed Obligations (including the Administrative Agent) shall have any duty to advise such Guarantor of information known to any of
them regarding such condition or any such circumstances. In the event any Holder of Guaranteed Obligations (including the Administrative Agent), in its sole discretion, undertakes at any time or from time to time to provide any such information to a
Guarantor, such Holder of Guaranteed Obligations (including the Administrative Agent) shall be under no obligation (i) to undertake any investigation not a part of its regular business routine, (ii) to disclose any information which such
Holder of Guaranteed Obligations (including the Administrative Agent), pursuant to accepted or reasonable commercial finance or banking practices, wishes to maintain confidential or (iii) to make any other or future disclosures of such
information or any other information to such Guarantor.
SECTION 21. Severability. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Guaranty shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Guaranty.
SECTION 22.
Merger. This Guaranty represents the final agreement of each of the Guarantors with respect to the matters contained herein and may not be contradicted by evidence of prior or contemporaneous agreements, or subsequent oral agreements, between
the Guarantor and any Holder of Guaranteed Obligations (including the Administrative Agent).
SECTION 23. Headings. Section
headings in this Guaranty are for convenience of reference only and shall not govern the interpretation of any provision of this Guaranty.
SECTION 24. Judgment Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due from any
Guarantor hereunder in the currency expressed to be payable herein (the specified currency) into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the specified currency with such other currency at the Administrative Agents main New York City office on the Business Day preceding
that on which final, non-appealable judgment is given. The obligations of each Guarantor in respect of any sum due hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that
on the Business Day following receipt by any Holder of Guaranteed Obligations (including the Administrative Agent), as the case may be, of any sum adjudged to be so due in such other currency such Holder of Guaranteed Obligations (including the
Administrative Agent), as the case may be, may in accordance with normal, reasonable banking procedures purchase the specified currency with such other currency. If the amount of the specified currency so purchased is less than the sum originally
due to such Holder of Guaranteed Obligations (including the Administrative Agent), as the case may be, in the specified currency, each Guarantor agrees, to the fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Holder of Guaranteed Obligations (including the Administrative Agent), as the case may be, against such loss, and if the amount of the specified currency so purchased exceeds (a) the sum
originally due to any Holder of Guaranteed Obligations (including the Administrative Agent), as the case may be, in the specified currency and (b) amounts shared with other Holders of Guaranteed Obligations as a result of allocations of such
excess as a disproportionate payment to such other Holder of Guaranteed Obligations under Section 2.18 of the Credit Agreement, such Holder of Guaranteed Obligations (including the Administrative Agent), as the case may be, agrees, by
accepting the benefits hereof, to remit such excess to such Guarantor.
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SECTION 25. Termination of Guaranty. The obligations of any Guarantor under this Guaranty
shall automatically terminate in accordance with Section 9.14 of the Credit Agreement.
[Remainder of Page
Intentionally Blank]
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IN WITNESS WHEREOF, each of the Initial Guarantors has caused this Guaranty to be duly executed
by its authorized officer as of the day and year first above written.
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Acknowledged and Agreed as of the date first written above: |
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JPMORGAN CHASE BANK, N.A., as Administrative Agent |
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Title: |
F-13
ANNEX I TO GUARANTY
Reference is hereby made to the Guaranty (the Guaranty) made as of
[ ], 20[ ], by and among [GUARANTORS TO COME] (the Initial Guarantors and along with any additional Subsidiaries of the Borrower, which
become parties thereto and together with the undersigned, the Guarantors) in favor of the Administrative Agent, for the ratable benefit of the Holders of Guaranteed Obligations, under the Credit Agreement. Capitalized terms used
herein and not defined herein shall have the meanings given to them in the Guaranty. By its execution below, the undersigned [NAME OF NEW GUARANTOR], a [corporation] [partnership] [limited liability company] (the New Guarantor),
agrees to become, and does hereby become, a Guarantor under the Guaranty and agrees to be bound by such Guaranty as if originally a party thereto. By its execution below, the undersigned represents and warrants as to itself that all of the
representations and warranties contained in Section 2 of the Guaranty are true and correct in all respects as of the date hereof.
IN WITNESS WHEREOF, New Guarantor has executed and delivered this Annex I counterpart to the Guaranty as of this [ ]
day of [ ], 20[ ].
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[NAME OF NEW GUARANTOR] |
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Annex I to Exhibit F
EXHIBIT G-1
FORM OF
U.S. TAX
COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Amended and Restated Credit Agreement, dated as of November 10, 2015 (as amended, restated, amended and
restated, supplemented or otherwise modified from time to time, the Credit Agreement), among Lam Research Corporation (the Borrower), the Lenders party thereto and JPMorgan Chase Bank, N.A., as administrative
agent (in such capacity, the Administrative Agent).
Pursuant to the provisions of Section 2.17 of the
Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a
bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation
related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and
the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall
promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the
calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
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[NAME OF LENDER] |
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By |
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Date: [ ], 20[ ] |
G-1-1
EXHIBIT G-2
FORM OF
U.S. TAX
COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Amended and Restated Credit Agreement, dated as of November 10, 2015 (as amended, restated, amended and
restated, supplemented or otherwise modified from time to time, the Credit Agreement), among Lam Research Corporation (the Borrower), the Lenders party thereto and JPMorgan Chase Bank, N.A., as administrative
agent (in such capacity, the Administrative Agent).
Pursuant to the provisions of Section 2.17 of the
Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of
Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as
described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its
non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in
writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the
two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.
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[NAME OF PARTICIPANT] |
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By |
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Date: [ ], 20[ ] |
G-2-1
EXHIBIT G-3
FORM OF
U.S. TAX
COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Amended and Restated Credit Agreement, dated as of November 10, 2015 (as amended, restated, amended and
restated, supplemented or otherwise modified from time to time, the Credit Agreement), among Lam Research Corporation (the Borrower), the Lenders party thereto and JPMorgan Chase Bank, N.A., as administrative
agent (in such capacity, the Administrative Agent).
Pursuant to the provisions of Section 2.17 of the
Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners
of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or
business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and
(v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its
partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such
partners/members beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall
promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the
undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.
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[NAME OF PARTICIPANT] |
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By |
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Date: [ ], 20[ ] |
G-3-1
EXHIBIT G-4
FORM OF
U.S. TAX
COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Amended and Restated Credit Agreement, dated as of November 10, 2015 (as amended, restated, amended and
restated, supplemented or otherwise modified from time to time, the Credit Agreement), among Lam Research Corporation (the Borrower), the Lenders party thereto and JPMorgan Chase Bank, N.A., as administrative
agent (in such capacity, the Administrative Agent).
Pursuant to the provisions of Section 2.17 of the
Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect
partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to the Credit Agreement or any other Loan Document, neither the undersigned
nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of
its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related
to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the
Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied
by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partners/members beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information
provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly
completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
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[NAME OF LENDER] |
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By |
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Date: [ ], 20[ ] |
G-4-1
EXHIBIT H-1
FORM OF
BORROWING
REQUEST
JPMorgan Chase Bank, N.A.,
as Administrative
Agent for the Lenders referred to below
10 South Dearborn Street
Chicago, Illinois 60603
Attention: April Yebd
Facsimile: 888-292-9533
Email: april.yebd@jpmorgan.com
JPM.agency.cri@jpmorgan.com
With a copy to:
JP Morgan Chase Bank, N.A.,
1301 2nd Avenue, Floor 25
Seattle, Washington 98101
Attention: Timothy Lee
Email: timothy.d.lee@jpmorgan.com
Re: |
Lam Research Corporation |
[Date]
Ladies and Gentlemen:
Reference is hereby made
to the Amended and Restated Credit Agreement, dated as of November 10, 2015 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Credit Agreement), among Lam
Research Corporation (the Borrower), the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the Administrative Agent). Capitalized terms used but
not defined herein shall have the meanings assigned to such terms in the Credit Agreement. The Borrower hereby gives you notice pursuant to Section 2.03 of the Credit Agreement that it requests a Borrowing under the Credit Agreement, and
in that connection the Borrower specifies the following information with respect to such Borrowing requested hereby:
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Aggregate principal amount of Borrowing:1
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2. |
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Date of Borrowing (which shall be a Business Day):
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3. |
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Type of Borrowing (ABR or Eurocurrency):
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4. |
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Interest Period and the last day thereof (if a Eurocurrency Borrowing):2
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Agreed Currency:
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Not less than applicable amounts specified in Section 2.02(c). |
2 |
Which must comply with the definition of Interest Period and end not later than the Maturity Date. |
H-1-1
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6. |
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Location and number of the Borrowers account or any other account agreed upon by the Administrative Agent and the Borrower to which proceeds of Borrowing are to be
disbursed:3 |
[Signature Page Follows]
3 |
Which account must comply with the requirements of Section 2.07. |
H-1-2
The undersigned hereby represents and warrants that the conditions to lending specified in
Section[s] [4.01 and]1 4.02 of the Credit Agreement are satisfied as of the date hereof.
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Very truly yours, |
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LAM RESEARCH CORPORATION, as the
Borrower |
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By: |
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Name: |
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Title: |
1 |
To be included only for Borrowings on the Effective Date. |
H-1-3
EXHIBIT H-2
FORM OF INTEREST ELECTION REQUEST
10
South Dearborn Street
Chicago, Illinois 60603
Attention:
April Yebd
Facsimile: 888-292-9533
Email:
april.yebd@jpmorgan.com
JPM.agency.cri@jpmorgan.com
With a copy to:
JP Morgan Chase Bank, N.A.,
1301 2nd Avenue, Floor 25
Seattle, Washington 98101
Attention: Timothy Lee
Email: timothy.d.lee@jpmorgan.com
Re: |
Lam Research Corporation |
[Date]
Ladies and Gentlemen:
Reference is hereby made
to the Amended and Restated Credit Agreement, dated as of [ ], 2015 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to
time, the Credit Agreement), among Lam Research Corporation (the Borrower), the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the
Administrative Agent). Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Credit Agreement. The Borrower hereby gives you notice pursuant to Section 2.08 of the Credit
Agreement that it requests to [convert][continue] an existing Borrowing under the Credit Agreement, and in that connection the Borrower specifies the following information with respect to such [conversion][continuation] requested hereby:
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List date, Type, principal amount, Agreed Currency and Interest Period (if applicable) of existing Borrowing:
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Aggregate principal amount of resulting Borrowing:
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3. |
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Effective date of interest election (which shall be a Business Day):
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4. |
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Type of Borrowing (ABR or Eurocurrency):
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5. |
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Interest Period and the last day thereof (if a Eurocurrency Borrowing):1
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6. |
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Agreed Currency:
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[Signature Page Follows]
1 |
Which must comply with the definition of Interest Period and end not later than the Maturity Date. |
H-2-1
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Very truly yours, |
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LAM RESEARCH CORPORATION, as
Borrower |
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Name: |
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H-2-2
EXHIBIT I
FORM OF
NOTE
[ ], 2015
FOR VALUE RECEIVED, the undersigned, LAM RESEARCH CORPORATION, a Delaware corporation (the Borrower), HEREBY
UNCONDITIONALLY PROMISES TO PAY to the [NAME OF LENDER] or its registered assigns (the Lender) the aggregate unpaid Dollar Amount of all Loans made by the Lender to the Borrower pursuant to the Credit Agreement (as defined below)
on the Maturity Date or on such earlier date as may be required by the terms of the Credit Agreement. Capitalized terms used herein and not otherwise defined herein are as defined in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount of each Loan made to it from the date of such Loan until such principal
amount is paid in full at a rate or rates per annum determined in accordance with the terms of the Credit Agreement. Interest hereunder is due and payable at such times and on such dates as set forth in the Credit Agreement.
At the time of each Loan, and upon each payment or prepayment of principal of each Loan, the Lender shall make a notation either on the
schedule attached hereto and made a part hereof, or in such Lenders own books and records, in each case specifying the amount of such Loan, the respective Interest Period thereof (in the case of Eurocurrency Loans) or the amount of principal
paid or prepaid with respect to such Loan, as applicable; provided that the failure of the Lender to make any such recordation or notation shall not affect the Obligations of the Borrower hereunder or under the Credit Agreement.
This Note is one of the notes referred to in, and is entitled to the benefits of, that certain Amended and Restated Credit Agreement, dated as
of November 10, 2015 by and among the Borrower, the financial institutions from time to time parties thereto as Lenders and JPMorgan Chase Bank, N.A., as Administrative Agent (as the same may be amended, restated, amended and restated,
supplemented or otherwise modified from time to time, the Credit Agreement). The Credit Agreement, among other things, (i) provides for the making of Loans by the Lender to the Borrower from time to time in an aggregate
amount not to exceed at any time outstanding the Dollar Amount of such Lenders Commitment, the indebtedness of the Borrower resulting from each such Loan to it being evidenced by this Note, and (ii) contains provisions for acceleration of
the maturity hereof upon the happening of certain stated events and also for prepayments of the principal hereof prior to the maturity hereof upon the terms and conditions therein specified.
Demand, presentment, protest and notice of nonpayment and protest are hereby waived by the Borrower.
Whenever in this Note reference is made to the Administrative Agent, the Lender or the Borrower, such reference shall be deemed to include, as
applicable, a reference to their respective successors and assigns. The provisions of this Note shall be binding upon and shall inure to the benefit of said successors and assigns. The Borrowers successors and assigns shall include, without
limitation, a receiver, trustee or debtor in possession of or for the Borrower.
This Note shall be construed in accordance with and
governed by the law of the State of New York.
*****
I-1
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LAM RESEARCH CORPORATION |
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I-2
SCHEDULE OF LOANS AND PAYMENTS OR PREPAYMENTS
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Amount of Loan |
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Interest Period/Rate |
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Amount of Principal Paid or Prepaid |
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Unpaid Principal Balance |
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Notation Made By |
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I-3
SCHEDULE 3.01
SUBSIDIARIES
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Subsidiary |
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Jurisdiction of Organization |
Lam Research Management GmbH |
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Austria |
Lam Research AG |
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Austria |
IPEC International Sales FSC Ltd |
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Barbados |
IPEC FSC Ltd |
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Barbados |
Lam Research Belgium BVBA |
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Belgium |
Lam Research International Holdings Ltd. |
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Cayman Islands |
Lam Research Service Co., Ltd. |
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China |
Lam Research (Shanghai) Co., Ltd. |
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China |
Novellus Systems International Trading Co. Ltd. |
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China |
Novellus Systems Semiconductor Equipment Co., Ltd. |
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China |
Lam Research SAS |
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France |
Lam Research GmbH |
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Germany |
Lam Research (H.K.) Limited |
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Hong Kong |
Novellus Systems Service (Hong Kong) Limited |
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Hong Kong |
Lam Research (India) Private Ltd. |
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India |
Novellus Systems Ireland Ltd. |
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Ireland |
Lam Research (Ireland) Limited |
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Ireland |
Lam Research Services Ltd. |
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Israel |
GaSonics Israel Ltd. |
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Israel |
Lam Research (Israel) Ltd. |
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Israel |
Lam Research S.r.l. |
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Italy |
Lam Research Co., Ltd. |
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Japan |
Lam Research Luxembourg S.à r.l. |
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Luxembourg |
Lam Research Malaysia Sdn. Bhd. |
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Malaysia |
Lam Research IAG International HC B.V. |
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Netherlands |
Novellus Systems International B.V. |
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Netherlands |
Lam Research B.V. |
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Netherlands |
Lam Research International B.V. |
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Netherlands |
Corus Manufacturing Ltd. |
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Republic of Korea |
Lam Research Korea LLC YH |
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Republic of Korea |
Lam Research Korea Limited |
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Republic of Korea |
Novellus Singapore Holdings Pte. Ltd. |
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Singapore |
Novellus Systems International BV, Singapore Branch |
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Singapore |
Lam Research Singapore Pte Ltd |
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Singapore |
Novellus Systems (Schweiz) Holding GmbH |
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Switzerland |
Voumard Machines Co SARL |
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Switzerland |
Lam Research Holding GmbH |
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Switzerland |
Lam Research International Sàrl |
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Switzerland |
Lam Research (H.K.) Limited, Taiwan Branch |
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Taiwan |
Novellus Systems Service (Hong Kong) Limited, Taiwan Branch (in liquidation) |
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Taiwan |
Lam Research Co., Ltd. |
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Taiwan |
Novellus Systems, Inc. |
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U.S. (California) |
Novellus Systems International, LLC |
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U.S. (California) |
Silfex, Inc. |
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U.S. (Delaware) |
Lam Research International Holding Company |
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U.S. (Delaware) |
Novellus International Holdco, LLC. |
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U.S. (Delaware) |
Novellus Development Company, LLC |
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U.S. (Delaware) |
SpeedFam-IPEC International Services, LLC |
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U.S. (Delaware) |
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Subsidiary |
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Jurisdiction of Organization |
Topeka Merger Sub 1, Inc. |
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U.S. (Delaware) |
Topeka Merger Sub 2, Inc. |
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U.S. (Delaware) |
Lam Research Illinois IAG, Inc |
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U.S. (Illinois) |
Lam Research Ltd. |
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United Kingdom |
Metryx, Ltd. |
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United Kingdom |
All Subsidiaries are 100% owned by the Borrower or its other Subsidiaries (excluding directors qualifying shares as
required by law).
As of the date of the Effective Date, no Subsidiary is a Material Domestic Subsidiary.
SCHEDULE 3.06
LITIGATION
Hedgecock
Lawsuit
On October 28, 2015, a complaint was filed in the California Superior Court for Santa Clara County against
KLA-Tencor Corp. (KLA), the members of KLAs board of directors, Lam Research Corporation (Lam Research), Topeka Merger Sub 1, and Topeka Merger Sub 2 (together with Topeka Merger Sub 1 and Lam Research, the Lam
Defendants). The action, captioned Hedgecock v. KLA-Tencor Corp., et al., Case No. 115CV287329, was filed by a purported KLA shareholder as a purported class action on behalf of all KLA shareholders (excluding defendants and their
affiliates) against all defendants. In the complaint, plaintiff alleges that the individual defendants (KLAs board of directors) breached their fiduciary duties by, among other things, causing KLA to agree to a merger transaction with the Lam
Defendants at an unfair price and pursuant to an unfair process, and that the Lam Defendants aided and abetted such breaches. Plaintiff seeks to enjoin or rescind KLAs transaction with the Lam Defendants, as applicable, as well as an award of
damages and attorneys fees, in addition to other relief.
Karr Lawsuit
Also on October 28, 2015, another complaint was filed in the California Superior Court for Santa Clara County against KLA, the members of KLAs board
of directors, Lam Research, Topeka Merger Sub 1, and Topeka Merger Sub 2. This action, captioned Karr v. KLA-Tencor Corporation, et al., Case No. 115CV287331, was filed by one of the same plaintiffs law firms as in the
Hedgecock action on behalf of a different purported KLA shareholder, as a purported class action on behalf of all KLA shareholders (excluding defendants and their affiliates) against all defendants. The allegations in the Karr
complaint are similar to the allegations in the Hedgecock action. In the complaint, plaintiff alleges that the individual defendants (KLAs board of directors) breached their fiduciary duties by, among other things, causing KLA to agree
to a merger transaction with the Lam Defendants at an unfair price and pursuant to an unfair process, and that KLA and the Lam Defendants aided and abetted such breaches. Plaintiff seeks to enjoin or rescind KLAs transaction with the Lam
Defendants, as applicable, as well as an award of attorneys fees, in addition to other relief.
SCHEDULE 6.01
SUBSIDIARY INDEBTEDNESS
1. |
All letters of credit issued by any Subsidiary of the Borrower pursuant to the Continuing Agreement for Standby Letters of Credit dated as of May 6, 2014, between Lam Research Corporation and The Bank of
Tokyo-Mitsubishi UFJ, Ltd. |
2. |
All letters of credit issued by any Subsidiary of the Borrower pursuant to the Continuing Agreement for Commercial & Standby Letters of Credit dated as of October 9, 2015, between Lam Research Corporation
and JPMorgan Chase Bank, N.A. and its subsidiaries and affiliates. |
3. |
Bank Guaranty Facility of KRW 5,000,000,000 between Deutsche Bank AG Seoul Branch and Lam Research Korea LLC YH, dated September 2013. |
4. |
Letter of Credit Facility of USD 89,900 between Deutsche Bank AG New York Branch and Novellus Systems Inc., dated May 26, 2015. |
5. |
Letter of Credit Facility of EUR 86,200 between Deutsche Bank AG New York Branch and Novellus Systems Inc., dated May 20, 2015. |
6. |
Letter of Credit Facility of INR 300,000 between Deutsche Bank AG and Novellus Systems (India) Pvt. Ltd, dated, dated August 22, 2012. |
7. |
Letter agreement dated as of September 6, 2006, between RBS plc (as successor to ABN AMRO Bank N.V.) and the Borrower with respect to a $5,000,000 uncommitted facility to the Borrower and certain of its
Subsidiaries. |
8. |
Continuing Agreement for Standby Letters of Credit dated as of May 10, 2010, between Novellus Systems, Inc. and Deutsche Bank AG New York Branch. |
9. |
All letters of credit issued by any Subsidiary of the Borrower pursuant to the letter agreement dated as of November 19, 2014, between MUFG Union Bank, N.A. and the Borrower with respect to a $10,000,000 letter of
credit facility. |
SCHEDULE 6.02
LIENS
1. |
Liens granted under the Continuing Agreement for Standby Letters of Credit dated as of May 6, 2014, between Lam Research Corporation and The Bank of Tokyo-Mitsubishi UFJ, Ltd. |
2. |
Liens granted under the Continuing Agreement for Commercial & Standby Letters of Credit dated as of October 9, 2015, between Lam Research Corporation and JPMorgan Chase Bank, N.A. and its subsidiaries and
affiliates. |
3. |
Liens granted under the Continuing Agreement for Standby Letters of Credit dated as of May 10, 2010, between Novellus Systems, Inc. and Deutsche Bank AG New York Branch. |
Exhibit 10.2
EXECUTION VERSION
TERM LOAN
AGREEMENT
dated as of
November 10, 2015
among
LAM RESEARCH CORPORATION
the Lenders Party Hereto
JPMORGAN CHASE BANK, N.A.
as
Administrative Agent
GOLDMAN SACHS BANK USA,
BARCLAYS BANK PLC
and
CITIBANK, N.A.
as Syndication
Agents
BANK OF AMERICA, N.A.,
BNP PARIBAS,
DEUTSCHE BANK
SECURITIES INC.,
MIZUHO BANK, LTD.,
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
and
WELLS FARGO BANK, N.A.
as Documentation Agents
and
GOLDMAN SACHS BANK USA,
JPMORGAN
CHASE BANK, N.A.,
BARCLAYS BANK PLC
and
CITIBANK, N.A.
as Joint Bookrunners and Joint Lead Arrangers
TABLE OF CONTENTS
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ARTICLE I |
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DEFINITIONS |
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1 |
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Section 1.01. |
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Defined Terms |
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1 |
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Section 1.02. |
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Classification of Loans and Borrowings |
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17 |
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Section 1.03. |
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Terms Generally |
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17 |
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Section 1.04. |
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Accounting Terms; GAAP; Pro Forma Calculations |
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17 |
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Section 1.05. |
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Status of Obligations |
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18 |
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ARTICLE II |
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THE CREDITS |
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18 |
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Section 2.01. |
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Commitments |
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18 |
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Section 2.02. |
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Loans and Borrowings |
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18 |
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Section 2.03. |
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Requests for Borrowings |
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19 |
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Section 2.04. |
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Funding of Borrowings |
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19 |
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Section 2.05. |
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Interest Elections |
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20 |
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Section 2.06. |
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Voluntary Reduction and Termination of the Commitments and Prepayments |
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21 |
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Section 2.07. |
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Mandatory Termination of Commitments |
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21 |
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Section 2.08. |
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Repayment of Loans; Evidence of Debt |
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22 |
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Section 2.09. |
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Fees |
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23 |
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Section 2.10. |
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Interest |
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23 |
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Section 2.11. |
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Alternate Rate of Interest |
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24 |
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Section 2.12. |
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Increased Costs |
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24 |
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Section 2.13. |
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Break Funding Payments |
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25 |
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Section 2.14. |
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Taxes |
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26 |
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Section 2.15. |
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Payments Generally; Pro Rata Treatment; Sharing of Set-offs |
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28 |
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Section 2.16. |
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Mitigation Obligations; Replacement of Lenders |
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29 |
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Section 2.17. |
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Defaulting Lenders |
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30 |
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ARTICLE III |
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REPRESENTATIONS AND WARRANTIES |
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30 |
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Section 3.01. |
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Organization; Powers; Subsidiaries |
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30 |
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Section 3.02. |
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Authorization; Enforceability |
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31 |
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Section 3.03. |
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Governmental Approvals; No Conflicts |
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31 |
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Section 3.04. |
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Financial Condition; No Material Adverse Change |
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31 |
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Section 3.05. |
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Properties |
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31 |
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Section 3.06. |
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Litigation, Environmental and Labor Matters |
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31 |
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Section 3.07. |
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Compliance with Laws and Agreements |
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32 |
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Section 3.08. |
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Margin Regulations; Investment Company Status |
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32 |
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Section 3.09. |
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Taxes |
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32 |
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Section 3.10. |
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ERISA |
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32 |
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Section 3.11. |
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Disclosure |
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32 |
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Section 3.12. |
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Federal Reserve Regulations |
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32 |
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Section 3.13. |
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Liens |
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33 |
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Section 3.14. |
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No Default |
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33 |
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Section 3.15. |
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Anti-Corruption Laws and Sanctions |
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33 |
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Section 3.16. |
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Solvency |
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33 |
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ARTICLE IV |
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CONDITIONS |
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33 |
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Section 4.01. |
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Effective Date |
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33 |
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Section 4.02. |
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Conditions Precedent to the Closing Date |
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34 |
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Section 4.03. |
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Determinations under Section 4.01 and 4.02 |
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35 |
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ARTICLE V |
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AFFIRMATIVE COVENANTS |
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35 |
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Section 5.01. |
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Financial Statements and Other Information |
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35 |
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Section 5.02. |
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Notices of Material Events |
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36 |
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Section 5.03. |
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Existence; Conduct of Business |
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36 |
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Section 5.04. |
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Payment of Obligations |
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36 |
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Section 5.05. |
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Maintenance of Properties; Insurance |
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37 |
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Section 5.06. |
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Books and Records; Inspection Rights |
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37 |
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Section 5.07. |
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Compliance with Laws and Material Contractual Obligations |
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37 |
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Section 5.08. |
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Use of Proceeds |
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37 |
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Section 5.09. |
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Subsidiary Guaranty |
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37 |
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ARTICLE VI |
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NEGATIVE COVENANTS |
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38 |
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Section 6.01. |
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Subsidiary Indebtedness |
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38 |
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Section 6.02. |
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Liens |
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39 |
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Section 6.03. |
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Fundamental Changes and Asset Sales |
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39 |
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Section 6.04. |
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Transactions with Affiliates |
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40 |
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Section 6.05. |
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Financial Covenants |
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40 |
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ARTICLE VII |
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EVENTS OF DEFAULT |
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40 |
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Section 7.01. |
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Events of Default |
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40 |
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ARTICLE VIII |
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THE ADMINISTRATIVE AGENT |
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42 |
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ARTICLE IX |
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MISCELLANEOUS |
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44 |
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Section 9.01. |
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Notices |
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44 |
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Section 9.02. |
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Waivers; Amendments |
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45 |
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Section 9.03. |
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Expenses; Indemnity; Damage Waiver |
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46 |
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Section 9.04. |
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Successors and Assigns |
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47 |
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Section 9.05. |
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Survival |
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50 |
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Section 9.06. |
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Counterparts; Integration; Effectiveness; Electronic Execution |
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50 |
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Section 9.07. |
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Severability |
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51 |
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Section 9.08. |
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Right of Setoff |
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51 |
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Section 9.09. |
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Governing Law; Jurisdiction; Consent to Service of Process |
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51 |
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Section 9.10. |
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WAIVER OF JURY TRIAL |
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51 |
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Section 9.11. |
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Headings |
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52 |
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Section 9.12. |
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Confidentiality |
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52 |
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Section 9.13. |
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USA PATRIOT Act |
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53 |
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Section 9.14. |
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Releases of Subsidiary Guarantors |
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53 |
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Section 9.15. |
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Interest Rate Limitation |
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53 |
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Section 9.16. |
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No Advisory or Fiduciary Responsibility |
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53 |
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ARTICLE X |
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BORROWER GUARANTEE |
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54 |
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SCHEDULE I |
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PRICING SCHEDULE |
SCHEDULE 2.01 |
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COMMITMENTS |
SCHEDULE 3.01 |
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SUBSIDIARY GUARANTORS |
SCHEDULE 3.06 |
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LITIGATION |
SCHEDULE 6.01 |
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INDEBTEDNESS |
SCHEDULE 6.02 |
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LIENS |
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EXHIBIT A |
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ASSIGNMENT AND ASSUMPTION |
EXHIBIT B |
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SOLVENCY CERTIFICATE |
EXHIBIT C |
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FORM OF SUBSIDIARY GUARANTY |
EXHIBIT D-1 |
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FORM OF U.S. TAX COMPLIANCE CERTIFICATE |
EXHIBIT D-2 |
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FORM OF U.S. TAX COMPLIANCE CERTIFICATE |
EXHIBIT D-3 |
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FORM OF U.S. TAX COMPLIANCE CERTIFICATE |
EXHIBIT D-4 |
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FORM OF U.S. TAX COMPLIANCE CERTIFICATE |
EXHIBIT E-1 |
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FORM OF BORROWING REQUEST |
EXHIBIT E-2 |
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FORM OF INTEREST ELECTION REQUEST |
EXHIBIT F |
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FORM OF NOTE |
ii
CREDIT AGREEMENT (this Agreement) dated as of November 10, 2015 among LAM
RESEARCH CORPORATION, the LENDERS from time to time party hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent.
The parties
hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
3-Year Tranche Commitment means, as to each 3-Year Tranche Lender, its commitment to make 3-Year Tranche Loans to the
Borrower pursuant to Section 2.01 in an aggregate principal amount at any time outstanding not to exceed the amount set forth opposite such 3-Year Tranche Lenders name on Schedule 2.01, as such commitment may be reduced or adjusted
in accordance with this Agreement. The initial amount of each 3-Year Tranche Lenders 3-Year Tranche Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which such 3-Year Tranche Lender shall have
assumed its 3-Year Tranche Commitments, as applicable. As of the Effective Date, the aggregate amount of 3-Year Tranche Commitment is $375,000,000.
3-Year Tranche Lender means, as of any date of determination, a Lender having a 3-Year Tranche Commitment or holding a
3-Year Tranche Loan.
3-Year Tranche Loans means the term loans made by the 3-Year Tranche Lenders to the Borrower
pursuant to this Agreement.
5-Year Tranche Commitment means, as to each 5-Year Tranche Lender, its commitment to make
5-Year Tranche Loans to the Borrower pursuant to Section 2.01 in an aggregate principal amount at any time outstanding not to exceed the amount set forth opposite such 5-Year Tranche Lenders name on Schedule 2.01, as such
commitment may be reduced or adjusted in accordance with this Agreement. The initial amount of each 5-Year Tranche Lenders 5-Year Tranche Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such 5-Year Tranche Lender shall have assumed its 5-Year Tranche Commitment, as applicable. As of the Effective Date, the aggregate amount of 5-Year Tranche Commitments is $525,000,000.
5-Year Tranche Lender means, as of any date of determination, a Lender having a 5-Year Tranche Commitment or holding a
5-Year Tranche Loan.
5-Year Tranche Loans means the term loans made by the 5-Year Tranche Lenders to the Borrower
pursuant to this Agreement.
ABR, when used in reference to any Loan or Borrowing, refers to a Loan, or the Loans
comprising such Borrowing, bearing interest at a rate determined by reference to the Alternate Base Rate.
Acquired
Business means the Target together with its subsidiaries.
Acquisition means the acquisition by the Borrower,
through the Merger Subs, of all of the Equity Interests in the Target pursuant to the Acquisition Agreement.
Acquisition
Agreement means the Agreement and Plan of Merger and Reorganization, dated as of October 20, 2015, among the Target, the Borrower and the Merger Subs.
Acquisition Representations means the representations made in the Acquisition Agreement as are material to the interests of
the Lenders (but only to the extent that the Borrower or its applicable Affiliates have the right not to consummate the Acquisition, or to terminate their obligations (or otherwise do not have an obligation to close), under the Acquisition Agreement
as a result of a failure of such representations in the Acquisition Agreement to be true and correct).
Adjusted LIBO Rate means, with respect to any Eurodollar Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
Administrative Agent means JPMorgan Chase Bank, N.A. (including its branches and affiliates), in its capacity as
administrative agent for the Lenders hereunder.
Administrative Questionnaire means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
Affiliate means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
Agency Fee Letter means the agency fee letter agreement, dated as of November 10, 2015, between the Borrower and the
Administrative Agent.
Agent Party has the meaning assigned to such term in Section 9.01(d).
Agreement has the meaning assigned to such term in the preamble hereto.
Alternate Base Rate means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such
day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period in Dollars on such day (or if such day is not a Business Day, the immediately preceding Business
Day) plus 1%, provided that, for the avoidance of doubt, the Adjusted LIBO Rate for any day shall be based on the rate appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such page) at approximately 11:00 a.m.
London time on such day. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate,
the Federal Funds Effective Rate or the Adjusted LIBO Rate, respectively.
Anti-Corruption Laws means all laws, rules,
and regulations of any jurisdiction applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption.
Applicable Commitment Fee Rate means, for any Class of Commitment at any time, the percentage rate per annum which is
applicable at such time with respect to Commitments of such Class by reference to the then applicable Index Debt Rating under the caption Applicable Commitment Fee Rate as set forth in the Pricing Schedule.
Applicable Rate means, for any Class and Type of Loan at any time, the percentage rate per annum which is applicable at
such time with respect to Loans of such Class and Type by reference to the then applicable Index Debt Rating under the caption Applicable Rate as set forth in the Pricing Schedule.
Approved Fund has the meaning assigned to such term in Section 9.04(b).
Arrangers means Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A., Barclays Bank PLC and Citibank, N.A., in their
respective capacities as a Joint Lead Arranger and Joint Bookrunner with respect hereto.
Arranger Fee Letter means the
fee letter agreement, dated as of October 20, 2015, among the Borrower and Goldman Sachs Bank USA.
2
Assignment and Assumption means an assignment and assumption agreement entered
into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.
Attributable Debt means, with respect to any Sale and Leaseback Transaction, the present value (discounted at the rate set
forth or implicit in the terms of the lease included in such Sale and Leaseback Transaction) of the total obligations of the lessee for rental payments (other than amounts required to be paid on account of taxes, maintenance, repairs, insurance,
assessments, utilities, operating and labor costs and other items that do not constitute payments for property rights) during the remaining term of the lease included in such Sale and Leaseback Transaction (including any period for which such lease
has been extended). In the case of any lease that is terminable by the lessee upon payment of a penalty, the Attributable Debt shall be the lesser of the Attributable Debt determined assuming termination on the first date such lease may be
terminated (in which case the Attributable Debt shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated) or the
Attributable Debt determined assuming no such termination.
Banking Services means each and any of the following bank
services provided to the Borrower or any Subsidiary by any Lender or any of its Affiliates: (a) credit cards for commercial customers (including, without limitation, commercial credit cards and purchasing cards), (b) stored value cards and
(c) treasury management services (including, without limitation, controlled disbursement, automated clearinghouse transactions, return items, overdrafts and interstate depository network services).
Banking Services Agreement means any agreement entered into by the Borrower or any Subsidiary in connection with Banking
Services.
Bankruptcy Event means, with respect to any Person, such Person becomes the subject of a bankruptcy or
insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good
faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result
solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, provided, further, that such ownership interest does not result in or
provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject,
repudiate, disavow or disaffirm any contracts or agreements made by such Person.
Board means the Board of Governors of
the Federal Reserve System of the United States of America.
Borrower means Lam Research Corporation, a Delaware
corporation.
Borrowing means Loans of the same Class and Type, made, converted or continued on the same date and, in
the case of Eurodollar Loans, as to which a single Interest Period is in effect.
Borrowing Request means a request by
the Borrower for a Borrowing in accordance with Section 2.03 in the form attached hereto as Exhibit E-1.
Business
Day means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, when used in connection with a Eurodollar Loan, the term
Business Day shall also exclude any day on which banks are not open for dealings in Dollars in the London interbank market.
Capitalization Covenant has the meaning assigned to such term in Section 6.05(a).
3
Capital Lease Obligations of any Person means the obligations of such Person
to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital lease obligations on
a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
Change in Control means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any
Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof), of Equity Interests representing more than 40% of the aggregate ordinary voting power represented by the
issued and outstanding Equity Interests of the Borrower; or (b) occupation of a majority of the seats (other than vacant seats) on the board of directors of the Borrower by Persons who were neither (i) approved by the board of directors of
the Borrower nor (ii) appointed by directors so approved.
Change in Law means the occurrence, after the date of
this Agreement (or with respect to any Lender, if later, the date on which such Lender becomes a Lender), of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule,
regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority, or (c) the making or issuance of any request, rules, guideline, requirement or directive (whether or not having
the force of law) by any Governmental Authority; provided however, that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines,
requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a Change in Law regardless of the
date enacted, adopted, issued or implemented.
Charges has the meaning assigned to such term in Section 9.15.
Class, when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such
Borrowing, are 3-Year Tranche Loans or 5-Year Tranche Loans and (b) any Commitment, refers to whether such Commitment is a 3-Year Tranche Commitment or 5-Year Tranche Commitment.
Closing Date means the date on which the conditions specified in Section 4.02 are satisfied (or waived in accordance
with Section 9.02).
Code means the Internal Revenue Code of 1986, as amended.
Commitment means, as to each Lender, such Lenders 3-Year Tranche Commitment or 5-Year Tranche Commitment, as
applicable. As of the Effective Date, the aggregate Commitments of the Lenders are $900,000,000.
Commitment Fees has
the meaning assigned to such term in Section 2.09(a).
Commitment Termination Date has the meaning assigned to
such term in Section 2.07(a).
Communications has the meaning assigned to such term in Section 9.01(d).
Company SEC Reports means all forms, reports and other documents required to be filed or furnished by the Target with the
SEC since June 30, 2012, including any amendments thereof.
Connection Income Taxes means Other Connection Taxes
that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
Consolidated Adjusted EBITDA means, for any period, an amount determined for the Borrower and its Subsidiaries on a
consolidated basis equal to (i) Consolidated Adjusted Net Income, plus (ii) the sum, without duplication, to the extent not already added in the definition of Consolidated Adjusted Net Income, of the amounts
4
for such period of (a) consolidated interest expense of the Borrower and its Subsidiaries, plus (b) provisions for taxes based on income, plus (c) total depreciation expense, plus
(d) total amortization expense, plus (e) losses from dispositions of assets or liabilities outside of the ordinary course of business, plus (f) other non-cash items reducing Consolidated
Adjusted Net Income (excluding any such non-cash item to the extent that it represents an accrual or reserve for potential cash items in any future period or amortization of a prepaid cash item that was paid
in a prior period), plus (g) for any period ending during the first four fiscal quarters ending following the Closing Date, the amount of cost savings and synergies projected by the Borrower in good faith to be realized in connection with the
Acquisition within 12 months of the Closing Date, which cost savings and synergies shall be deemed to have been realized on the first day of such period; provided that (1) such cost savings and synergies are reasonably identifiable,
reasonably attributable to the Acquisition and certified by a financial officer of the Borrower in writing to the Administrative Agent, (2) the Borrower has initiated or will initiate within a period of time following the Closing Date that is
reasonably anticipated to permit such cost savings and synergies to be realized within 12 months of the Closing Date appropriate actions to realize such cost savings and synergies, and (3) the aggregate amount of cost savings and synergies
added pursuant to this clause (g) shall not exceed $100,000,000 for any such period of four consecutive fiscal quarters, minus (iii) the sum, without duplication, to the extent not already deducted in the definition of Consolidated
Adjusted Net Income, of the amounts for such period of (a) other non-cash items increasing Consolidated Adjusted Net Income for such period (excluding any such
non-cash item to the extent it represents the reversal of an accrual or reserve for potential cash item in any prior period), plus (b) interest income, plus (c) other income, plus (d) gains from
dispositions of assets or liabilities outside of the ordinary course of business for such period. If during such period, the Borrower or any of its Subsidiaries shall have made an acquisition or disposition for consideration in excess of
$50,000,000, Consolidated Adjusted EBITDA for such period shall be calculated on a pro forma basis in accordance with Section 1.04(b), provided that pro forma cost savings and synergies shall not be included except to the extent covered
by clause (ii)(g).
Consolidated Adjusted Net Income means, for any period, (i) the net income (or loss) of
the Borrower and its Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP, plus (ii) the sum of (a) amortization of intangible assets acquired in connection with
the Novellus Acquisition, plus (b) effects of purchase accounting adjustments made in relation to any consummated acquisition, plus (c) any impairment charges or asset write-offs, including impairment charges or asset write-offs related to
intangible assets (including goodwill) and long-lived assets, plus (d) any restructuring charges, plus (e) any amortization expense related to notes discounts, plus (f) actual integration costs associated with any consummated
acquisition minus (iii) the sum of (a) the income (or loss) of any Person (other than a Subsidiary of the Borrower) in which any other Person (other than the Borrower or any of its Subsidiaries) has a joint interest, plus
(b) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of the Borrower or is merged into or consolidated with the Borrower or any of its Subsidiaries or that Persons assets are acquired by the Borrower or
any of its Subsidiaries, plus (c) the income of any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of that income is not at the time permitted by operation of
the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary, plus (d) one-time significant gains, plus (e) any restructuring gains.
Consolidated Capitalization means at any time the sum of (a) Consolidated Total Indebtedness as of such time and
(b) consolidated shareholders equity of the Borrower and its Subsidiaries as of such time determined in accordance with GAAP.
Consolidated Total Assets means, as of the date of any determination thereof, total assets of the Borrower and its
Subsidiaries calculated in accordance with GAAP on a consolidated basis as of such date.
Consolidated Total
Indebtedness means at any time the sum, without duplication, of (a) the aggregate Indebtedness of the Borrower and its Subsidiaries calculated on a consolidated basis as of such time in accordance with GAAP (but subject to
Section 1.04), (b) the aggregate amount of Indebtedness of the Borrower and its Subsidiaries relating to the maximum drawing amount of all letters of credit outstanding and bankers acceptances and (c) Indebtedness of the type referred
to in clauses (a) or (b) hereof of another Person guaranteed by the Borrower or any of its Subsidiaries.
5
Control means the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. The terms Controlling and Controlled have meanings correlative thereto.
Convertible Debt means any Indebtedness issued or incurred pursuant to any of (a) the Existing Convertible Notes and
(b) any other unsecured notes issued by the Borrower that are convertible into common stock of the Borrower, cash or any combination thereof.
Credit Party means the Administrative Agent or any other Lender.
Default means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both
would, unless cured or waived, become an Event of Default.
Defaulting Lender means any Lender that (a) has
failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans or (ii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause
(i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lenders good faith determination that a condition precedent to funding (specifically identified and including the particular
default, if any) has not been satisfied, (b) has notified the Borrower or any Credit Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this
Agreement (unless such writing or public statement indicates that such position is based on such Lenders good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a
loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by a Credit Party, acting in good faith, to provide a
certification in writing from an authorized officer of such Lender that it will comply with its obligations to fund prospective Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this
clause (c) upon such Credit Partys receipt of such certification in form and substance satisfactory to it and the Administrative Agent, or (d) has become the subject of a Bankruptcy Event.
Documentation Agent means each of Bank of America, N.A., BNP Paribas, Deutsche Bank Securities Inc., Mizuho Bank, Ltd., The
Bank of Tokyo-Mitsubishi UFJ Ltd. and Wells Fargo Bank, N.A., in its capacity as co-documentation agent for the credit facility evidenced by this Agreement.
Dollars or $ refers to lawful money of the United States of America.
Domestic Subsidiary means a Subsidiary organized under the laws of a jurisdiction located in the United States of America
or any political subdivision thereof.
Effective Date means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
Electronic Signature means an
electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
Electronic System means any electronic system, including e-mail, e-fax, Intralinks®, ClearPar® and any other
Internet or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent and any of its respective Related Parties or any other Person, providing for access to data protected by passcodes or other
security system.
Eligible Investments means:
(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;
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(b) investments in commercial paper maturing within 270 days from the date of acquisition thereof
and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moodys;
(c) investments in
certificates of deposit, bankers acceptances and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more than thirty (30) days for securities described in clause
(a) above and entered into with a financial institution satisfying the criteria described in clause (c) above;
(e) money market
funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moodys and (iii) have portfolio assets of at least $2,000,000,000; and
(f) any other investment permitted under the Borrowers investment policy as in effect on the Effective Date and previously disclosed to
the Administrative Agent, and as amended, restated, modified or supplemented from time to time by the Borrowers treasury strategy committee with the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed).
Environmental Laws means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions,
notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
Environmental Liability means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
Equity Interests means shares of capital stock, partnership interests, membership interests in a limited liability company,
beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any of the foregoing.
Equivalent Amount of any currency with respect to any amount of Dollars at any date shall mean the equivalent in such
currency of such amount of Dollars, calculated on the basis of the Exchange Rate for such other currency at 11:00 a.m., London time, on the date on or as of which such amount is to be determined.
ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time.
ERISA Affiliate means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a
single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
ERISA Event means (a) any reportable event, as defined in Section 4043 of ERISA or the regulations
issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the failure to satisfy the minimum funding standard (as defined in Section 412 of the Code or Section 302 of
ERISA),
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whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect
to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal of the Borrower or any of its ERISA Affiliates from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition upon the Borrower or any of its ERISA Affiliates of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
Eurodollar means that such Loan, or the Loans comprising such Borrowing,
bears interest at a rate determined by reference to the Adjusted LIBO Rate.
Event of Default has the meaning assigned
to such term in Section 7.01.
Excluded Taxes means any of the following Taxes imposed on or with respect to a
Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such
Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are
Other Connection Taxes, (b) in the case of a Lender, U.S. Federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on
the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.16(b)) or (ii) such Lender changes its lending office, except in each
case to the extent that, pursuant to Section 2.14, amounts with respect to such Taxes were payable either to such Lenders assignor immediately before such Lender acquired the applicable interest in a Loan or Commitment or to such Lender
immediately before it changed its lending office, (c) Taxes attributable to such Recipients failure to comply with Section 2.14(f) and (d) any U.S. Federal withholding Taxes imposed under FATCA.
Existing Convertible Notes means (i) the 0.50% Convertible Senior Notes due 2016 issued pursuant to the Indenture
between the Borrower and The Bank of New York Mellon Trust Company, N.A., as Trustee, dated as of May 11, 2011, (ii) the 1.25% Convertible Senior Notes due 2018 issued pursuant to the Indenture between the Borrower and The Bank of New York
Mellon Trust Company, N.A., as Trustee, dated as of May 11, 2011 and (iii) the Novellus Convertible Notes.
FATCA means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version
that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code and applicable
intergovernmental agreements and related legislation or official administrative rules or practices with respect thereto.
Federal
Funds Effective Rate means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of
the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
Fee Letters means the Arranger Fee Letter and the Agency Fee Letter.
Financial Officer means the chief financial officer, principal financial officer, principal accounting officer, treasurer,
vice president of finance, controller or assistant controller of the Borrower.
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Financials means the annual or quarterly financial statements, and
accompanying certificates and other documents, of the Borrower and its Subsidiaries required to be delivered pursuant to Section 5.01(a) or 5.01(b).
Foreign Lender means a Lender that is not a U.S. Person.
GAAP means generally accepted accounting principles in the United States of America.
Governmental Authority means the government of the United States of America, any other nation or any political subdivision
thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining
to government.
Guarantee of or by any Person (the guarantor) means any obligation, contingent or
otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the primary obligor) in any manner, whether directly or indirectly, and including any
obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any
security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.
Hazardous Materials means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes
or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.
Impacted Interest Period has the meaning assigned to such term in the definition of
LIBO Rate.
Indebtedness of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges
are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price
of property or services (excluding current accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such
Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in respect of bankers
acceptances, (k) all Attributable Debt of such Person and (l) any other Off-Balance Sheet Liability (excluding obligations and liabilities to the extent the same are (1) cash collateralized or (2) segregated in a restricted
account and reflected on the balance sheet of such Person as restricted cash) of such Person. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to
the extent such Person is liable therefor as a result of such Persons ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.
Indemnified Taxes means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on
account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
Indemnitee has the meaning assigned to such term in Section 9.03(b).
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Index Debt Rating means, as of any date of determination, the rating at such
time established by either S&P or Moodys in respect of the senior, unsecured, long-term indebtedness for borrowed money of the Borrower that is not Guaranteed by any other Person or subject to any other credit enhancement.
Ineligible Institution has the meaning assigned to such term in Section 9.04(b).
Information has the meaning assigned to such term in Section 9.12.
Information Memorandum means the Confidential Information Memorandum dated October 2015 relating to the Borrower and the
Transactions.
Interest Election Request means a request by the Borrower to convert or continue a Borrowing in
accordance with Section 2.05 in the form attached hereto as Exhibit E-2.
Interest Payment Date means
(a) with respect to any ABR Loan, the last day of each March, June, September and December and the applicable Maturity Date and (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of
which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months duration, each day prior to the last day of such Interest Period that occurs at intervals of three months duration
after the first day of such Interest Period and the applicable Maturity Date.
Interest Period means with respect to
any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as the Borrower may elect; provided, that
(i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, in the case of a Eurodollar Borrowing only, such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period pertaining to a Eurodollar Borrowing that commences on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
Interpolated Rate means, at any time, the rate per annum determined by the Administrative Agent (which determination shall
be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBOR Screen Rate for the longest period (for which the LIBOR Screen Rate is available for the
applicable currency) that is shorter than the Impacted Interest Period and (b) the LIBOR Screen Rate for the shortest period (for which the LIBOR Screen Rate is available for the applicable currency) that exceeds the Impacted Interest Period,
in each case, at such time.
IRS means the United States Internal Revenue Service.
Lenders means the Persons listed on Schedule 2.01 and any other Person that shall have become a Lender hereunder
pursuant to Section 2.20 or pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
Leverage Covenant has the meaning assigned to such term in Section 6.05(a).
LIBO Rate means, with respect to any Eurodollar Borrowing for any applicable Interest Period, the London interbank offered
rate administered by the ICE Benchmark Administration Limited (or any other Person that takes over the administration of such rate) for Dollars for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the
Reuters screen or, in the event such rate does not appear on either of such Reuters pages, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such
rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion (in each case the LIBOR Screen Rate) at approximately 11:00 a.m.,
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London time, two Business Days prior to the commencement of such Interest Period; provided that, if the LIBOR Screen Rate shall be less than zero, such rate shall be deemed to be zero for
purposes of this Agreement; provided, further, that if a LIBOR Screen Rate shall not be available at such time for such Interest Period (the Impacted Interest Period), then the LIBO Rate for such currency and such
Interest Period shall be the Interpolated Rate; provided, that, if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. It is understood and agreed that all of the terms and
conditions of this definition of LIBO Rate shall be subject to Section 2.14.
LIBOR Screen Rate has
the meaning assigned to such term in the definition of LIBO Rate.
Lien means, with respect to any asset,
(a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such
securities.
Liquidity means, at any time the same is to be determined, the Dollar Amount of unrestricted and
unencumbered cash and Eligible Investments maintained by the Borrower and its Subsidiaries at such time.
Loan
Documents means this Agreement, any promissory notes issued pursuant to Section 2.08(e), the Subsidiary Guaranty, and all other agreements, instruments, documents and certificates identified in Section 4.01 executed and delivered
to, or in favor of, the Administrative Agent or any Lenders and including all other pledges, powers of attorney, consents, assignments, contracts, notices, letter of credit agreements and all other written matter whether heretofore, now or hereafter
executed by or on behalf of any Loan Party, or any employee of any Loan Party, and delivered to the Administrative Agent or any Lender in connection with this Agreement or the transactions contemplated hereby. Any reference in this Agreement or any
other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to this Agreement or such Loan Document as the same may
be in effect at any and all times such reference becomes operative.
Loan Parties means, collectively, the Borrower and
the Subsidiary Guarantors.
Loans means the 3-Year Tranche Loans and the 5-Year Tranche Loans made by the Lenders to
the Borrower pursuant to this Agreement.
Material Adverse Effect means a material adverse effect on (a) the
business, assets, operations or condition (financial or otherwise) of the Borrower and the Subsidiaries taken as a whole, (b) the ability of the Borrower to perform any of its obligations under this Agreement or (c) the validity or
enforceability of this Agreement or any and all other Loan Documents or the rights or remedies of the Administrative Agent and the Lenders thereunder.
Material Domestic Subsidiary means each Material Subsidiary that is a Domestic Subsidiary.
Material Subsidiary means each Subsidiary that is so designated by the Borrower or which, as of the end of the most recent
fiscal quarter of the Borrower, for the period of four consecutive fiscal quarters then ended, for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (or, if prior to the date of the delivery of the first
financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a)), contributed greater than 5% of the Borrowers consolidated revenues for such period
(excluding intercompany sales); provided that, if at any time the aggregate amount of the Borrowers consolidated revenues attributable to all Subsidiaries that are not Material Subsidiaries exceeds 10% of the Borrowers
consolidated revenues for any such period, the Borrower (or, in the event the Borrower has failed to do so within ten (10) days, the Administrative Agent) shall designate sufficient Subsidiaries as Material Subsidiaries to eliminate
such excess, and such designated Subsidiaries shall for all purposes of this Agreement constitute Material Subsidiaries.
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Material Indebtedness means Indebtedness (other than the Loans), or
obligations in respect of one or more Swap Agreements, of any one or more of the Borrower and its Subsidiaries in an aggregate principal amount exceeding $150,000,000. For purposes of determining Material Indebtedness, the principal
amount of the obligations of the Borrower or any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to
pay if such Swap Agreement were terminated at such time.
Maturity Date means, as applicable, the earlier of
(i) with respect to (a) the 3-Year Tranche Loans, the date that is the three year anniversary of the Closing Date and (b) the 5-Year Tranche Loans, the date that is the five year anniversary of the Closing Date and (ii) the date
on which the maturity of the Loans is accelerated in accordance with the terms hereof.
Maximum Rate has the meaning
assigned to such term in Section 9.15.
Merger Subs means Topeka Merger Sub 1, Inc. and Topeka Merger Sub 2, Inc.
Moodys means Moodys Investors Service, Inc.
Multiemployer Plan means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
Non-Consenting Lender has the meaning assigned to such term in Section 9.02(d).
Novellus Acquisition means the acquisition by the Borrower of Novellus Systems, Inc., a California corporation, pursuant to
that certain Agreement and Plan of Merger, dated as of December 14, 2011, among the Borrower, as the parent, BLMS Inc., a California corporation and wholly owned subsidiary of the Borrower, as merger sub, and Novellus Systems, Inc.
Novellus Convertible Notes means the 2.65% Senior Convertible Notes due 2041 issued by Novellus Systems, Inc., a Subsidiary
of the Borrower, pursuant to the First Supplemental Indenture between Novellus Systems, Inc. and The Bank of New York Mellon Trust Company, N.A., as Trustee, dated as of June 4, 2012, which senior convertible notes are Guaranteed by the
Borrower.
Obligations means all unpaid principal of and accrued and unpaid interest on the Loans, all accrued and
unpaid fees and all expenses, reimbursements, indemnities and other obligations and indebtedness (including interest and fees accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), obligations and liabilities of any of the Borrower and its Subsidiaries to any of the Lenders, the Administrative Agent or any indemnified party, individually or collectively, existing on the Effective Date
or arising thereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or otherwise, arising or incurred under this Agreement
or any of the other Loan Documents or to the Lenders or any of their Affiliates under any Swap Agreement or any Banking Services Agreement or in respect of any of the Loans made or reimbursement or other obligations incurred or any other instruments
at any time evidencing any thereof.
OFAC means the Office of Foreign Assets Control of the U.S. Department of the
Treasury.
Off-Balance Sheet Liability of a Person means (a) any repurchase obligation or liability of such Person
with respect to accounts or notes receivable sold by such Person, (b) any indebtedness, liability or obligation under any so-called synthetic lease transaction entered into by such Person, or (c) any indebtedness,
liability or obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheet of such Person (other than operating leases).
Other Connection Taxes means, with respect to any Recipient, Taxes imposed as a result of a present or former
connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or
perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
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Other Taxes means all present or future stamp, court or documentary,
intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect
to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.16).
Outside Date means July 20, 2016 (provided, that, to the extent the Outside Date (as defined in the Acquisition
Agreement) is extended to October 20, 2016 in accordance with the terms of Section 8.1(d) of the Acquisition Agreement (in accordance with the terms thereof as in effect on October 20, 2015), the Outside Date shall, upon notice of
such extension to the Administrative Agent from the Borrower, be automatically extended to October 20, 2016).
Participant has the meaning assigned to such term in Section 9.04(c).
Participant Register has the meaning assigned to such term in Section 9.04(c).
Patriot Act means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
PBGC means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing
similar functions.
Permitted Encumbrances means:
(a) Liens imposed by law for Taxes that are not yet due or are being contested in compliance with Section 5.04;
(b) carriers, warehousemens, mechanics, materialmens, repairmens and other like Liens imposed by law, arising in
the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in compliance with workers compensation, unemployment insurance and
other social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;
(e) judgment Liens in respect of judgments that do not constitute an Event of Default under Section 7.01(k); and
(f) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;
provided that the term Permitted Encumbrances shall not include any Lien securing Indebtedness.
Person means any natural person, corporation, limited liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.
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Plan means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be
deemed to be) an employer as defined in Section 3(5) of ERISA.
Pricing Schedule means the pricing
grid set forth on Schedule I attached hereto.
Prime Rate means the rate of interest per annum publicly
announced from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being
effective.
Quarterly Payment Date means the last Business Day of each successive period of three calendar months
duration commencing on the Closing Date.
Recipient means (a) the Administrative Agent and (b) any Lender, as
applicable.
Reference Bank Rate means the arithmetic mean of the rates (rounded upwards to four decimal places)
supplied to the Administrative Agent at its request by the Reference Banks (as the case may be) as of the applicable time two Business Days prior to the commencement of such Interest Period as the rate at which the relevant Reference Bank could
borrow funds in the London (or other applicable) interbank market in Dollars and for the relevant period, were it to do so by asking for and then accepting interbank offers in reasonable market size in that currency and for that period.
Reference Banks means the principal London (or other applicable) offices of JPMorgan Chase Bank, N.A. and such other banks
as may be appointed by the Administrative Agent in consultation with the Borrower and as agreed to by such bank.
Register has the meaning assigned to such term in Section 9.04(b).
Related Parties means, with respect to any specified Person, such Persons Affiliates and the respective directors,
officers, employees, agents, advisors and representatives of such Person and such Persons Affiliates.
Required
Lenders means, at any time, Lenders having Loans representing more than 50% of the sum of the total Loans at such time or, if no such principal amount is then outstanding, Lenders having Commitments representing more than 50% of the
aggregate Commitments at such time; provided that if the Required Lenders are being determined with respect to a Class, then the numerator and denominator shall be determined with respect to the Commitments and/or Loans of such Class only.
Responsible Officer means a Financial Officer or any of the chief executive officer, president, any executive vice
president, any senior vice president, chief operating officer or chief legal officer of the Borrower.
S&P means
Standard & Poors Ratings Services, a Standard & Poors Financial Services LLC business.
Sale and
Leaseback Transaction means any sale or other transfer of any property or asset by any Person with the intent to lease such property or asset as lessee.
Sanctioned Country means, at any time, a country or territory which is the subject or target of any Sanctions.
Sanctioned Person means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons
maintained by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union or any EU member state, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person controlled by any
such Person.
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Sanctions means economic or financial sanctions or trade embargoes imposed,
administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC or the U.S. Department of State or (b) the United Nations Security Council, the European Union or Her Majestys Treasury of
the United Kingdom.
SEC means the United States Securities and Exchange Commission.
Securities Act means the United States Securities Act of 1933.
Solvency Certificate means a solvency certificate substantially in the form attached hereto as Exhibit B.
Solvent means, with respect to the Borrower and its Subsidiaries (a) the fair value of the assets of the Borrower and
its Subsidiaries, on a consolidated basis, exceeds, on a consolidated basis, their debts and liabilities, subordinated, contingent or otherwise, (b) the present fair saleable value of the property of the Borrower and its Subsidiaries, on a
consolidated basis, is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become
absolute and matured, (c) the Borrower and its Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities, subordinated, contingent or otherwise, as such liabilities become absolute and matured and (d) the Borrower
and its Subsidiaries, on a consolidated basis, are not engaged in, and are not about to engage in, business for which they have unreasonably small capital. For the purposes of the foregoing, the amount of any contingent liability at any time shall
be computed as the amount that would reasonably be expected to become an actual and matured liability.
Specified Ancillary
Obligations means all obligations and liabilities (including interest and fees accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such
proceeding) of any of the Subsidiaries, existing on the Effective Date or arising thereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract,
operation of law or otherwise, to the Lenders or any of their Affiliates under any Swap Agreement or any Banking Services Agreement.
Specified Representations each of the representations and warranties made by the Borrower in Sections 3.01(a), 3.02,
3.03(b), 3.03(c) (limited to indentures, agreements and instruments with respect to committed or outstanding Material Indebtedness of the Borrower or its Subsidiaries), 3.04(a)(ii), 3.08, 3.12, 3.15 and 3.16.
Statutory Reserve Rate means a fraction (expressed as a decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate of the maximum reserve, liquid asset, fees or similar requirements (including any marginal, special, emergency or supplemental reserves or other requirements) established by the Board or
other Governmental Authority for any category of deposits or liabilities customarily used to fund loans in Dollars, expressed in the case of each such requirement as a decimal. Such reserve, liquid asset, fees or similar requirements shall include
those imposed pursuant to Regulation D of the Board. Eurodollar Loans shall be deemed to be subject to such reserve, liquid asset, fee or similar requirements without benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under any applicable law, rule or regulation, including Regulation D of the Board. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve, liquid asset
or similar requirement.
Subordinated Indebtedness means any Indebtedness of the Borrower or any Subsidiary the payment
of which is subordinated to payment of the obligations under the Loan Documents.
subsidiary means, with respect to any
Person (the parent) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parents consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, Controlled or held, or (b) that
is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
15
Subsidiary means any subsidiary of the Borrower.
Subsidiary Guarantor means each Material Domestic Subsidiary that is a party to the Subsidiary Guaranty. The Subsidiary
Guarantors on the Effective Date are identified as such in Schedule 3.01 hereto.
Subsidiary Guaranty means that
certain Guaranty dated as of the Effective Date in the form of Exhibit C (including any and all supplements thereto) and executed by each Subsidiary Guarantor, as amended, restated, supplemented or otherwise modified from time to time.
Swap Agreement means any agreement with respect to any swap, forward, future or derivative transaction or option or similar
agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the
Borrower or the Subsidiaries shall be a Swap Agreement.
Syndication Agent means each of Goldman Sachs Bank USA,
Barclays Bank PLC and Citibank, N.A., in its capacity as syndication agent for the term loan facility evidenced by this Agreement.
Target means KLA-Tencor Corporation.
Target Material Adverse Effect means Effect or Effects that, individually or in the aggregate, are, or would reasonably be
expected to be, materially adverse to (a) the business, assets, properties, condition (financial or otherwise) or results of operations of the Company and the Company Subsidiaries, taken as a whole; provided, that none of the
following will be deemed, either alone or in combination, to be or constitute a Target Material Adverse Effect or be taken into account when determining whether a Target Material Adverse Effect has occurred or may, would or
could occur: (i) conditions (or changes after the date hereof in such conditions) in the industry in which the Company and the Company Subsidiaries operate, (ii) general economic conditions (or changes after the date hereof in such
conditions) within the U.S. or any other country, (iii) conditions (or changes after the date hereof in such conditions) in the securities markets, credit markets, currency markets or other financial markets in the United States or any other
country, (iv) political conditions (or changes after the date hereof in such conditions) in the United States or any other country or acts of war, sabotage or terrorism (including any escalation or general worsening of any such acts of war,
sabotage or terrorism) in the United States or any other country, (v) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions and other force majeure events in the United States
or any other country, (vi) changes in Law or other legal or regulatory conditions (or the interpretation thereof) or changes in GAAP or other accounting standards (or the interpretation thereof), (vii) the public announcement of
discussions among the Parties regarding a potential Transaction, the public announcement, execution, delivery or performance of the Acquisition Agreement, or the identity of the Parent Entities, (viii) changes in the Companys stock price
or the trading volume of the Companys stock, or any failure by the Company to meet any public estimates or expectations of the Companys revenue, earnings or other financial performance or results of operations for any period, or any
failure by the Company to meet any internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations (but not, in each case, the underlying cause of such changes or failures, unless such changes
or failures would otherwise be excepted from this definition), and (ix) any Claims or Actions made or brought by any of the current or former stockholders of the Company or Parent (on their own behalf or on behalf of the Company or Parent)
against the Company or Parent arising out of the Mergers or in connection with any other Transactions, except, in the case of each of clauses (i) through (vi), to the extent such Effects disproportionately affect the Company and the Company
Subsidiaries, taken as a whole, in any material respect relative to other companies of comparable size in the same industries and geographies in which the Company and the Company Subsidiaries operate, or (b) the ability of the Company to
consummate the First Merger. Capitalized terms used in this definition are used as defined in the Acquisition Agreement (as in effect on October 20, 2015).
16
Taxes means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Transactions means the consummation of the Acquisition, the execution, delivery and performance by the Loan Parties of this
Agreement and the other Loan Documents, the borrowing of Loans and other credit extensions, the use of the proceeds thereof and the other transactions contemplated hereby and the payment of fees and expenses related thereto.
Type refers to whether the rate of interest on such Loan is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
U.S. Person means a United States person within the meaning of
Section 7701(a)(30) of the Code.
U.S. Tax Compliance Certificate has the meaning assigned to such term in
Section 2.14(f)(ii)(B)(3).
Withdrawal Liability means liability to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by
Class (e.g., a 3-Year Tranche Loan) or by Type (e.g., a Eurodollar Loan). Borrowings also may be classified and referred to by Type (e.g., a Eurodollar Borrowing).
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words include, includes and including shall be deemed to be followed by the phrase
without limitation. The word will shall be construed to have the same meaning and effect as the word shall. The word law shall be construed as referring to all statutes, rules, regulations, codes and
other laws (including official rulings and interpretations thereunder having the force of law or with which affected Persons customarily comply), and all judgments, orders and decrees, of all Governmental Authorities. Unless the context requires
otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented or otherwise
modified (subject to any restrictions on such amendments, restatements, supplements or modifications set forth herein), (b) any definition of or reference to any statute, rule or regulation shall be construed as referring thereto as from time
to time amended, supplemented or otherwise modified (including by succession of comparable successor laws), (c) any reference herein to any Person shall be construed to include such Persons successors and assigns (subject to any
restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof, (d) the words herein, hereof and
hereunder, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (e) all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (f) the words asset and property shall be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting
Terms; GAAP; Pro Forma Calculations. (a) Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the
Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision
(or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.
Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made (i) without giving
17
effect to any election under Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to
value any Indebtedness or other liabilities of the Borrower or any Subsidiary at fair value, as defined therein and (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under
Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and
such Indebtedness shall at all times be valued at the full stated principal amount thereof.
(b) Except as otherwise expressly provided
herein, all pro forma computations required to be made hereunder giving effect to any acquisition or disposition for consideration in excess of $50,000,000, or issuance, incurrence or assumption of Indebtedness, or other transaction shall in each
case be calculated giving pro forma effect thereto (and, in the case of any pro forma computation made hereunder to determine whether such acquisition or disposition, or issuance, incurrence or assumption of Indebtedness, or other transaction is
permitted to be consummated hereunder, to any other such transaction consummated since the first day of the period covered by any component of such pro forma computation and on or prior to the date of such computation) as if such transaction had
occurred on the first day of the period of four consecutive fiscal quarters ending with the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of
any such financial statements, ending with the last fiscal quarter included in the financial statements referred to in Section 3.04(a)), and, to the extent applicable, to the historical earnings and cash flows associated with the assets
acquired or disposed of (but without giving effect to any synergies or cost savings) and any related incurrence or reduction of Indebtedness, all in accordance with Article 11 of Regulation S-X under the Securities Act. If any Indebtedness bears a
floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any
Swap Agreement applicable to such Indebtedness).
SECTION 1.05. Status of Obligations. In the event that the Borrower or any
other Loan Party shall at any time issue or have outstanding any Subordinated Indebtedness, the Borrower shall take or cause such other Loan Party to take all such actions as shall be necessary to cause the Obligations to constitute senior
indebtedness (however denominated) in respect of such Subordinated Indebtedness and to enable the Administrative Agent and the Lenders to have and exercise any payment blockage or other remedies available or potentially available to holders of
senior indebtedness under the terms of such Subordinated Indebtedness. Without limiting the foregoing, the Obligations are hereby designated as senior indebtedness and as designated senior indebtedness and words of similar
import under and in respect of any indenture or other agreement or instrument under which such Subordinated Indebtedness is outstanding and are further given all such other designations as shall be required under the terms of any such Subordinated
Indebtedness in order that the Lenders may have and exercise any payment blockage or other remedies available or potentially available to holders of senior indebtedness under the terms of such Subordinated Indebtedness.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein, each Lender (severally and not jointly)
agrees to make Loans to the Borrower in Dollars on the Closing Date in an amount not to exceed (i) with respect to the 3-Year Tranche Loans, the Lenders 3-Year Tranche Commitment and (ii) with respect to the 5-Year Tranche Loans, the
Lenders 5-Year Tranche Commitment; provided that if for any reason the full amount of any Lenders Commitment is not fully drawn on the Closing Date, the undrawn portion thereof shall automatically be cancelled upon giving effect
to the funding of the drawn Loans on the Closing Date. Any amount borrowed under this Section 2.01 and subsequently repaid or prepaid may not be reborrowed. Each Lenders Commitment shall terminate (or be reduced, as applicable)
immediately and without further action (i) on the Closing Date after giving effect to the funding of such Lenders Commitment on the Closing Date or (ii) in accordance with Sections 2.06(a) and 2.07(a).
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made as part of a Borrowing consisting of Loans made by the
Lenders ratably in accordance with their respective Commitments. Each Borrowing shall be made ratably among each Class of Loans and each Loan shall be made as part of a Borrowing consisting of Loans of
18
the same Class made by the Lenders ratably in accordance with their respective Commitments with respect to such Class. The failure of any Lender to make any Loan required to be made by it shall
not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lenders failure to make Loans as required.
(b) Subject to Section 2.11, each Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan (and in the case of an Affiliate, the provisions of Sections 2.11, 2.12, 2.13 and 2.14 shall
apply to such Affiliate to the same extent as to such Lender); provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000. Borrowings of more
than one Type and Class may be outstanding at the same time; provided that there shall not at any time be more than a total of seven Eurodollar Borrowings outstanding in the aggregate for Loans of all Classes.
(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end after the applicable Maturity Date for such Borrowing.
SECTION 2.03. Requests for Borrowings. To request a Borrowing, the Borrower shall notify the Administrative Agent of such request
(a) by irrevocable written notice (via a written Borrowing Request signed by the Borrower, promptly followed by telephonic confirmation of such request) in the case of a Eurodollar Borrowing, not later than 12:00 noon, New York City time, three
Business Days before the date of the proposed Borrowing or (b) by telephone in the case of an ABR Borrowing, not later than 12:00 noon, New York City time, one Business Day before the date of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request signed by the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the
definition of the term Interest Period; and
(v) the location and number of the Borrowers account to which funds
are to be disbursed, which shall comply with the requirements of Section 2.04.
If no election as to the Type of Borrowing is specified then the
requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one months duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lenders Loan to be made as part of the requested Borrowing.
SECTION 2.04. Funding of Borrowings. (a) Each Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 12:00 noon, New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. The Administrative Agent will make such
Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower maintained with the Administrative Agent in New York City or Chicago and designated by the Borrower in the applicable
Borrowing Request.
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(b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lenders share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to
the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is
made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such
Lenders Loan included in such Borrowing.
SECTION 2.05. Interest Elections. (a) Each Borrowing initially shall be
of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a
different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election (by telephone or
irrevocable written notice) by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each
such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request signed by the Borrower. Notwithstanding any contrary
provision herein, this Section shall not be construed to permit the Borrower to (i) elect an Interest Period for Eurodollar Loans that does not comply with Section 2.02(d) or (ii) convert any Borrowing to a Borrowing of a Type not
available under such Borrowing.
(c) Each telephonic and written Interest Election Request shall specify the following information in
compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and, if different options are being
elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business
Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election,
which Interest Period shall be a period contemplated by the definition of the term Interest Period.
If any such Interest Election Request
requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one months duration.
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(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lenders portion of each resulting Borrowing.
(e) If the Borrower fails to
deliver a timely Interest Election Request with respect to a Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing
shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so
long as an Event of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION 2.06. Voluntary Reduction and Termination of the Commitments and Prepayments.
(a) The Borrower may at any time terminate, or from time to time reduce, the Commitments; provided that each reduction of the Commitments shall be in an amount that is an integral multiple of $1,000,000 and not less than $10,000,000. The
Borrower shall notify the Administrative Agent of any election to terminate or reduce the Commitments under this paragraph (a) at least three Business Days prior to the effective date of such termination or reduction, specifying such election
and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided
that a notice of termination of the Commitments delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities or other transactions specified therein, in which case such notice may be revoked
by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Commitments shall be permanent. Each reduction of the Commitments shall be
allocated ratably between each Class of Commitments then outstanding and made ratably among the Lenders within each Class in accordance with their respective Commitments (or as between Lenders which are Affiliates of each other, as they may
determine and notify to the Administrative Agent).
(b) The Borrower shall have the right at any time and from time to time to prepay any
Borrowing on any Class in whole or in part, subject to prior notice in accordance with the provisions of this Section 2.06(b). The Borrower shall notify the Administrative Agent by written notice (promptly followed by telephonic confirmation of
such request) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 12:00 noon, New York City time, three Business Days before the date of prepayment or (ii) in the case of prepayment of an ABR
Borrowing, not later than 12:00 noon, New York City time, one Business Day before the date of prepayment, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal
amount and Class(es) of each Borrowing or portion thereof to be prepaid; provided that, if a notice of prepayment is given in connection with a conditional notice of termination of the Commitments as contemplated by paragraph (a), then such
notice of prepayment may be revoked if such notice of termination is revoked in accordance with paragraph (a). Promptly following receipt of any such notice relating to a Borrowing, the Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02. Each prepayment of a Borrowing shall be allocated among each
Class of Loans as directed by the Borrower and applied ratably to the Loans within such Class included in the prepaid Borrowing. Prepayments shall be accompanied by (i) accrued interest to the extent required by Section 2.10 and
(ii) break funding payments pursuant to Section 2.13.
SECTION 2.07. Mandatory Termination of Commitments.
(a) Unless previously terminated, the Commitments shall automatically terminate on the first to occur of (i) the consummation of the
Acquisition without drawing the Loans, (ii) the termination of the Borrowers or the Merger Subs obligations to consummate the Acquisition pursuant to the Acquisition Agreement and (iii) the Outside Date (the date of such
earliest occurrence, the Commitment Termination Date).
(b) Any termination of the Commitments pursuant to this
Section 2.07 shall be permanent. The Administrative Agent shall promptly notify each Lender of the termination of the Commitments pursuant to this Section 2.07.
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SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay:
(i) to the Administrative Agent for the account of each 3-Year Tranche Lender on each Quarterly Payment
Date following the Closing Date, the applicable percentage determined in accordance with the applicable grid set forth below on the aggregate principal amount of 3-Year Tranche Loans made as of the Closing Date;
|
|
|
|
|
3-Year Tranche Loans |
|
Quarterly Payment Dates |
|
Applicable percentage per calendar quarter |
|
Each Quarterly Payment Date from the Closing Date until and including the first anniversary of the Closing Date |
|
|
1.25 |
% |
Each Quarterly Payment Date from the first anniversary of the Closing Date until and including the second anniversary of the Closing
Date |
|
|
1.25 |
% |
Each Quarterly Payment Date from the second anniversary of the Closing Date until and including the third anniversary of the Closing
Date |
|
|
2.50 |
% |
(ii) to the Administrative Agent for the account of each 5-Year Tranche Lender on each Quarterly Payment Date
following the Closing Date, the applicable percentage determined in accordance with the applicable grid set forth below on the aggregate principal amount of 5-Year Tranche Loans made as of the Closing Date; and
|
|
|
|
|
5-Year Tranche Loans |
|
Quarterly Payment Dates |
|
Applicable percentage per calendar quarter |
|
Each Quarterly Payment Date from the Closing Date until and including the first anniversary of the Closing Date |
|
|
1.25 |
% |
Each Quarterly Payment Date from the first anniversary of the Closing Date until and including the second anniversary of the Closing
Date |
|
|
1.25 |
% |
Each Quarterly Payment Date from the second anniversary of the Closing Date until and including the third anniversary of the Closing
Date |
|
|
2.50 |
% |
Each Quarterly Payment Date from the third anniversary of the Closing Date until and including the fourth anniversary of the Closing
Date |
|
|
3.75 |
% |
Each Quarterly Payment Date thereafter until and including the fifth anniversary of the Closing Date |
|
|
16.25 |
% |
(iii) to the Administrative Agent for the account of each Lender the then unpaid principal amount of each
Loan on the applicable Maturity Date with respect to such Loan.
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(b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and
Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lenders share thereof.
(d) The entries made in the accounts
maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein absent manifest error; provided that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the Obligations.
(e) Any Lender
may request that Loans made by it be evidenced by a promissory note. In such event, the Borrower shall prepare, execute and deliver a promissory note to such Lender or its registered assigns in the form attached hereto as Exhibit F.
Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to the payee named therein
or its registered assigns.
(f) The accounts and records maintained by the Administrative Agent referred to in clause (c) shall be
treated as part of the Register. In the event of any inconsistency between the Register and any Lenders records, the records as in the Register shall govern.
SECTION 2.09. Fees. (a) The Borrower agrees to pay to the Administrative Agent for the account of each Lender commitment fees
(the Commitment Fees), which shall accrue at the Applicable Commitment Fee Rate on the daily average amount of each Class of undrawn Commitments of such Lender during the period from and including the Effective Date to but
excluding the date on which such Commitment terminates. Accrued Commitment Fees shall be payable in arrears on the last day of March, June, September and December of each year and on the date on which the Commitments terminate, commencing on the
first such date to occur after the date hereof; provided that any Commitment Fees accruing after the date on which the Commitments terminate shall be payable on demand. All Commitment Fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).
(b) The Borrower agrees
to pay to the Administrative Agent, the Arrangers and the Lenders the other applicable fees respectively required to be paid to them in the amounts and the times as set forth in the Fee Letters.
(c) All fees payable hereunder shall be paid on the dates due, in Dollars and immediately available funds, to the Administrative Agent for
distribution, in the case of the Commitment Fees, to the Lenders. Fees paid shall not be refundable under any circumstances.
SECTION 2.10. Interest. (a) The Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate plus the
Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest Period
in effect for such Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on any Loan or
any fee or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to
23
(i) in the case of overdue principal of any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other
amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan
shall be payable in arrears on each Interest Payment Date for such Loan and upon termination of the Commitments; provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior
to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by
the Administrative Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.11. Alternate Rate of
Interest.
(a) If at the time that the Administrative Agent shall seek to determine the LIBOR Screen Rate on the date that is two
Business Days prior to the commencement of such Interest Period for a Eurodollar Borrowing, the LIBOR Screen Rate shall not be available for such Interest Period and/or for the applicable currency with respect to such Eurodollar Borrowing for any
reason, and the Administrative Agent shall reasonably determine that it is not possible to determine the Interpolated Rate (which conclusion shall be conclusive and binding absent manifest error), then the Reference Bank Rate shall be the LIBO Rate
for such Interest Period for such Eurodollar Borrowing; provided that if the Reference Bank Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement; provided, further, however, that if
less than two Reference Banks shall supply a rate to the Administrative Agent for purposes of determining the LIBO Rate for such Eurodollar Borrowing, then such Borrowing shall be made as an ABR Borrowing at the Alternate Base Rate.
(b) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(i) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable (after giving effect to Section 2.11(a)), for a Loan in the applicable currency or for the applicable Interest Period; or
(ii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for a Loan in
the applicable currency or for the applicable Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period, then the Administrative Agent
shall give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no
longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and (ii) if any Borrowing Request requests a Eurodollar
Borrowing, such Borrowing shall be made as an ABR Borrowing; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then the other Type of Borrowings shall be permitted. The Administrative Agent
shall use commercially reasonable efforts to promptly notify the Borrower if and when the circumstances giving rise to the notice described above are no longer in effect.
SECTION 2.12. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, liquidity or similar requirement (including any compulsory loan
requirement, insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate);
24
(ii) impose on any Lender or the London interbank market any other condition, cost or expense
(other than Taxes) affecting this Agreement or Loans made by such Lender; or
(iii) subject any Recipient to any Taxes (other than
(A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations,
or its deposits, reserves, other liabilities or capital attributable thereto; and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, continuing, converting into or maintaining any Loan
or of maintaining its obligation to make any such Loan or to reduce the amount of any sum received or receivable by such Lender or such other Recipient hereunder, whether of principal, interest or otherwise, then the Borrower will pay to such Lender
or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the
rate of return on such Lenders capital or on the capital of such Lenders holding company, if any, as a consequence of this Agreement or the Loans made by such Lender, to a level below that which such Lender or such Lenders holding
company could have achieved but for such Change in Law (taking into consideration such Lenders policies and the policies of such Lenders holding company with respect to capital adequacy and liquidity), then from time to time the Borrower
will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lenders holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may
be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within ten days
after receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not
constitute a waiver of such Lenders right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than 270 days
prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lenders intention to claim compensation therefor; provided further that, if the Change in
Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.13. Break Funding Payments. In the event of (a) the payment of any principal of any Eurodollar Loan other than on
the last day of an Interest Period applicable thereto (including as a result of an Event of Default or as a result of any prepayment pursuant to Section 2.06), (b) the conversion of any Eurodollar Loan other than on the last day of the
Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under
Section 2.06(a) and is revoked in accordance therewith) or (d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.16, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. Such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender
to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for the period from the
date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for deposits in the relevant currency of a comparable amount and period from
other banks in the Eurodollar market. A certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within ten days after receipt thereof.
25
SECTION 2.14. Taxes. (a) Payments Free of Taxes. Any and all payments by
or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an
applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full
amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such
deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.14) the applicable Recipient receives an amount equal to the sum it would have received had no such
deduction or withholding been made.
(b) Payment of Other Taxes by the Borrower. The Borrower shall timely pay to the relevant
Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for, Other Taxes.
(c) Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to
this Section 2.14, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(d) Indemnification by the Loan Parties. The Loan
Parties shall indemnify each Recipient, within ten days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by
such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender,
shall be conclusive absent manifest error.
(e) Indemnification by the Lenders. Each Lender shall severally indemnify the
Administrative Agent, within ten days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes
and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lenders failure to comply with the provisions of Section 9.04(c) relating to the maintenance of a Participant Register and
(iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not
such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest
error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source
against any amount due to the Administrative Agent under this paragraph (e).
(f) Status of Lenders. (i) Any Lender that is
entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the
Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition,
any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or
the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two
26
sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.14(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required
if in the Lenders reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person:
(A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup
withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the
Borrower or the Administrative Agent), whichever of the following is applicable:
(1) in the case of a Foreign Lender
claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or
reduction of, U.S. Federal withholding Tax pursuant to the interest article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an
exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the business profits or other income article of such tax treaty;
(2) executed originals of IRS Form W-8ECI;
(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of
the Code, (x) a certificate substantially in the form of Exhibit D-1 to the effect that such Foreign Lender is not a bank within the meaning of Section 881(c)(3)(A) of the Code, a 10 percent shareholder of
the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a controlled foreign corporation described in Section 881(c)(3)(C) of the Code (a U.S. Tax Compliance Certificate) and (y) executed
originals of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(4) to the extent a
Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-2 or Exhibit
D-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the
portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative
Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. Federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by
applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
27
(D) if a payment made to a Lender under any Loan Document would be subject to U.S. Federal
withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the
Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by
Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under
FATCA and to determine that such Lender has complied with such Lenders obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), FATCA shall include
any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously
delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(g) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a
refund of any Taxes as to which it has been indemnified pursuant to this Section 2.14 (including by the payment of additional amounts pursuant to this Section 2.14), it shall pay to the indemnifying party an amount equal to such refund
(but only to the extent of indemnity payments made under this Section 2.14 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph
(g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the
contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net
after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with
respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party
or any other Person.
(h) Survival. Each partys obligations under this Section 2.14 shall survive the resignation or
replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
(i) Defined Terms. For purposes of this Section 2.14, the term applicable law includes FATCA.
(j) FATCA. Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the Amendment No. 1 Effective
Date, the Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a grandfathered obligation within the meaning of Treasury Regulation
Section 1.1471-2(b)(2)(i).
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest or fees, or of amounts payable
under Section 2.12, 2.13 or 2.14, or otherwise) prior to 1:00 p.m., New York City time on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have
28
been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at 10 South Dearborn
Street, Chicago, Illinois 60603 and except that payments pursuant to Sections 2.12, 2.13, 2.14 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments denominated in the same
currency received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to
such parties, and (ii) second, towards payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of
this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which
the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed
to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail
to make any payment required to be made by it pursuant to Section 2.05(c), 2.04(b), 2.15(d) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter
received by the Administrative Agent for the account of such Lender and for the benefit of the Administrative Agent to satisfy such Lenders obligations to it under such Section until all such unsatisfied obligations are fully paid and/or
(ii) hold any such amounts in a segregated account over which the Administrative Agent shall have exclusive control as cash collateral for, and application to, any future funding obligations of such Lender under any such Section; in the case of
each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
SECTION 2.16. Mitigation Obligations; Replacement of Lenders. (a) If any Lender requests compensation under
Section 2.12, or the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.14, then such Lender shall (at the request of the
Borrower) use reasonable efforts to designate a different lending office for
29
funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.12 or 2.14, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b) If (i) any Lender requests compensation under Section 2.12, (ii) the Borrower is required to pay any Indemnified Taxes or
additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.14 or (iii) any Lender becomes a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights (other than its existing rights to
payments pursuant to Sections 2.12 or 2.14) and obligations under the Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the
Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans,
accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and (iii) in
the case of any such assignment resulting from a claim for compensation under Section 2.12 or payments required to be made pursuant to Section 2.14, such assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 2.17. Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a
Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to
accrue on the Commitment of such Defaulting Lender pursuant to Section 2.09(a); and
(b) the Commitment and Loans of such Defaulting
Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that, except
as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected
thereby.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders, as of the Effective Date (other than with respect to Section 3.16) and as of the
Closing Date, that:
SECTION 3.01. Organization; Powers; Subsidiaries. Each of the Borrower and its Subsidiaries is
(a) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has all requisite power and authority to carry on its business as now conducted and (c) except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required. As of the
Effective Date, Schedule 3.01 hereto identifies each Subsidiary, noting whether such Subsidiary is a Material Domestic Subsidiary, the jurisdiction of its incorporation or organization, as the case may be, the percentage of issued and
outstanding shares of each class of its capital stock or other equity interests owned by the Borrower and the other Subsidiaries and, if such percentage is not 100% (excluding directors qualifying shares as required by law), a description of
each class issued and outstanding. All of the outstanding shares of capital stock and other equity interests of each Subsidiary are validly issued and outstanding and fully paid and nonassessable and all such
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shares and other equity interests indicated on Schedule 3.01 as owned by the Borrower or another Subsidiary are owned, beneficially and of record, by the Borrower or any Subsidiary free
and clear of all Liens. There are no outstanding commitments or other obligations of the Borrower or any Subsidiary to issue, and no options, warrants or other rights of any Person to acquire, any shares of any class of capital stock or other equity
interests of the Borrower or any Subsidiary, excluding (i) equity awards under employee or director compensation plans, (ii) shares subject to purchase under the Borrowers employee stock purchase plan, (iii) shares issuable upon
conversion of the Existing Convertible Notes, and (iv) shares issuable upon exercise of warrants issued by the Borrower in connection with the issuance of the Existing Convertible Notes.
SECTION 3.02. Authorization; Enforceability. The Transactions to which each Loan Party is a party are within such Loan
Partys organizational powers and have been duly authorized by all necessary organizational actions and, if required, actions by equity holders. The Loan Documents to which each Loan Party is a party have been duly executed and delivered by
such Loan Party and constitute a legal, valid and binding obligation of such Loan Party, enforceable 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.
SECTION 3.03. Governmental Approvals; No Conflicts. The execution, delivery and performance by the Loan Parties of the Loan
Documents (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational documents of the Borrower or any other Loan Party or any order of any Governmental Authority, (c) will not violate or result in a default under any material indenture
or other material agreement or material instrument binding upon the Borrower or any of its Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by the Borrower or any of its Subsidiaries, and (d) will
not result in the creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 3.04.
Financial Condition; No Material Adverse Change. (a) (i) The Borrower has heretofore furnished to the Lenders or filed for public availability on the SECs Electronic Data Gathering and Retrieval System its consolidated balance
sheet and statements of income, stockholders equity and cash flows as of and for the fiscal year ended June 28, 2015 reported on by Ernst & Young LLP, independent public accountants and (ii) such financial statements present
fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP.
(b) Since June 28, 2015, there has been no material adverse change in the business, assets, operations or condition (financial or
otherwise) of the Borrower and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Borrower
and its Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property material to the Borrower and its Subsidiaries, taken as a whole, except for defects in title that do not materially interfere with the
ability of the Borrower and its Subsidiaries taken as a whole to conduct their business as currently conducted or to utilize such properties for their intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to the Borrower and its Subsidiaries, taken as a whole, and the use thereof by the Borrower and its Subsidiaries does not infringe upon the rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06.
Litigation, Environmental and Labor Matters. (a) Except as set forth on Schedule 3.06, on the Effective Date there are no actions, suits, proceedings or investigations by or before any arbitrator or Governmental Authority pending
against or, to the knowledge of the Borrower, threatened against or affecting the Borrower or any of its Subsidiaries (i) that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or
(ii) that involve this Agreement or the Transactions.
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(b) Except with respect to any matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) There are no strikes, lockouts or slowdowns against the Borrower or any of its Subsidiaries pending and, to their
knowledge, none are threatened, in each case, that would be material to the Borrower and its Subsidiaries taken as a whole. The hours worked by and payments made to employees of the Borrower and its Subsidiaries have not been in violation of the
Fair Labor Standards Act or any other applicable Federal, state, local or foreign law relating to such matters except as, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. All material
payments due from the Borrower or any of its Subsidiaries, or for which any claim may be made against the Borrower or any of its Subsidiaries, on account of wages and employee health and welfare insurance and other benefits, have been paid or
accrued as liabilities on the books of the Borrower or such Subsidiary except as, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. The consummation of the Transactions will not give rise to
any right of termination or right of renegotiation on the part of any union under any collective bargaining agreement under which the Borrower or any of its Subsidiaries is bound.
SECTION 3.07. Compliance with Laws and Agreements. Each of the Borrower and its Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or its property, except where the failure to do so, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.08. Margin Regulations; Investment Company
Status. (a) Neither the Borrower nor any of its Subsidiaries is engaged or will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by
the Board), or extending credit for the purpose of purchasing or carrying margin stock.
(b) Neither the Borrower nor any of its
Subsidiaries is an investment company as defined in, or subject to regulation under, the Investment Company Act of 1940.
SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such
ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11. Disclosure. Neither the Information Memorandum nor any of the other written reports, financial statements,
certificates or other information furnished by or on behalf of the Borrower or any Subsidiary to the Administrative Agent or any Lender in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that,
with respect to (i) the Acquired Business, such representation shall, until and including the Closing Date, be made to the Borrowers knowledge and (ii) projected financial information and other forward-looking information, the
Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.12. Federal Reserve Regulations. No part of the proceeds of any Loan have been used or will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X.
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SECTION 3.13. Liens. There are no Liens on any of the real or personal properties of
the Borrower or any Subsidiary except for Liens permitted by Section 6.02.
SECTION 3.14. No Default. No Default or Event
of Default has occurred and is continuing.
SECTION 3.15. Anti-Corruption Laws and Sanctions. The Borrower has implemented and
maintains in effect policies and procedures designed to reasonably ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the
Borrower, its Subsidiaries and their respective officers and employees and to the knowledge of the Borrower its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the
Borrower, any Subsidiary or to the knowledge of the Borrower or such Subsidiary any of their respective directors, officers or employees, or (b) to the knowledge of the Borrower, any agent of the Borrower or any Subsidiary that will act in any
capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing, use of proceeds or other Transactions will violate Anti-Corruption Laws or applicable Sanctions.
SECTION 3.16. Solvency. The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and
the making of the Loans and the application of proceeds thereof, on a consolidated basis, Solvent.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The Lenders Commitments shall not become effective hereunder unless all of the following
conditions precedent have been satisfied (or waived in accordance with Section 9.02) on or prior to the Commitment Termination Date:
(a) The Administrative Agent shall have received (i) a counterpart of this Agreement and each other Loan Document signed on behalf of
each party hereto and thereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement and each other Loan Document) that each party hereto has signed a counterpart of this Agreement and
each other Loan Document.
(b) Certified copies of the resolutions of the Board of Directors of the Borrower and each Subsidiary Guarantor
approving, and authorizing the execution, delivery and performance of, this Agreement, each other Loan Document and of all documents evidencing other necessary corporate actions and governmental approvals, if any, with respect to this Agreement and
each other Loan Documents.
(c) A certificate of the Secretary or an Assistant Secretary of the Borrower and each Subsidiary Guarantor
certifying the Borrowers and such Subsidiary Guarantors certificate of incorporation and by-laws, as applicable, and certifying the names and true signatures of the officers of the Borrower and each Subsidiary Guarantor, as applicable,
authorized to sign this Agreement and each other Loan Document.
(d) A certificate from the relevant Governmental Authority dated as of a
date reasonably close to the date of such effectiveness as to the good standing of and charter documents filed by the Borrower and each Subsidiary Guarantor.
(e) All costs, fees, expenses (including, without limitation, legal fees and expenses) to the extent invoiced at least two Business Days prior
to the Effective Date and the fees contemplated by the Fee Letters payable to the Arrangers, the Administrative Agent or the Lenders shall have been paid on or prior to the Effective Date, in each case, to the extent required by the Fee Letters or
this Agreement to be paid on or prior to the Effective Date.
Promptly upon the occurrence thereof, the Administrative Agent shall notify
the Borrower and the Lenders as to the Effective Date, and such notice shall be conclusive and binding.
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SECTION 4.02. Conditions Precedent to the Closing Date. The Lenders obligations
to make Loans shall be subject to all of the following conditions precedent having been satisfied (or waived in accordance with Section 9.02) on or prior to the Commitment Termination Date:
(a) The Effective Date shall have occurred.
(b) The Acquisition shall have been (or, substantially contemporaneously with the Borrowing, will be) consummated pursuant to the Acquisition
Agreement without giving effect to any modifications, consents, amendments or waivers thereto that in each case are materially adverse to the interests of the Lenders or the Arrangers, unless the Arrangers shall have provided their written consent
thereto (it being understood that any change in the purchase consideration of less than 5% in respect of the Acquisition will be deemed not to be materially adverse to the Lenders and the Arrangers).
(c) Except (i) as disclosed in the Company SEC Reports filed on or after June 30, 2015 and prior to the date of the Acquisition
Agreement (including exhibits and other information incorporated by reference therein, but excluding any amendment thereto made after the date of the Acquisition Agreement or any forward looking disclosures set forth in any risk factors
section, any disclosures in any forward looking statements section and any other disclosures included therein to the extent they are predictive or forward-looking in nature); or (ii) as set forth in the Company Disclosure Letter (as
defined in the Acquisition Agreement as of October 20, 2015 and provided to the Arrangers on such date), since June 30, 2015, there has not been any event, condition, circumstance, development, change or effect having, or that would
reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect.
(d) The Administrative Agent shall
have received (except to the extent not required by the Administrative Agent) (i) audited financial statements of the Borrower for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date; (ii) unaudited
financial statements of the Borrower for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than
40 days prior to the Closing Date and (iii) audited and unaudited financial statements of the Acquired Business (and any other recent, probable or pending acquisitions) and customary pro forma financial statements of the Borrower giving effect
to the Transactions (and such other acquisitions), in each case as required by Rule 3-05 and Article 11 of Regulation S-X under the Securities Act, regardless of when the Borrower is required to file such financial statements, and in each of
(i) through (iii) meeting the requirements of Regulation S-X under the Securities Act. The Administrative Agent hereby acknowledges that the Borrowers public filing with the SEC under
the Securities Exchange Act of 1934, as amended, of any required financial statements will satisfy the requirements of this paragraph.
(e) All costs, fees, expenses (including, without limitation, legal fees and expenses) to the extent invoiced at least two Business Days prior
to the Closing Date and the fees contemplated by the Fee Letters payable to the Arrangers, the Administrative Agent or the Lenders shall have been paid on or prior to the Closing Date, in each case, to the extent required by the Fee Letters or this
Agreement to be paid on or prior to the Closing Date.
(f) The Administrative Agent shall have received at least three Business Days prior
to the Closing Date all documentation and other information regarding the Borrower and the Guarantors required by bank regulatory authorities under applicable know-your-customer and anti-money laundering rules and regulations, including
the Patriot Act to the extent reasonably requested at least 10 Business Days prior to the Closing Date.
(g) The Administrative Agent
shall have received customary legal opinions from Jones Day or other counsel reasonably acceptable to the Administrative Agent, in customary form and substance reasonably satisfactory to the Administrative Agent and the Borrower.
(h) At the time of and upon giving effect to the borrowing and application of Loans on the Closing Date, (i) the Acquisition
Representations and the Specified Representations shall be true and correct, in all (except to the extent already qualified by materiality or material adverse effect) material respects and (ii) there shall not exist any Default or Event of
Default, in each case, pursuant to Sections 7.01(a), 7.01(b), 7.01(d) (solely with respect to Sections 5.03 (with respect to the Borrowers existence) and 5.08 and Article VI (other than Section 6.05)), 7.01(f), 7.01(g), 7.01(h), 7.01(i),
7.01(m) and 7.01(o).
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(i) The Administrative Agent shall have received (in each case dated as of the Closing Date)
(i) an officers certificate from the Borrower that there has been no change to the matters previously certified pursuant to Sections 4.01(b), (c) and (d) (or otherwise providing updates to such certifications) and that the
conditions precedent contained in Sections 4.02(b) and (h) have been satisfied as of the Closing Date, and (ii) a Solvency Certificate from the chief financial officer of the Borrower substantially in the form of Exhibit B hereto.
(j) The Administrative Agent shall have received a Borrowing Request in accordance with Section 2.03.
SECTION 4.03. Determinations under Section 4.01 and 4.02. For the purposes of determining whether the conditions precedent
specified in Sections 4.01 and 4.02 have been satisfied, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with each document or other matter required thereunder to be consented to, approved by, acceptable to or
satisfactory to the Lenders, unless the Administrative Agent shall have received notice from such Lender prior to the Effective Date or the Closing Date, as applicable, specifying its objection thereto.
ARTICLE V
Affirmative
Covenants
Until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable
hereunder shall have been paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial
Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the
end of each fiscal year of the Borrower (or, if earlier, by the date that the Annual Report on Form 10-K of the Borrower for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic
extension available thereunder for the filing of such form), its audited consolidated balance sheet and related statements of operations, stockholders equity and cash flows as of the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported on by Ernst & Young LLP or other independent public accountants of recognized national standing (without a going concern or like qualification or exception
and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 60 days after the end of each
of the first three fiscal quarters of each fiscal year of the Borrower (or, if earlier, by the date that the Quarterly Report on Form 10-Q of the Borrower for such fiscal quarter would be required to be filed under the rules and regulations of the
SEC, giving effect to any automatic extension available thereunder for the filing of such form), its consolidated balance sheet and related statements of operations, stockholders equity and cash flows as of the end of and for such fiscal
quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all
certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial
statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.05 and (iii) stating whether
35
any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying
the effect of such change on the financial statements accompanying such certificate;
(d) promptly after the same become publicly
available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any
national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(e) promptly after
Moodys or S&P shall have announced a change in the applicable rating established or deemed to have been established for the Index Debt Rating, written notice of such rating change; and
(f) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request.
Documents
required to be delivered pursuant to clauses (a), (b) and (d) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public
availability on the SECs Electronic Data Gathering and Retrieval System. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the compliance certificates required by clause
(c) of this Section 5.01 to the Administrative Agent.
SECTION 5.02. Notices of Material Events. The Borrower will
furnish to the Administrative Agent and each Lender prompt written notice of the following after a Responsible Officer of the Borrower obtains knowledge thereof:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting
the Borrower or any Affiliate thereof that could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any
ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect; and
(d) any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other executive officer of the Borrower setting forth
the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will cause each of its Material Subsidiaries to, do or cause
to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, qualifications, licenses, permits, privileges, franchises, governmental authorizations and intellectual property rights material
to the Borrower and its Subsidiaries, taken as a whole, and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted except where the failure to do so could not reasonably be expected to result
in a Material Adverse Effect; provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03.
SECTION 5.04. Payment of Obligations. The Borrower will, and will cause each of its Subsidiaries to, pay its obligations,
including Tax liabilities, that, if not paid, could reasonably be expected to result in a Material Adverse Effect before the same shall become delinquent or in default, except where (a) the validity or amount thereof is being contested in good
faith by appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending such contest could not reasonably
be expected to result in a Material Adverse Effect.
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SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will, and will cause
each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted except where the failure to do so could not, individually or in the
aggregate, reasonably be expect to result in a Material Adverse Effect, and (b) maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are, in all material respects, customarily
maintained by companies engaged in the same or similar businesses operating in the same or similar locations.
SECTION 5.06. Books
and Records; Inspection Rights. The Borrower will, and will cause each of its Subsidiaries to, keep proper books of record and account in which customary entries are made of dealings and transactions in relation to its business and activities,
which entries will be full, true and correct in all material respects. The Borrower will, and will cause each of its Subsidiaries to, permit any representatives designated by the Administrative Agent, upon reasonable prior notice, to visit and
inspect its properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times and as often as reasonably requested;
provided that so long as no Event of Default has occurred and is then continuing, the Borrower shall not be responsible for the costs and expenses of the Administrative Agent for more than one such visit, inspection or examination in any
calendar year. The Borrower acknowledges that the Administrative Agent, after exercising its rights of inspection, may prepare and distribute to the Lenders certain reports pertaining to the Borrower and its Subsidiaries assets for internal
use by the Administrative Agent and the Lenders.
SECTION 5.07. Compliance with Laws and Material Contractual Obligations. The
Borrower will, and will cause each of its Subsidiaries to, (i) comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property (including without limitation Environmental Laws) and
(ii) perform in all material respects its obligations under material agreements to which it is a party, in the case of clauses (i) and (ii), except where the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. The Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents
with Anti-Corruption Laws and applicable Sanctions.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used
only to finance the Acquisition and to pay fees and expenses in connection therewith. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board,
including Regulations T, U and X. The Borrower will not request any Borrowing, and the Borrower shall not use, and shall maintain in effect and enforce policies and procedures designed to reasonably ensure that its Subsidiaries and its or their
respective directors, officers, employees and agents shall not use, the proceeds of any Borrowing (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any
Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country or (iii) in any manner that
would result in the violation of any Sanctions applicable to any party hereto.
SECTION 5.09. Subsidiary Guaranty. As promptly
as possible but in any event within 30 days (or such later date as may be agreed upon by the Administrative Agent) after any Person becomes a Subsidiary or any Subsidiary qualifies independently as, or is designated by the Borrower or the
Administrative Agent as, a Subsidiary Guarantor pursuant to the definition of Material Domestic Subsidiary, the Borrower shall provide the Administrative Agent with written notice thereof and shall cause each such Subsidiary which also
qualifies as a Material Domestic Subsidiary to deliver to the Administrative Agent a joinder to the Subsidiary Guaranty (in the form contemplated thereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions thereof, such
Subsidiary Guaranty to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
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ARTICLE VI
Negative Covenants
Until
the Commitments have expired or terminated and the principal of and interest on each Loan and all fees payable hereunder have been paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Subsidiary Indebtedness. The Borrower will not permit any Subsidiary to create, incur, assume or permit to exist any
Indebtedness, except:
(a) the Obligations;
(b) Indebtedness of any Subsidiary existing on the date hereof and set forth in Schedule 6.01 and extensions, renewals and replacements
of any such Indebtedness with Indebtedness that does not increase the outstanding principal amount thereof;
(c) Indebtedness of any
Subsidiary to the Borrower or any other Subsidiary;
(d) Guarantees by any Subsidiary of Indebtedness of the Borrower or any other
Subsidiary;
(e) Indebtedness of any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any
such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and
(ii) the aggregate principal amount of Indebtedness permitted by this clause (e) shall not exceed $150,000,000 at any time outstanding;
(f) Indebtedness of any Subsidiary as an account party in respect of trade letters of credit;
(g) the Novellus Convertible Notes and extensions, renewals and replacements of any such Indebtedness with Indebtedness of a similar type that
does not increase the outstanding principal amount thereof;
(h) Indebtedness of any Subsidiary that is a Loan Party so long as, at the
time of the incurrence thereof and after giving effect thereto (on a pro forma basis), the Borrower is in pro forma compliance with the Capitalization Covenant or the Leverage Covenant, as determined to be applicable pursuant to
Section 6.05(a);
(i) Indebtedness of any Subsidiary that is not a Loan Party so long as the aggregate outstanding principal amount
of such Indebtedness, when aggregated with the aggregate outstanding principal amount of Indebtedness and other obligations permitted by Section 6.02(e), does not exceed 7.5% of Consolidated Total Assets (calculated as of the most recently
ended fiscal quarter and determined at the time of the incurrence of such Indebtedness by reference to the Borrowers financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the
delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a)) at any time outstanding; and
(j) Indebtedness of the Target and its subsidiaries, and any extensions, renewals and replacements of any such Indebtedness with Indebtedness
that does not increase the outstanding principal amount thereof; provided that (A) such original Indebtedness exists on the Closing Date and is not created in contemplation of or in connection with the Acquisition and (B) until such
time as the Target and each of its subsidiaries which is an obligor with respect to such Indebtedness have become Loan Parties, neither the Borrower nor any Subsidiary (other than the Target and its subsidiaries which are obligors with respect to
such original Indebtedness) shall Guarantee or otherwise become liable (except in the case of such Indebtedness under letters of credit which are outstanding on the Closing Date) for the payment of such Indebtedness.
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SECTION 6.02. Liens. The Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any Subsidiary existing on the date hereof and set forth in
Schedule 6.02; provided that (i) such Lien shall not apply to any other property or asset of the Borrower or any Subsidiary and (ii) such Lien shall secure only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;
(c) any Lien existing on any
property or asset prior to the acquisition thereof by the Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of the
Borrower or any Subsidiary and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be, and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; provided that (i) in the case of any Subsidiary, such security interests secure Indebtedness permitted by clause (e) of Section 6.01, (ii) such security interests and the
Indebtedness secured thereby are incurred prior to or within ninety (90) days after such acquisition or the completion of such construction or improvement, (iii) the Indebtedness secured thereby does not exceed the cost of acquiring,
constructing or improving such fixed or capital assets and (iv) such security interests shall not apply to any other property or assets of the Borrower or any Subsidiary; and
(e) Liens on assets of the Borrower and its Subsidiaries not otherwise permitted above so long as the aggregate outstanding principal amount
of the Indebtedness and other obligations subject to such Liens, when aggregated with the aggregate outstanding principal amount of Indebtedness permitted by Section 6.01(i), does not at any time exceed 7.5% of Consolidated Total Assets
(calculated as of the most recently ended fiscal quarter and determined at the time of the incurrence of such Indebtedness by reference to the Borrowers financial statements most recently delivered pursuant to Section 5.01(a) or
(b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a)) at any time outstanding.
SECTION 6.03. Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Subsidiary to, merge
into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) any of its assets (including pursuant to
a Sale and Leaseback Transaction), or any of the Equity Interests of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect
thereto no Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the
Borrower is the surviving corporation;
(ii) any Subsidiary may merge into any Person that either is a Subsidiary, or becomes a
Subsidiary as a result of such transaction (provided that any such merger involving a Subsidiary that is a Loan Party must result in such Loan Party as the surviving entity and any such merger involving the Borrower must result in the
Borrower as the surviving entity);
(iii) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to a Loan Party;
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(iv) the Borrower and its Subsidiaries may (A) sell inventory in the ordinary course of
business, (B) effect sales, trade-ins or dispositions of used equipment in the ordinary course of business consistent with past practice, (C) enter into licenses of technology in the ordinary course of business, and (D) make any other
sales, transfers, leases or dispositions that, together with all other property of the Borrower and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (D) during any fiscal year of the Borrower, does not exceed
10% of Consolidated Total Assets (calculated as of the most recently ended fiscal quarter and determined at the time of the incurrence of such Indebtedness by reference to the Borrowers financial statements most recently delivered pursuant to
Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a)); and
(v) any Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders.
(b) The Borrower will not, and
will not permit any of its Subsidiaries to, engage to any material extent in any business other than (i) businesses of the type conducted by the Borrower, the Target and their respective subsidiaries on the date of execution of this Agreement,
(ii) other technology-related businesses, and (iii) businesses reasonably related to clauses (i) or (ii).
SECTION 6.04. Transactions with Affiliates. The Borrower will not, and will not permit any of its Subsidiaries to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (a) in the ordinary course of business at
prices and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be obtained on an arms-length basis from unrelated third parties and (b) transactions between or among the Borrower and its wholly owned
Subsidiaries not involving any other Affiliate.
SECTION 6.05. Financial Covenants.
(a) Maximum Total Indebtedness to Capitalization Ratio. The Borrower will not permit the ratio, determined as of the end of each of its
fiscal quarters ending on and after the Closing Date, of (i) Consolidated Total Indebtedness to (ii) Consolidated Capitalization to be greater than 0.50 to 1.00 (the Capitalization Covenant); provided that if, as
of the end of the first fiscal quarter following the Closing Date, the Borrower is not in compliance with the Capitalization Covenant, the Borrower shall be deemed not to have violated the Capitalization Covenant so long as the Borrower does not
permit the ratio, determined at the end of each of its fiscal quarters, of (i) Consolidated Total Indebtedness to (ii) Consolidated Adjusted EBITDA for the four fiscal quarter period then ended to be greater than 4.50 to 1.00 (the
Leverage Covenant). The Leverage Covenant shall be tested in lieu of the Capitalization Covenant until and including the earlier of (x) the end of the first two consecutive full fiscal quarters commencing following the
Closing Date that the Borrower is in compliance with the Capitalization Covenant and (y) December 31, 2017.
(b) Minimum
Liquidity. The Borrower will not permit Liquidity, determined as of the end of each of its fiscal quarters ending on and after the Closing Date, to be less than $1,000,000,000; provided that in addition to the foregoing, the Borrower
shall not permit Liquidity to be less than $1,000,000,000 at the time of, and immediately after giving effect (including giving effect on a pro forma basis) to, any repayment or prepayment of Indebtedness of the Borrower or any Subsidiary in an
amount greater than $200,000,000.
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default. If any of the following events (Events of Default) shall occur:
(a) the Borrower shall fail to pay any principal of any Loan when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
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(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other
than an amount referred to in clause (a) of this Section 7.01) payable under this Agreement or any other Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of three
Business Days;
(c) any representation or warranty made or deemed made by or on behalf of the Borrower or any Subsidiary in or in
connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in
connection with this Agreement or any other Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02, 5.03 (with respect to
the Borrowers existence), 5.08 or 5.09, in Article VI or in Article X;
(e) the Borrower or any Subsidiary Guarantor,
as applicable, shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clauses (a), (b) or (d) of this Section 7.01) or any other Loan Document, and such failure
shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of
any Material Indebtedness, when and as the same shall become due and payable;
(g) any event or condition occurs that results in any
Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or
their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to (x) secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness or (y) any redemption, repurchase, conversion or settlement with respect to any Convertible Debt pursuant to its
terms unless such redemption, repurchase, conversion or settlement results from a default thereunder or an event of the type that constitutes an Event of Default;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Borrower or any Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Subsidiary shall
(i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect,
(ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Section 7.01, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
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(k) one or more judgments for the payment of money in an aggregate amount in excess of
$150,000,000 shall be rendered against the Borrower, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be
legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) the occurrence of any default, as defined in any Loan Document (other than this Agreement) or the breach of any of the terms
or provisions of any Loan Document (other than this Agreement), which default or breach continues beyond any period of grace therein provided; or
(o) any material provision of any Loan Document for any reason ceases to be valid, binding and enforceable in accordance with its terms (or
the Borrower or any Subsidiary shall challenge the enforceability of any Loan Document or shall assert in writing, or engage in any action or inaction based on any such assertion, that any provision of any of the Loan Documents has ceased to be or
otherwise is not valid, binding and enforceable in accordance with its terms);
then, and in every such event (other than an event with respect to the
Borrower described in clauses (h) or (i) above), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (x) at any time prior to the Closing Date during which an Event of Default pursuant to clauses (a), (b), (h) or (i) above has occurred and is continuing, terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (y) at any time on or following the Closing Date during which any Event of Default has occurred and is continuing, declare the Loans then outstanding to be due and
payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other Obligations of the Borrower accrued hereunder and under the other Loan Documents, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and in case of any event with respect to the Borrower described in clauses (h) or (i) above, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with
accrued interest thereon and all fees and other Obligations accrued hereunder and under the other Loan Documents, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and remedies provided to the Administrative Agent
under the Loan Documents or at law or equity.
ARTICLE VIII
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such
actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental
thereto.
The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any
other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
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The Administrative Agent shall not have any duties or obligations except those expressly set
forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing,
(b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the
Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank
serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any
Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by
it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and
shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative Agent as
provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor.
If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agents resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of
them while it was acting as Administrative Agent.
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Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial
loans and not investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold Loans
hereunder. Each Lender shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United
States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder and in deciding whether or to the extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder.
None of the Lenders or other Persons, if any, identified in this Agreement as an Arranger, Syndication Agent or Documentation Agent shall have
any right, power, obligation, liability, responsibility or duty under this Agreement other than, in the case of such Lenders, those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders or such other Persons shall
have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders and such other Persons in their respective capacities as Arranger, Syndication Agent or
Documentation Agent, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph.
The Lenders are not
partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the
exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) Except in the case of notices and other communications expressly permitted to be given by
telephone (and subject to paragraph (b) below), 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, as follows:
(i) if to the Borrower, to it at Lam Research Corporation, 4650 Cushing Parkway, Fremont, California 94538,
Attention of Odette Go, Treasurer, (Telecopy No. 510-572-1586; Telephone No. 510-572-5151; electronic mail address: treasuryorg@lamresearch.com);
(ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., 10 South Dearborn Street, Chicago, Illinois 60603, Attention of April Yebd
(Telecopy No. 888-292-9533; Telephone No. 312-732-2628; electronic mail address: april.yebd@jpmorgan.com and JPM.agency.cri@jpmorgan.com), with a copy to JPMorgan Chase Bank, N.A., 1301 2nd Avenue, Floor 25, Seattle, Washington 98101,
Attention of Timothy Lee (electronic email address: timothy.d.lee@jpmorgan.com); and
(iii) if to any other Lender, to it at its address
(or telecopy number) set forth in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given
at the opening of business on the next business day for the recipient). Notices delivered through Electronic Systems (including via electronic mail), to the extent provided in paragraph (b) below, shall be effective as provided in said
paragraph (b).
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(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
using Electronic Systems pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable
Lender. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such
procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices
and other communications sent to an e-mail address shall be deemed received upon the senders receipt of an acknowledgement from the intended recipient (such as by the return receipt requested function, as available, return e-mail
or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing
clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent
during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
(c) Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.
(d) Electronic Systems.
(i) The Borrower agrees that the Administrative Agent may, but shall not be obligated to, make Communications (as defined below) available to
the Lenders by posting the Communications on Debt Domain, Intralinks, Syndtrak, ClearPar or a substantially similar Electronic System.
(ii) Any Electronic System used by the Administrative Agent is provided as is and as available. The Agent Parties (as
defined below) do not warrant the adequacy of such Electronic Systems and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty
of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or any Electronic System. In no event shall
the Administrative Agent or any of its Related Parties (collectively, the Agent Parties) have any liability to any Loan Party, any Lender or any other Person or entity for damages of any kind, including, without limitation, direct
or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Partys or the Administrative Agents transmission of Communications through an Electronic
System. Communications means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated
therein which is distributed by the Administrative Agent, any Lender by means of electronic communications pursuant to this Section, including through an Electronic System.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative Agent or any Lender in exercising any right
or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any
other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and
then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan shall not be construed as a waiver of any Default, regardless of
whether the Administrative Agent or any Lender may have had notice or knowledge of such Default at the time.
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(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders; provided that no such agreement shall
(i) increase the Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal amount of any Loan or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of
each Lender directly affected thereby, (iii) postpone the scheduled date of payment of the principal amount of any Loan, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.15(b) or (d) in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Lender, (v) change any of the provisions of this Section or the definition of Required Lenders or any other provision hereof specifying the number or percentage of Lenders
required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender or (vi) release the Company from its obligations under Article X or release all
or substantially all of the Subsidiary Guarantors from their obligations under the Subsidiary Guaranty, in each case, without the written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent hereunder without the prior written consent of the Administrative Agent (it being understood that any change to Section 2.22 shall require the consent of the Administrative Agent). At the
Borrowers option, any amendment, waiver or modification may apply to only one Class, in which case only the specified number or percentage of Lenders of such Class shall be needed to approve such amendment, waiver or modification (e.g., the
Required Lenders of that Class or all Lenders of that Class, as applicable); provided that any such amendment, waiver or modification that provides Guarantees and/or collateral to one Class and not the other prior to the Maturity Date of the
other Class shall require the consent of the Required Lenders of both Classes voting together. Notwithstanding the foregoing, no consent with respect to any amendment, waiver or other modification of this Agreement shall be required of any
Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clause (i), (ii) or (iii) of the first proviso of this paragraph and then only in the event such Defaulting Lender shall be directly
affected by such amendment, waiver or other modification.
(c) If, in connection with any proposed amendment, waiver or consent requiring
the consent of each Lender or each Lender directly affected thereby, the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is
necessary but not obtained being referred to herein as a Non-Consenting Lender), then the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently with such
replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower and the Administrative Agent shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender
pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause
(b) of Section 9.04, and (ii) the Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) the outstanding principal amount of its Loans and all interest, fees and other amounts then
accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.12 and 2.14, and (2) an amount, if
any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.13 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender.
(d) Notwithstanding anything to the contrary herein the Administrative Agent may, with the consent of the Borrower only, amend, modify or
supplement this Agreement or any of the other Loan Documents to cure any ambiguity, omission, mistake, defect or inconsistency.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) 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 and the Arrangers, in connection with the syndication and distribution (including, without
limitation, via the internet or through a service such as Intralinks) of the credit facilities provided for herein, the preparation and administration of this Agreement and the other 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) and (ii) all out-of-pocket expenses incurred by the
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Administrative Agent, any Arranger or any Lender, including the reasonable fees, charges and disbursements of any counsel for the Administrative Agent, any Arranger or any Lender, in connection
with the enforcement or protection of its rights in connection with this Agreement and any other Loan Document, including its rights under this Section, or in connection with the Loans made, including all such out-of-pocket expenses incurred during
any workout, restructuring or negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Administrative Agent, each
Arranger, each Syndication Agent, each Documentation Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an Indemnitee) against, and hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities, cost and related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of any Loan Document or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan or the use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by the Borrower or any of its Subsidiaries, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith or
willful misconduct of such Indemnitee or material breach of the Loan Documents by such Indemnitee or (B) arise from disputes among such Indemnitees other than any claims against the Administrative Agent in its capacity or in fulfilling its role
as agent with respect to the Loans and other than any claims arising out of any act or omission on the part of the Borrower or its Affiliates; provided, that any legal expenses shall be limited to one counsel for all Indemnitees taken as a
whole and if reasonably necessary, a single local counsel for all Indemnitees taken as a whole in each relevant jurisdiction (which may be a single local counsel acting in multiple jurisdictions) and, solely in the case of an actual or perceived
conflict of interest, one additional counsel in each relevant jurisdiction to each group of affected Indemnitees similarly situated taken as a whole. This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent
losses, claims or damages arising from any non-Tax claim.
(c) To the extent that the Borrower fails to pay any amount required to be paid
by it to the Administrative Agent under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent such Lenders ratable share (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount (it being understood that the Borrowers failure to pay any such amount shall not relieve the Borrower of any default in the payment thereof); provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, neither the Borrower nor any Indemnitee shall assert, and each of the Borrower and the
Administrative Agent hereby waives, on its own behalf and on behalf of its Related Parties, any claim against any Indemnitee (in the case of such waiver by the Borrower) or against the Borrower (in the case of such waiver by any Indemnitee)
(i) for any damages arising from the use by others of information or other materials obtained through telecommunications, electronic or other information transmission systems (including the Internet), or (ii) on any theory of liability,
for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or
thereby, the Transactions, any Loan or the use of the proceeds thereof; provided that nothing contained in this Section 9.03(d) shall limit the Borrowers indemnification obligations set forth in Section 9.03(b).
(e) All amounts due under this Section shall be payable not later than 15 days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby, except that (i)
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the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the
Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Persons (other than an Ineligible
Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or
delayed) of:
(A) the Borrower (provided that the Borrower shall be deemed to have consented to any such assignment unless it
shall object thereto by written notice to the Administrative Agent within ten Business Days after having received notice thereof); provided, further, that no consent of the Borrower shall be required for an assignment to a Lender, an
Affiliate of a Lender, an Approved Fund or, if an Event of Default has occurred and is continuing, any other assignee; and
(B) the
Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining
amount of the assigning Lenders Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be less than $10,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of
Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the
assigning Lenders rights and obligations under this Agreement, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lenders rights and obligations in respect of
one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee of $3,500, such fee to be paid by either the assigning Lender or the assignee Lender or shared between such Lenders; and
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the
assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its affiliates and their Related Parties or their respective securities) will be made
available and who may receive such information in accordance with the assignees compliance procedures and applicable laws, including Federal and state securities laws.
For the purposes of this Section 9.04(b), the terms Approved Fund and Ineligible Institution have the following
meanings:
Approved Fund means any Person (other than a natural person) that is engaged in making, purchasing, holding
or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
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Ineligible Institution means (a) a natural person, (b) a Defaulting
Lender, (c) the Borrower, any of its Subsidiaries or any of its Affiliates, or (d) a company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lenders
rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.12, 2.13, 2.14 and 9.03). Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof
from time to time (the Register). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender
and an assignee, the assignees completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to
such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or
the assignee shall have failed to make any payment required to be made by it pursuant to Section 2.04(b), 2.15(d) or 9.03(c), the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information
therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided
in this paragraph.
(c) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell participations to one or
more banks or other entities (a Participant), other than an Ineligible Institution, in all or a portion of such Lenders rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (A) such Lenders obligations under this Agreement shall remain unchanged; (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and
(C) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lenders rights and obligations under this Agreement. Any agreement or instrument pursuant
to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 9.02(b) that affects such Participant. The Borrower
agrees that each Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14 (subject to the requirements and limitations therein, including the requirements under Section 2.14(f) (it being understood that the documentation
required under Section 2.14(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such
Participant (A) agrees to be subject to the provisions of Sections 2.15 and 2.16 as if it were an assignee under paragraph (b) of this Section; and (B) shall not
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be entitled to receive any greater payment under Sections 2.12 or 2.14, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent
such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. To the extent permitted by law, each Participant also shall be entitled to the benefits of
Section 9.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.15(c) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary
agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participants interest in the Loans or other obligations under the Loan Documents
(the Participant Register); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a
Participants interest in any Commitments, Loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered
form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant
Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility
for maintaining a Participant Register.
(d) Any Lender may at any time pledge or assign a security interest in all or any portion of its
rights under this Agreement to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank or other central banking authority having jurisdiction over such Lender, and this
Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent or any Lender may
have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee
or any other amount payable under this Agreement or any other Loan Document is outstanding and so long as the Commitments have not expired or terminated. The provisions of Sections 2.12, 2.13, 2.14 and 9.03 and Article VIII shall survive and remain
in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Commitments or the termination of this Agreement or any other Loan Document or any
provision hereof or thereof.
SECTION 9.06. Counterparts; Integration; Effectiveness; Electronic Execution. 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. This Agreement, the other Loan Documents
and any separate letter agreements with respect to fees payable to the Administrative Agent constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof. Except as provided in Section 4.01(a), 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 each of the other parties hereto, 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, e-mailed .pdf or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of
this Agreement. The words execution, signed, signature, delivery, and words of like import in or relating to any document to be signed in connection with this Agreement and the transactions
contemplated hereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical
delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
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SECTION 9.07. Severability. Any provision of any Loan Document 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
thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each of its
Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final and in whatever currency denominated) at
any time held and other obligations at any time owing by such Lender or Affiliate to or for the credit or the account of the Borrower or any Subsidiary Guarantor against any of and all of the Obligations held by such Lender, irrespective of whether
or not such Lender shall have made any demand under the Loan Documents and although such obligations may be unmatured. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff) which
such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This Agreement shall
be construed in accordance with and governed by the law of the State of New York; provided, that (i) the interpretation of the definition of Target Material Adverse Effect and whether or not a Target Material Adverse Effect has occurred,
(ii) the determination of the accuracy of any Acquisition Representations and whether as a result of any inaccuracy thereof the Borrower, the Merger Subs or their respective affiliates have the right to terminate their respective obligations
under the Acquisition Agreement, or to decline to consummate the Transactions pursuant to the Acquisition Agreement and (iii) the determination of whether the Transactions have been consummated in accordance with the terms of the Acquisition
Agreement, in each case, shall be governed by, and construed and interpreted solely in accordance with, the laws of the State of Delaware without giving effect to conflicts of laws principles that would result in the application of the law of any
other state.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction
of the Supreme Court of the State of New York sitting in New York County, Borough of Manhattan, and of the United States District Court for the Southern District of New York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan Document shall affect any right that the Administrative Agent or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement or any other Loan Document against any Loan Party or its properties in the courts of any jurisdiction.
(c) The Borrower
hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this
Agreement or any other Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 9.01. Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
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HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. 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 9.12. Confidentiality. Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates directors, officers, partners, members, employees and agents, including accountants, legal counsel, independent auditors and other
advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory
authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other
party to this Agreement, (e) in connection with the exercise of any remedies under this Agreement or any other Loan Document or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or
obligations under this Agreement, (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations or (iii) any credit insurance provider relating to the
Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section, (ii) becomes available to the
Administrative Agent or any Lender on a non-confidential basis from a source other than the Borrower or (iii) was already lawfully in the Lenders possession on a non-confidential basis or is independently developed by the Lender. For the
purposes of this Section, Information means all information received from the Borrower relating to the Borrower or its business, other than any such information that is available to the Administrative Agent or any Lender on a
non-confidential basis prior to disclosure by the Borrower. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised
the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. In addition, the Administrative Agent, each Arranger and each Lender may disclose the existence of this
Agreement and the information about this Agreement to market data collectors, similar services providers to the lending industry, and service providers to the Administrative Agent, each Arranger and the Lenders in connection with the administration
and management of this Agreement and the other Loan Documents.
EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN THE IMMEDIATELY
PRECEDING PARAGRAPH FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES
REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN
THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER, THE OTHER LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH
LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT
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CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.
SECTION 9.13. USA PATRIOT Act. Each Lender that is subject to the requirements of the Patriot Act hereby notifies each Loan Party
that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies such Loan Party, which information includes the name and address of such Loan Party and other information that will allow
such Lender to identify such Loan Party in accordance with the Patriot Act.
SECTION 9.14. Releases of Subsidiary Guarantors.
(a) A Subsidiary Guarantor shall automatically be released from its obligations under the Subsidiary Guaranty upon the consummation of
any transaction permitted by this Agreement as a result of which such Subsidiary Guarantor ceases to be a Subsidiary; provided that, if so required by this Agreement, the Required Lenders shall have consented to such transaction and the terms
of such consent shall not have provided otherwise. In connection with any termination or release pursuant to this Section, the Administrative Agent shall (and is hereby irrevocably authorized by each Lender to) execute and deliver to any Loan Party,
at such Loan Partys expense, all documents that such Loan Party shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this Section shall be without recourse to or warranty by the
Administrative Agent.
(b) Further, the Administrative Agent may (and is hereby irrevocably authorized by each Lender to), upon the
request of the Borrower, release any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty if such Subsidiary Guarantor is no longer a Material Domestic Subsidiary.
(c) At such time as the principal and interest on the Loans, the fees, expenses and other amounts payable under the Loan Documents and the
other Obligations (other than obligations under any Swap Agreement or any Banking Services Agreement, and other Obligations expressly stated to survive such payment and termination) shall have been paid in full in cash, the Commitments shall have
been terminated, the Subsidiary Guaranty and all obligations (other than those expressly stated to survive such termination) of each Subsidiary Guarantor thereunder shall automatically terminate, all without delivery of any instrument or performance
of any act by any Person.
SECTION 9.15. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any
time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively the Charges), shall exceed the maximum lawful rate (the
Maximum Rate) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all
Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall
be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds
Effective Rate to the date of repayment, shall have been received by such Lender.
SECTION 9.16. No Advisory or Fiduciary
Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees that:
(i) (A) the arranging and other services regarding this Agreement provided by the Arrangers, the Lenders, the Syndication Agents and the Documentation Agents are arms-length commercial transactions between the Borrower and its
Affiliates, on the one hand, and the Arrangers, the Lenders, the Syndication Agents, the Documentation Agents and their respective Affiliates, on the other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate, and (C) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents;
(ii) (A) each of the Arrangers, the Lenders, the Syndication Agents, the Documentation Agents and their respective
53
Affiliates is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or
fiduciary for the Borrower or any of its Affiliates, or any other Person and (B) no Arranger, Lender, Syndication Agent, Documentation Agent or any of their respective Affiliates has any obligation to the Borrower or any of its Affiliates with
respect to the transactions contemplated hereby except, in the case of a Lender, those obligations expressly set forth herein and in the other Loan Documents; and (iii) each of the Arrangers, the Lenders, the Syndication Agents, the
Documentation Agents and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and no Arranger, Lender, Syndication Agent, Documentation Agent or
any of their respective Affiliates has any obligation to disclose any of such interests to the Borrower or its Affiliates. To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against each of
the Arrangers, the Lenders, the Syndication Agents, the Documentation Agents and their respective Affiliates with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated
hereby.
ARTICLE X
Borrower Guarantee
In
order to induce the Lenders to extend credit to the Borrower hereunder and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the Borrower hereby absolutely and irrevocably and unconditionally
guarantees, as a primary obligor and not merely as a surety, the payment when and as due of the Specified Ancillary Obligations of the Subsidiaries. The Borrower further agrees that the due and punctual payment of such Specified Ancillary
Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any such Specified Ancillary
Obligation.
The Borrower represents to the Lenders and the Administrative Agent that as of the date hereof, and on each date on which a
Transaction (as defined in any ISDA Agreement or similar agreement entered into between the Lenders or any of their Affiliates and any Subsidiary) is entered into, it is an eligible contract participant, as such term is defined in the
U.S. Commodity Exchange Act, (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute, and covenants that it will continue to maintain such status until all of its obligations hereunder have been satisfied.
The Borrower waives presentment to, demand of payment from and protest to any Subsidiary of any of the Specified Ancillary Obligations, and
also waives notice of acceptance of its obligations and notice of protest for nonpayment. The obligations of the Borrower hereunder shall not be affected by (a) the failure of any applicable Lender (or any of its Affiliates) to assert any claim
or demand or to enforce any right or remedy against any Subsidiary under the provisions of any Banking Services Agreement, any Swap Agreement or otherwise; (b) any extension or renewal of any of the Specified Ancillary Obligations; (c) any
rescission, waiver, amendment or modification of, or release from, any of the terms or provisions of this Agreement, any other Loan Document, any Banking Services Agreement, any Swap Agreement or other agreement; (d) any default, failure or
delay, willful or otherwise, in the performance of any of the Specified Ancillary Obligations; (e) the failure of any applicable Lender (or any of its Affiliates) to take any steps to perfect and maintain any security interest in, or to
preserve any rights to, any security or collateral for the Specified Ancillary Obligations, if any; (f) any change in the corporate, partnership or other existence, structure or ownership of any Subsidiary or any other guarantor of any of the
Specified Ancillary Obligations; (g) the enforceability or validity of the Specified Ancillary Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral
securing the Specified Ancillary Obligations or any part thereof, or any other invalidity or unenforceability relating to or against any Subsidiary or any other guarantor of any of the Specified Ancillary Obligations, for any reason related to this
Agreement, any other Loan Document, any Banking Services Agreement, any Swap Agreement, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Subsidiary or any other guarantor
of the Specified Ancillary Obligations, of any of the Specified Ancillary Obligations or otherwise affecting any term of any of the Specified Ancillary Obligations; or (h) any other act, omission or delay to do any other act which may or might
in any manner or to any extent vary the risk of the Borrower or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of the Borrower to subrogation.
54
The Borrower further agrees that its agreement hereunder constitutes a guarantee of payment when
due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Specified Ancillary Obligations or operated as a discharge thereof) and not merely of collection, and waives any right to require that
any resort be had by any applicable Lender (or any of its Affiliates) to any balance of any deposit account or credit on the books of the Administrative Agent or any Lender in favor of any Subsidiary or any other Person.
The obligations of the Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and
shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever (other than payment in full of the Specified Ancillary Obligations), by reason of the invalidity, illegality or unenforceability of any of the
Specified Ancillary Obligations, any impossibility in the performance of any of the Specified Ancillary Obligations or otherwise.
The
Borrower further agrees that its obligations hereunder shall constitute a continuing and irrevocable guarantee of all Specified Ancillary Obligations now or hereafter existing and shall continue to be effective or be reinstated, as the case may be,
if at any time payment, or any part thereof, of any Specified Ancillary Obligation (including a payment effected through exercise of a right of setoff) is rescinded, or is or must otherwise be restored or returned by any applicable Lender (or any of
its Affiliates) upon the insolvency, bankruptcy or reorganization of any Subsidiary or otherwise (including pursuant to any settlement entered into by a holder of Specified Ancillary Obligations in its discretion).
In furtherance of the foregoing and not in limitation of any other right which any applicable Lender (or any of its Affiliates) may have at
law or in equity against the Borrower by virtue hereof, upon the failure of any Subsidiary to pay any Specified Ancillary Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, the Borrower hereby promises to and will, upon receipt of written demand by any applicable Lender (or any of its Affiliates), forthwith pay, or cause to be paid, to such applicable Lender (or any of its Affiliates) in cash an amount equal
to the unpaid principal amount of such Specified Ancillary Obligations then due, together with accrued and unpaid interest thereon. The Borrower further agrees that if payment in respect of any Specified Ancillary Obligation shall be due in a
currency other than Dollars and/or at a place of payment other than New York or Chicago and if, by reason of any Change in Law, disruption of currency or foreign exchange markets, war or civil disturbance or other event, payment of such Specified
Ancillary Obligation in such currency or at such place of payment shall be impossible or, in the reasonable judgment of any applicable Lender (or any of its Affiliates), disadvantageous to such applicable Lender (or any of its Affiliates) in any
material respect, then, at the election of such applicable Lender, the Borrower shall make payment of such Specified Ancillary Obligation in Dollars (based upon the applicable Equivalent Amount in effect on the date of payment) and/or in New York or
Chicago as is designated by such applicable Lender (or its Affiliate) and, as a separate and independent obligation, shall indemnify such applicable Lender (and any of its Affiliates) against any losses or reasonable out-of-pocket expenses that it
shall sustain as a result of such alternative payment.
Upon payment by the Borrower of any sums as provided above, all rights of the
Borrower against any Subsidiary arising as a result thereof by way of right of subrogation or otherwise shall in all respects be subordinated and junior in right of payment to the prior indefeasible payment in full in cash of all the Specified
Ancillary Obligations owed by such Subsidiary to the applicable Lender (or its applicable Affiliates).
Nothing shall discharge or satisfy
the liability of the Borrower hereunder except the full performance and payment in cash of the Obligations (other than contingent indemnity obligations not yet due and payable).
[Signature Pages Follow]
55
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
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LAM RESEARCH CORPORATION, |
as the Borrower |
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By |
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/s/ Douglas R. Bettinger |
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Name: |
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Douglas R. Bettinger |
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Title: |
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Executive Vice President and Chief Financial Officer |
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JPMORGAN CHASE BANK, N.A., |
Individually as a Lender and as Administrative Agent |
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By: |
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/s/ Caitlin Stewart |
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Name: |
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Caitlin Stewart |
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Title: |
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Vice President |
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GOLDMAN SACHS BANK USA, |
as a Lender |
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By: |
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/s/ Robert Ehudin |
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Name: |
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Robert Ehudin |
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Title: |
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Authorized Signatory |
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BARCLAYS BANK PLC, |
as a Lender |
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By: |
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/s/ Vanessa Kurbatskiy |
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Name: |
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Vanessa Kurbatskiy |
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Title: |
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Vice President |
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CITIBANK, N.A., |
as a Lender |
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By: |
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/s/ Richard Rivera |
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Name: |
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Richard Rivera |
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Title: |
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Vice President |
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BANK OF AMERICA, |
as a Lender |
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By: |
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/s/ Mukesh Singh |
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Name: |
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Mukesh Singh |
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Title: |
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Vice President |
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BNP PARIBAS, |
as a Lender |
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By: |
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/s/ Nicolas Rabier |
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Name: |
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Nicolas Rabier |
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Title: |
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Managing Director |
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By: |
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/s/ Karim Remtouia |
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Name: |
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Karim Remtouia |
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Title: |
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Vice President |
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BANK OF THE WEST, |
as a Lender |
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By: |
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/s/ Terry Switz |
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Name: |
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Terry Switz |
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Title: |
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Vice President |
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FIRST HAWAIIAN BANK, |
as a Lender |
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By: |
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/s/ Darlene Blakeney |
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Name: |
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Darlene Blakeney |
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Title: |
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Vice President |
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DEUTSCHE BANK AG NEW YORK BRANCH, |
as a Lender |
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By: |
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/s/ Ming K. Chu |
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Name: |
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Ming K. Chu |
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Title: |
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Vice President |
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By: |
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/s/ Virginia Cosenza |
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Name: |
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Virginia Cosenza |
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Title: |
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Vice President |
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MIZUHO BANK, LTD., |
as a Lender |
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By: |
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/s/ Bertram H. Tang |
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Name: |
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Bertram H. Tang |
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Title: |
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Authorized Signatory |
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THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., |
as a Lender |
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By: |
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/s/ Lillian Kim |
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Name: |
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Lillian Kim |
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Title: |
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Director |
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WELLS FARGO BANK, N.A., |
as a Lender |
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By: |
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/s/ Matthew S. Thoreson |
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Name: |
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Matthew S. Thoreson |
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Title: |
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Senior Vice President |
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DBS BANK LTD., |
as a Lender |
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By: |
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/s/ Saif Amin |
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Name: |
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Saif Amin |
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Title: |
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VP, IBG-TMT |
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HSBC BANK USA, N.A., |
as a Lender |
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By: |
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/s/ Christopher L. Snider |
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Name: |
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Christopher L. Snider |
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Title: |
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Vice President, Senior Relationship Manager |
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PNC BANK, NATIONAL ASSOCIATION, |
as a Lender |
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By: |
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/s/ David B. Mitchell |
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Name: |
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David B. Mitchell |
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Title: |
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EVP |
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SUNTRUST BANK, |
as a Lender |
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By: |
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/s/ Min Park |
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Name: |
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Min Park |
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Title: |
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Authorized Signatory |
SCHEDULE I
PRICING SCHEDULE
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3-Year Tranche Loans/Commitments |
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5-Year Tranche Loans/Commitments |
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Applicable Rate |
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Applicable |
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Applicable Rate |
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Applicable |
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Index Debt Ratings (Moodys/S&P) |
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ABR Loans |
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Eurodollar Loans |
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Commitment Fee Rate |
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ABR Loans |
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Eurodollar Loans |
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Commitment Fee Rate |
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Level 1: ³ A3/A- |
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0 bps |
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100.0 bps |
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10.0 bps |
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12.5 bps |
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112.5 bps |
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12.5 bps |
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Level 2: Baa1/BBB+ |
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12.5 bps |
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112.5 bps |
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12.5 bps |
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25.0 bps |
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125.0 bps |
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15.0 bps |
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Level 3: Baa2/BBB |
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25.0 bps |
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125.0 bps |
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15.0 bps |
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50.0 bps |
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150.0 bps |
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20.0 bps |
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Level 4: Baa3/BBB- |
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50.0 bps |
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150.0 bps |
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20.0 bps |
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75.0 bps |
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175.0 bps |
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25.0 bps |
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Level 5: £ Ba1/BB+ |
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75.0 bps |
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175.0 bps |
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25.0 bps |
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100.0 bps |
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200.0 bps |
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30.0 bps |
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For purposes of the foregoing, (i) if either Moodys or S&P shall not have in effect an Index Debt Rating (other
than by reason of the circumstances referred to in the last sentence hereof), then such rating agency shall be deemed to have established a rating in Level 5; (ii) if the Index Debt Ratings established or deemed to have been established by
Moodys and S&P shall fall within different Levels, the Level then in effect shall be based on the higher of the two ratings unless one of the two ratings is two or more Levels lower than the other, in which case the Level then in effect
shall be determined by reference to the Level next below that of the higher of the two ratings; and (iii) if the Index Debt Ratings established or deemed to have been established by Moodys and S&P shall be changed (other than as a
result of a change in the rating system of Moodys or S&P), such change shall be effective as of the date on which it is first announced by the applicable rating agency, irrespective of when notice of such change shall have been furnished
by the Borrower to the Administrative Agent and the Lenders pursuant to the this Agreement or otherwise. Each change in the Applicable Rate or Applicable Commitment Fee Rate shall apply during the period commencing on the effective date of such
change and ending on the date immediately preceding the effective date of the next such change. If the rating system of Moodys or S&P shall change, or if either such rating agency shall cease to be in the business of rating corporate debt
obligations, the Borrower and the Lenders shall negotiate in good faith to amend this provision to reflect such changed rating system or the unavailability of ratings from such rating agency and, pending the effectiveness of any such amendment, the
Applicable Rate and the Applicable Commitment Fee Rate shall be determined by reference to the rating most recently in effect prior to such change or cessation.
EXHIBIT A
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the Assignment and Assumption) is dated as of the Effective Date set forth below and is
entered into by and between [the] [each]1 Assignor identified in item 1 below ([the] [each, an] Assignor) and [the]
[each]2 Assignee identified in item 2 below ([the] [each, an] Assignee). [It is understood and agreed that rights and obligations of [the Assignors] [the Assignees]3 hereunder are several and not joint.]4 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement
identified below, receipt of a copy of which is hereby acknowledged by [the] [each] Assignee. The Standard Terms and Conditions set forth in Annex I attached hereto are hereby agreed to and incorporated herein by reference and made a part of
this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the] [each] Assignor hereby irrevocably
sells and assigns to [the Assignee] [the respective Assignees], and [the] [each] Assignee hereby irrevocably purchases and assumes from [the Assignor] [the respective Assignors], subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignors] [the respective Assignors] rights and obligations in [its capacity as a Lender] [their
respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and
obligations of [the Assignor] [the respective Assignors] under the respective facilities identified below (including without limitation any guarantees included in such facilities) and (ii) to the extent permitted to be assigned under applicable
law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)] [the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims,
tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned by [the] [any] Assignor to [the] [any] Assignee pursuant to clause (i) above (the rights
and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as [the] [an] Assigned Interest). Each such sale and assignment is without recourse to [the]
[any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the] [any] Assignor.
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1. |
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Assignor[s]: |
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2. |
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Assignee[s]: |
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[and is an [Affiliate] [Approved Fund] of [identify Lender]5] |
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3. |
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Borrower(s): |
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Lam Research Corporation |
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4. |
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Administrative Agent: |
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JPMorgan Chase Bank, N.A., as the administrative agent under the Credit Agreement |
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5. |
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Credit Agreement: |
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The Term Loan Agreement, dated as of November 10, 2015 among Lam Research Corporation, the Lenders parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and the other agents parties thereto (as further
amended, the Credit Agreement) |
1 |
For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose
the second bracketed language. |
2 |
For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the
second bracketed language. |
4 |
Include bracketed language if there are either multiple Assignors or multiple Assignees. |
A-1
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Assignor[s]6 |
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Assignee[s]7 |
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Aggregate Amount of Commitment/Loans for all Lenders8 |
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Amount of Commitment/ Loans Assigned |
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Percentage Assigned of Commitment/Loans9 |
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CUSIP Number |
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$ |
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$ |
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% |
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$ |
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$ |
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% |
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$ |
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$ |
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% |
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[Remainder of Page Intentionally Left Blank]
6 |
List each Assignor, as appropriate. |
7 |
List each Assignee, as appropriate. |
8 |
Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. |
9 |
Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. |
10 |
To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be determined as of the Trade Date. |
A-2
Effective Date: [ ],
20[ ] [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
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ASSIGNOR[S]11 |
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[NAME OF ASSIGNOR] |
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By: |
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Name: |
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Title: |
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ASSIGNEE[S]12 |
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[NAME OF ASSIGNEE] |
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By: |
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Name: |
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LAM RESEARCH CORPORATION |
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To be added only if the consent of the Borrower is required by the terms of the Credit Agreement. |
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ANNEX I
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor[s]. [The] [Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the]
[the relevant] Assigned Interest, (ii) [the] [such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is not a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations
under any Loan Document.
1.2 Assignee[s]. [The] [Each] Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under Section 9.04 of the Credit Agreement (subject to
such consents, if any, as may be required thereunder), (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire [the] [the relevant] Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the] [the relevant] Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the] [the relevant] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the] [the relevant]
Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as
applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the] [the relevant] Assigned Interest on the basis of which
it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender, and (vi) if it is a Foreign Lender, attached to the Assignment and Assumption is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the] [such] Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, [the] [any] Assignor or
any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance
with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2.
Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the] [each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the] [the relevant] Assignor
for amounts which have accrued to but excluding the Effective Date and to [the] [the relevant] Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the foregoing, the Administrative Agent shall make all payments
of interest, fees or other amounts paid or payable in kind from and after the Effective Date to [the] [the relevant] Assignee.
3.
General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of
counterparts, which together shall constitute one instrument. Acceptance and adoption of the terms of this Assignment and Assumption by [the] [the relevant] Assignee and [the] [the relevant] Assignor by Electronic Signature or delivery of an
executed counterpart of a signature page of this Assignment and Assumption by any Electronic System shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.
Annex I to Exhibit A
EXHIBIT B
SOLVENCY CERTIFICATE
This Solvency Certificate, dated as of [ ],
20[ ] (this Certificate) is delivered pursuant to Section 4.02(i) of that certain Term Loan Agreement, dated as of November 10, 2015 (as amended, restated, amended
and restated, supplemented or otherwise modified from time to time, the Credit Agreement), among Lam Research Corporation (the Company), the Lenders party thereto and JPMorgan Chase Bank, N.A., as administrative
agent (in such capacity, the Administrative Agent). Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
The undersigned hereby certifies, solely in such undersigneds capacity as chief financial officer of the Company, and not individually,
that as of the date hereof, after giving effect to the consummation of the Transactions, including the making of the Loans under the Credit Agreement, and after giving effect to the application of the proceeds of such Indebtedness:
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the fair value of the assets of the Company and its Subsidiaries, on a consolidated basis, exceeds, on a consolidated basis, their debts and liabilities, subordinated, contingent or otherwise; |
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the present fair saleable value of the property of the Company and its Subsidiaries, on a consolidated basis, is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of
their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; |
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the Company and its Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities, subordinated, contingent or otherwise, as such liabilities become absolute and matured; and |
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the Company and its Subsidiaries, on a consolidated basis, are not engaged in, and are not about to engage in, business for which they have unreasonably small capital. |
For purposes of this Certificate, the amount of any contingent liability at any time shall be computed as the amount that would reasonably be
expected to become an actual and matured liability.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned has executed this Certificate in such undersigneds
capacity as chief financial officer of the Company, on behalf of the Company, and not individually, as of the date first stated above.
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LAM RESEARCH CORPORATION |
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EXHIBIT C
FORM OF
SUBSIDIARY
GUARANTY
GUARANTY
THIS
GUARANTY (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this Guaranty) is made as of [ ],
20[ ], by and among each of the undersigned (the Initial Guarantors and along with any additional Subsidiaries of the Borrower which become parties to this Guaranty by executing a
supplement hereto in the form attached as Annex I, each, a Guarantor and collectively, the Guarantors) in favor of the Administrative Agent, for the ratable benefit of the Holders of Guaranteed
Obligations (as defined below), under the Credit Agreement referred to below.
W I T N E S S E T H
WHEREAS, Lam Research Corporation, a Delaware corporation (the Borrower), the institutions from time to time parties
thereto as lenders (the Lenders), and JPMorgan Chase Bank, N.A., in its capacity as administrative agent (the Administrative Agent), have entered into a certain Term Loan Agreement, dated as of November 10,
2015 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Credit Agreement), providing, subject to the terms and conditions thereof, for extensions of credit and
other financial accommodations to be made by the Lenders to the Borrower;
WHEREAS, it is a condition precedent to the extensions of
credit by the Lenders under the Credit Agreement that each of the Guarantors (constituting all of the Subsidiaries of the Borrower required to execute this Guaranty pursuant to Section 5.09 of the Credit Agreement) execute and deliver
this Guaranty, whereby each of the Guarantors shall guarantee the payment when due of all Obligations; and
WHEREAS, in consideration of
the direct and indirect financial and other support that the Borrower has provided, and such direct and indirect financial and other support as the Borrower may in the future provide, to the Guarantors, and in order to induce the Lenders and the
Administrative Agent to enter into the Credit Agreement, each of the Guarantors is willing to guarantee the Obligations of the Borrower;
NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms defined in the Credit
Agreement and not otherwise defined herein have, as used herein, the respective meanings provided for therein.
SECTION 2.
Representations, Warranties and Covenants. Each of the Guarantors represents and warrants (which representations and warranties shall be deemed to have been renewed at the time of the making, conversion or continuation of any Loan) that:
(A) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business
in, and is in good standing in, every jurisdiction where such qualification is required.
(B) This Guaranty and the
obligations contemplated hereunder are within its organizational powers and have been duly authorized by all necessary organizational actions and, if required, actions by equity holders. This Guaranty has been duly executed and delivered by it and
constitutes a legal, valid and binding obligation of such Guarantor, respectively, enforceable against such Guarantor 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.
(C) The execution and delivery by it of this Guaranty and the consummation by it of the transactions contemplated hereby
(a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (b) will not violate any applicable
law or regulation or its charter, by-laws or other organizational documents or any order of any Governmental Authority, (c) will not violate or result in a default under any material indenture or other material agreement or material instrument
binding upon it or its assets, or give rise to a right thereunder to require any payment to be made by it, and (d) will not result in the creation or imposition of any Lien on any of its assets.
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In addition to the foregoing, each of the Guarantors covenants that, until the payment in full of
the Guaranteed Obligations in cash (other than contingent indemnity obligations not yet due and payable), and the termination, expiry or cash collateralization of any and all commitments by the Lenders to make Loans and other extensions of credit
under the Credit Agreement (the collective occurrence of which is referred to herein as Payment and Termination in Full) it will, and, if necessary, will enable the Borrower to, fully comply with those covenants and agreements of
the Borrower applicable to such Guarantor set forth in the Credit Agreement.
SECTION 3. The Guaranty. Each of the Guarantors
hereby unconditionally guarantees, as primary obligor and not as surety merely, jointly with the other Guarantors and severally, the full and punctual payment and performance when due (whether at stated maturity, upon acceleration or otherwise) of
the Obligations (other than Obligations arising or incurred to the Lenders or any of their Affiliates under any Swap Agreement or any Banking Services Agreement), including, without limitation, (i) the principal of and interest on each Loan
made to the Borrower pursuant to the Credit Agreement and (ii) all other amounts payable by the Borrower or any of its Subsidiaries under the Credit Agreement and the other Loan Documents (other than any Swap Agreement or any Banking Services
Agreement) (all of the foregoing being referred to collectively as the Guaranteed Obligations and the holders from time to time of the Guaranteed Obligations being referred to collectively as the Holders of Guaranteed
Obligations). Upon (x) the failure by the Borrower or any of its Affiliates, as applicable, to pay punctually any such amount or perform such obligation, and (y) such failure continuing beyond any applicable grace or notice and
cure period to the extent applicable, each of the Guarantors agrees that it shall forthwith on demand pay such amount or perform such obligation at the place and in the manner specified in the Credit Agreement or the relevant Loan Document, as the
case may be. Each of the Guarantors hereby agrees that this Guaranty is an absolute, irrevocable and unconditional guaranty of payment and is not a guaranty of collection. Each of the Guarantors hereby irrevocably and unconditionally agrees, jointly
and severally with the other Guarantors, that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify the Holders of Guaranteed Obligations immediately on
demand against any cost, loss or liability they incur as a result of the Borrower or any of its Affiliates not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by such Guarantor under this
Guaranty on the date when it would have been due (but so that the amount payable by each Guarantor under this indemnity will not exceed the amount which it would have had to pay under this Guaranty if the amount claimed had been recoverable on the
basis of a guaranty).
SECTION 4. Guaranty Unconditional. The obligations of each of the Guarantors hereunder shall be
unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by:
(A) any extension, renewal, settlement, indulgence, compromise, waiver or release of or with respect to the Guaranteed
Obligations or any part thereof or any agreement relating thereto, or with respect to any obligation of any other guarantor of any of the Guaranteed Obligations, whether (in any such case) by operation of law or otherwise, or any failure or omission
to enforce any right, power or remedy with respect to the Guaranteed Obligations or any part thereof or any agreement relating thereto, or with respect to any obligation of any other guarantor of any of the Guaranteed Obligations;
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(B) any modification or amendment of or supplement to the Credit Agreement or any
other Loan Document, including, without limitation, any such amendment which may increase the amount of, or the interest rates applicable to, any of the Obligations guaranteed hereby;
(C) any release, surrender, compromise, settlement, waiver, subordination or modification, with or without consideration, of
any collateral securing the Guaranteed Obligations or any part thereof, any other guaranties with respect to the Guaranteed Obligations or any part thereof, or any other obligation of any person or entity with respect to the Guaranteed Obligations
or any part thereof, or any nonperfection or invalidity of any direct or indirect security for the Guaranteed Obligations;
(D) any change in the corporate, partnership or other existence, structure or ownership of the Borrower or any other guarantor
of any of the Guaranteed Obligations, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Borrower or any other guarantor of the Guaranteed Obligations, or any of their respective assets or any resulting release
or discharge of any obligation of the Borrower or any other guarantor of any of the Guaranteed Obligations;
(E) the
existence of any claim, setoff or other rights which the Guarantors may have at any time against the Borrower, any other guarantor of any of the Guaranteed Obligations, the Administrative Agent, any Holder of Guaranteed Obligations or any other
Person, whether in connection herewith or in connection with any unrelated transactions; provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim;
(F) the enforceability or validity of the Guaranteed Obligations or any part thereof or the genuineness, enforceability or
validity of any agreement relating thereto or with respect to any collateral securing the Guaranteed Obligations or any part thereof, or any other invalidity or unenforceability relating to or against the Borrower or any other guarantor of any of
the Guaranteed Obligations, for any reason related to the Credit Agreement, any other Loan Document, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by the Borrower or any other
guarantor of the Guaranteed Obligations, of any of the Guaranteed Obligations or otherwise affecting any term of any of the Guaranteed Obligations;
(G) the failure of the Administrative Agent to take any steps to perfect and maintain any security interest in, or to preserve
any rights to, any security or collateral for the Guaranteed Obligations, if any;
(H) the election by, or on behalf of,
any one or more of the Holders of Guaranteed Obligations, in any proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. 101 et seq.) (the Bankruptcy Code), of the application of
Section 1111(b)(2) of the Bankruptcy Code;
(I) any borrowing or grant of a security interest by the Borrower, as
debtor-in-possession, under Section 364 of the Bankruptcy Code;
(J) the disallowance, under Section 502 of the
Bankruptcy Code, of all or any portion of the claims of the Holders of Guaranteed Obligations or the Administrative Agent for repayment of all or any part of the Guaranteed Obligations;
(K) the failure of any other guarantor to sign or become party to this Guaranty or any amendment, change, or reaffirmation
hereof; or
(L) any other act or omission to act or delay of any kind by the Borrower, any other guarantor of the
Guaranteed Obligations, the Administrative Agent, any Holder of Guaranteed
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Obligations or any other Person or any other circumstance whatsoever which might, but for the provisions of this Section 4, constitute a legal or equitable discharge of any
Guarantors obligations hereunder except as provided in Section 5.
SECTION 5. Continuing Guarantee; Discharge Only
Upon Payment and Termination In Full; Reinstatement In Certain Circumstances. Each of the Guarantors obligations hereunder shall constitute a continuing and irrevocable guarantee of all Guaranteed Obligations now or hereafter existing and
shall remain in full force and effect until Payment and Termination in Full has occurred. If at any time any payment of the principal of or interest on any Loan or any other amount payable by the Borrower or any other party under the Credit
Agreement or any other Loan Document (including a payment effected through exercise of a right of setoff) is rescinded, or is or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise
(including pursuant to any settlement entered into by a Holder of Guaranteed Obligations in its discretion), each of the Guarantors obligations hereunder with respect to such payment shall be reinstated as though such payment had been due but
not made at such time. The parties hereto acknowledge and agree that each of the Guaranteed Obligations shall be due and payable in Dollars.
SECTION 6. General Waivers; Additional Waivers.
(A) General Waivers. Each of the Guarantors irrevocably waives acceptance hereof, presentment, demand or action on
delinquency, protest, the benefit of any statutes of limitations and, to the fullest extent permitted by law, any notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against the Borrower, any
other guarantor of the Guaranteed Obligations, or any other Person.
(B) Additional Waivers. Notwithstanding
anything herein to the contrary, each of the Guarantors hereby absolutely, unconditionally, knowingly, and expressly waives:
(i) any right it may have to revoke this Guaranty as to future indebtedness or notice of acceptance hereof;
(ii) (a) notice of acceptance hereof; (b) notice of any loans or other financial accommodations made or extended
under the Loan Documents or the creation or existence of any Guaranteed Obligations; (c) notice of the amount of the Guaranteed Obligations, subject, however, to each Guarantors right to make inquiry of Administrative Agent and Holders of
Guaranteed Obligations to ascertain the amount of the Guaranteed Obligations at any reasonable time; (d) notice of any adverse change in the financial condition of the Borrower or of any other fact that might increase such Guarantors risk
hereunder; (e) notice of presentment for payment, demand, protest, and notice thereof as to any instruments among the Loan Documents; (f) notice of any Default or Event of Default; and (g) all other notices (except if such notice is
specifically required to be given to such Guarantor hereunder or under the Loan Documents) and demands to which each Guarantor might otherwise be entitled;
(iii) its right, if any, to require the Administrative Agent and the other Holders of Guaranteed Obligations to institute suit
against, or to exhaust any rights and remedies which the Administrative Agent and the other Holders of Guaranteed Obligations has or may have against, the other Guarantors or any third party, or against any collateral provided by the other
Guarantors, or any third party; and each Guarantor further waives any defense arising by reason of any disability or other defense (other than the defense that the Guaranteed Obligations shall have been fully and finally performed and indefeasibly
paid) of the other Guarantors or by reason of the cessation from any cause whatsoever of the liability of the other Guarantors in respect thereof;
(iv) (a) any rights to assert against the Administrative Agent and the other Holders of Guaranteed Obligations any defense
(legal or equitable), set-off, counterclaim, or claim which such Guarantor may now or at any time hereafter have against the other Guarantors or any other party liable to the Administrative Agent and the other Holders of Guaranteed Obligations
(other than Payment and Termination in Full); (b) any defense, set-off, counterclaim, or claim, of any
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kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Guaranteed Obligations or any security therefor;
(c) any defense such Guarantor has to performance hereunder, and any right such Guarantor has to be exonerated, arising by reason of: the impairment or suspension of the Administrative Agents and the other Holders of Guaranteed
Obligations rights or remedies against the other Guarantors; the alteration by the Administrative Agent and the other Holders of Guaranteed Obligations of the Guaranteed Obligations; any discharge of the other Guarantors obligations to
the Administrative Agent and the other Holders of Guaranteed Obligations by operation of law as a result of the Administrative Agents and the other Holders of Guaranteed Obligations intervention or omission; or the acceptance by the
Administrative Agent and the other Holders of Guaranteed Obligations of anything in partial satisfaction of the Guaranteed Obligations; and (d) the benefit of any statute of limitations affecting such Guarantors liability hereunder or the
enforcement thereof, and any act which shall defer or delay the operation of any statute of limitations applicable to the Guaranteed Obligations shall similarly operate to defer or delay the operation of such statute of limitations applicable to
such Guarantors liability hereunder; and
(v) any defense arising by reason of or deriving from (a) any claim or
defense based upon an election of remedies by the Administrative Agent and the other Holders of Guaranteed Obligations; or (b) any election by the Administrative Agent and the other Holders of Guaranteed Obligations under Section 1111(b)
of Title 11 of the United States Code entitled Bankruptcy, as now and hereafter in effect (or any successor statute), to limit the amount of, or any collateral securing, its claim against the Guarantors.
SECTION 7. Subordination of Subrogation; Subordination of Intercompany Indebtedness.
(A) Subordination of Subrogation. Until Payment and Termination in Full has occurred, the Guarantors (i) shall have
no right of subrogation with respect to such Guaranteed Obligations, (ii) waive any right to enforce any remedy which the Holders of Guaranteed Obligations or the Administrative Agent now have or may hereafter have against the Borrower, any
endorser or any guarantor of all or any part of the Guaranteed Obligations or any other Person, and (iii) waive any benefit of, and any right to participate in, any security or collateral given to the Holders of Guaranteed Obligations and the
Administrative Agent to secure the payment or performance of all or any part of the Guaranteed Obligations or any other liability of the Borrower to the Holders of Guaranteed Obligations. Should any Guarantor have the right, notwithstanding the
foregoing, to exercise its subrogation rights, each Guarantor hereby expressly and irrevocably (A) subordinates any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off that
such Guarantor may have to the indefeasible payment in full in cash of the Guaranteed Obligations until Payment and Termination in Full has occurred and (B) waives any and all defenses available to a surety, guarantor or accommodation
co-obligor until Payment and Termination in Full has occurred. Each Guarantor acknowledges and agrees that this subordination is intended to benefit the Administrative Agent and the other Holders of Guaranteed Obligations and shall not limit or
otherwise affect such Guarantors liability hereunder or the enforceability of this Guaranty, and that the Administrative Agent, the other Holders of Guaranteed Obligations and their respective successors and assigns are intended third party
beneficiaries of the waivers and agreements set forth in this Section 7(A).
(B) Subordination of
Intercompany Indebtedness. Each Guarantor agrees that any and all claims of such Guarantor against the Borrower or any other Guarantor hereunder (each, an Obligor) with respect to any Intercompany Indebtedness (as
hereinafter defined), any endorser, obligor or any other guarantor of all or any part of the Guaranteed Obligations, or against any of its properties shall be subordinate and subject in right of payment to the prior payment, in full and in cash, of
all Guaranteed Obligations; provided that, as long as no Event of Default has occurred and is continuing and the Administrative Agent instructs such Guarantor otherwise, such Guarantor may receive payments of principal and interest from any
Obligor with respect to Intercompany Indebtedness. Notwithstanding any right of any Guarantor to ask, demand, sue for, take or receive any payment from any Obligor, all rights, liens and security
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interests of such Guarantor, whether now or hereafter arising and howsoever existing, in any assets of any other Obligor shall be and are subordinated to the rights of the Holders of Guaranteed
Obligations and the Administrative Agent in those assets. No Guarantor shall have any right to possession of any such asset or to foreclose upon any such asset, whether by judicial action or otherwise, unless and until Payment and Termination in
Full has occurred and all financing arrangements pursuant to any Loan Document have been terminated. If all or any part of the assets of any Obligor, or the proceeds thereof, are subject to any distribution, division or application to the creditors
of such Obligor, whether partial or complete, voluntary or involuntary, and whether by reason of liquidation, bankruptcy, arrangement, receivership, assignment for the benefit of creditors or any other action or proceeding, or if the business of any
such Obligor is dissolved or if substantially all of the assets of any such Obligor are sold, then, and in any such event (such events being herein referred to as an Insolvency Event), any payment or distribution of any kind or
character, either in cash, securities or other property, which shall be payable or deliverable upon or with respect to any indebtedness of any Obligor to any Guarantor (Intercompany Indebtedness) shall be paid or delivered
directly to the Administrative Agent for application on any of the Guaranteed Obligations, due or to become due, until Payment and Termination in Full has occurred. Should any payment, distribution, security or instrument or proceeds thereof be
received by the applicable Guarantor upon or with respect to the Intercompany Indebtedness after any Insolvency Event and prior to Payment and Termination in Full and the termination of all financing arrangements pursuant to any Loan Document among
the Borrower and the Holders of Guaranteed Obligations, such Guarantor shall receive and hold the same in trust, as trustee, for the benefit of the Holders of Guaranteed Obligations and shall forthwith deliver the same to the Administrative Agent,
for the benefit of the Holders of Guaranteed Obligations, in precisely the form received (except for the endorsement or assignment of the Guarantor where necessary), for application to any of the Guaranteed Obligations, due or not due, and, until so
delivered, the same shall be held in trust by the Guarantor as the property of the Holders of Guaranteed Obligations. If any such Guarantor fails to make any such endorsement or assignment to the Administrative Agent, the Administrative Agent or any
of its officers or employees is irrevocably authorized to make the same. Each Guarantor agrees that until Payment and Termination in Full has occurred, no Guarantor will assign or transfer to any Person (other than the Administrative Agent) any
claim any such Guarantor has or may have against any Obligor.
SECTION 8. Contribution with Respect to Guaranteed Obligations.
(A) To the extent that any Guarantor shall make a payment under this Guaranty (a Guarantor Payment) which,
taking into account all other Guarantor Payments then previously or concurrently made by any other Guarantor, exceeds the amount which otherwise would have been paid by or attributable to such Guarantor if each Guarantor had paid the aggregate
Guaranteed Obligations satisfied by such Guarantor Payment in the same proportion as such Guarantors Allocable Amount (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable
Amounts of each of the Guarantors as determined immediately prior to the making of such Guarantor Payment, then, following Payment and Termination in Full, such Guarantor shall be entitled to receive contribution and indemnification payments from,
and be reimbursed by, each other Guarantor for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.
(B) As of any date of determination, the Allocable Amount of any Guarantor shall be equal to the excess of
the fair saleable value of the property of such Guarantor over the total liabilities of such Guarantor (including the maximum amount reasonably expected to become due in respect of contingent liabilities, calculated, without duplication, assuming
each other Guarantor that is also liable for such contingent liability pays its ratable share thereof), giving effect to all payments made by other Guarantors as of such date in a manner to maximize the amount of such contributions.
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(C) This Section 8 is intended only to define the relative rights of
the Guarantors, and nothing set forth in this Section 8 is intended to or shall impair the obligations of the Guarantors, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the
terms of this Guaranty.
(D) The parties hereto acknowledge that the rights of contribution and indemnification hereunder
shall constitute assets of the Guarantor or Guarantors to which such contribution and indemnification is owing.
(E) The
rights of the indemnifying Guarantors against other Guarantors under this Section 8 shall be exercisable upon Payment and Termination in Full.
SECTION 9. Limitation of Guaranty. Notwithstanding any other provision of this Guaranty, the amount guaranteed by each Guarantor
hereunder shall be limited to the extent, if any, required so that its obligations hereunder shall not be subject to avoidance under Section 548 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform
Fraudulent Conveyance Act or similar federal or state statute or common law. In determining the limitations, if any, on the amount of any Guarantors obligations hereunder pursuant to the preceding sentence, it is the intention of the parties
hereto that any rights of subrogation, indemnification or contribution which such Guarantor may have under this Guaranty, any other agreement or applicable law shall be taken into account.
SECTION 10. Stay of Acceleration. If acceleration of the time for payment of any amount payable by the Borrower under the Credit
Agreement or any other Loan Document is stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all such amounts otherwise subject to acceleration under the terms of the Credit Agreement or any other Loan Document shall nonetheless
be payable by each of the Guarantors hereunder forthwith on demand by the Administrative Agent.
SECTION 11. Notices. All notices,
requests and other communications to any party hereunder shall be given in the manner prescribed in Article IX of the Credit Agreement with respect to the Administrative Agent at its notice address therein and with respect to any Guarantor,
in care of the Borrower at the address of the Borrower set forth in the Credit Agreement or such other address or telecopy number as such party may hereafter specify for such purpose by notice to the Administrative Agent in accordance with the
provisions of such Article IX.
SECTION 12. No Waivers. No failure or delay by the Administrative Agent or any other Holder
of Guaranteed Obligations in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right,
power or privilege. The rights and remedies provided in this Guaranty, the Credit Agreement and the other Loan Documents shall be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 13. Successors and Assigns. This Guaranty is for the benefit of the Administrative Agent and the other Holders of Guaranteed
Obligations and their respective successors and permitted assigns; provided, that no Guarantor shall have any right to assign its rights or obligations hereunder without the consent of all of the Lenders, and any such assignment in violation of this
Section 13 shall be null and void; and in the event of an assignment of any amounts payable under the Credit Agreement or the other Loan Documents in accordance with the respective terms thereof, the rights hereunder, to the extent
applicable to the indebtedness so assigned, may be transferred with such indebtedness. This Guaranty shall be binding upon each of the Guarantors and their respective successors and assigns.
SECTION 14. Changes in Writing. Other than in connection with the addition of additional Subsidiaries, which become parties hereto by
executing a supplement hereto in the form attached as Annex I, neither this Guaranty nor any provision hereof may be changed, waived, discharged or terminated orally, but only in writing signed by each of the Guarantors and the Administrative Agent.
SECTION 15. GOVERNING LAW. THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
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SECTION 16. CONSENT TO JURISDICTION; JURY TRIAL; SERVICE OF PROCESS.
(A) CONSENT TO JURISDICTION. EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY,
TO THE EXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY, BOROUGH OF MANHATTAN, AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH GUARANTOR AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS GUARANTY SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR ANY OTHER LOAN
DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(B) WAIVER OF JURY TRIAL. EACH
GUARANTOR HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH GUARANTOR HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
(C) SERVICE OF PROCESS. EACH GUARANTOR IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN ARTICLE IX OF THE CREDIT AGREEMENT. NOTHING IN THIS GUARANTY OR ANY OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS GUARANTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 17. No Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Guaranty. In
the event an ambiguity or question of intent or interpretation arises, this Guaranty shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Guaranty.
SECTION 18. Taxes, Expenses of Enforcement, Etc.
(A) Taxes.
(i) Any and all payments by or on account of any obligation of any Guarantor hereunder or under any Loan Document shall be made
without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any
such payment by a withholding agent, then the applicable withholding agent shall be
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entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax
is an Indemnified Tax, then the sum payable by the applicable Guarantor shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under
this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(ii) The Guarantors shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option
of the Administrative Agent timely reimburse it for, Other Taxes.
(iii) As soon as practicable after any payment of
Indemnified Taxes by any Guarantor to a Governmental Authority pursuant to this Section, such Guarantor shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(iv) The Guarantors shall indemnify each Recipient, within ten days after demand therefor, for the full amount of any
Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to
the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(v) By accepting the benefits hereof, each Lender agrees that it will comply with Section 2.14(f) of the Credit
Agreement.
(B) Expenses of Enforcement, Etc. The Guarantors agree to reimburse the Administrative Agent and the
other Holders of Guaranteed Obligations for any reasonable costs and out-of-pocket expenses (including attorneys fees) paid or incurred by the Administrative Agent or any other Holder of Guaranteed Obligations in connection with the collection
and enforcement of amounts due under this Guaranty.
SECTION 19. Setoff. At any time after all or any part of the Guaranteed
Obligations have become due and payable (by acceleration or otherwise), each Holder of Guaranteed Obligations (including the Administrative Agent) and its Affiliates may, without notice to any Guarantor and regardless of the acceptance of any
security or collateral for the payment hereof, appropriate and apply in accordance with the terms of the Credit Agreement toward the payment of all or any part of the Guaranteed Obligations (i) any indebtedness due or to become due from such
Holder of Guaranteed Obligations or the Administrative Agent to any Guarantor, and (ii) any moneys, credits or other property belonging to any Guarantor, at any time held by or coming into the possession of such Holder of Guaranteed Obligations
(including the Administrative Agent) or any of their respective affiliates.
SECTION 20. Financial Information. Each Guarantor
hereby assumes responsibility for keeping itself informed of the financial condition of the Borrower and any and all endorsers and/or other Guarantors of all or any part of the Guaranteed Obligations, and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed Obligations, or any part thereof, that diligent inquiry would reveal, and each Guarantor hereby agrees that none of the Holders of Guaranteed Obligations (including the Administrative Agent) shall have any duty
to advise such Guarantor of information known to any of them regarding such condition or any such circumstances. In the event any Holder of Guaranteed Obligations (including the Administrative Agent), in its sole discretion, undertakes at any time
or from time to time to provide any such information to a Guarantor, such Holder of Guaranteed Obligations (including the Administrative Agent) shall be under no obligation (i) to undertake any investigation not a part of its regular business
routine, (ii) to disclose any information which such Holder of
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Guaranteed Obligations (including the Administrative Agent), pursuant to accepted or reasonable commercial finance or banking practices, wishes to maintain confidential or (iii) to make any
other or future disclosures of such information or any other information to such Guarantor.
SECTION 21. Severability. Wherever
possible, each provision of this Guaranty shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Guaranty shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Guaranty.
SECTION 22. Merger. This Guaranty represents the final agreement of each of the Guarantors with respect to the matters contained herein
and may not be contradicted by evidence of prior or contemporaneous agreements, or subsequent oral agreements, between the Guarantor and any Holder of Guaranteed Obligations (including the Administrative Agent).
SECTION 23. Headings. Section headings in this Guaranty are for convenience of reference only and shall not govern the interpretation
of any provision of this Guaranty.
SECTION 24. Termination of Guaranty. The obligations of any Guarantor under this Guaranty shall
automatically terminate in accordance with Section 9.14 of the Credit Agreement.
[Remainder of Page Intentionally
Blank]
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IN WITNESS WHEREOF, each of the Initial Guarantors has caused this Guaranty to be duly executed
by its authorized officer as of the day and year first above written.
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[GUARANTORS] |
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By: |
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Name: |
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Title: |
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Acknowledged and Agreed
as of the date first written above:
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JPMORGAN CHASE BANK, N.A., |
as Administrative Agent |
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By: |
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Name: |
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C-12
ANNEX I TO GUARANTY
Reference is hereby made to the Guaranty (the Guaranty) made as of
[ ], 20[ ], by and among [GUARANTORS TO COME] (the Initial Guarantors and along with any additional Subsidiaries of the Borrower, which
become parties thereto and together with the undersigned, the Guarantors) in favor of the Administrative Agent, for the ratable benefit of the Holders of Guaranteed Obligations, under the Credit Agreement. Capitalized terms used
herein and not defined herein shall have the meanings given to them in the Guaranty. By its execution below, the undersigned [NAME OF NEW GUARANTOR], a [corporation] [partnership] [limited liability company] (the New Guarantor),
agrees to become, and does hereby become, a Guarantor under the Guaranty and agrees to be bound by such Guaranty as if originally a party thereto. By its execution below, the undersigned represents and warrants as to itself that all of the
representations and warranties contained in Section 2 of the Guaranty are true and correct in all respects as of the date hereof.
IN WITNESS WHEREOF, New Guarantor has executed and delivered this Annex I counterpart to the Guaranty as of this [ ]
day of [ ], 20[ ].
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[NAME OF NEW GUARANTOR] |
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Annex I to Exhibit C
EXHIBIT D-1
FORM OF
U.S. TAX
COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Term Loan Agreement, dated as of November 10, 2015 (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time, the Credit Agreement), among Lam Research Corporation (the Borrower), the Lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in
such capacity, the Administrative Agent).
Pursuant to the provisions of Section 2.14 of the Credit
Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank
within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related
to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the
Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall
promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the
calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
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[NAME OF LENDER] |
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Date: [ ], 20[ ] |
D-1-1
EXHIBIT D-2
FORM OF
U.S. TAX
COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Term Loan Agreement, dated as of November 10, 2015 (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time, the Credit Agreement), among Lam Research Corporation (the Borrower), the Lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in
such capacity, the Administrative Agent).
Pursuant to the provisions of Section 2.14 of the Credit
Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of
Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as
described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its
non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in
writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the
two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.
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[NAME OF PARTICIPANT] |
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Date: [ ], 20[ ] |
D-2-1
EXHIBIT D-3
FORM OF
U.S. TAX
COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Term Loan Agreement, dated as of November 10, 2015 (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time, the Credit Agreement), among Lam Research Corporation (the Borrower), the Lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in
such capacity, the Administrative Agent).
Pursuant to the provisions of Section 2.14 of the Credit
Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such
participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or
business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and
(v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its
partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such
partners/members beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall
promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the
undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.
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[NAME OF PARTICIPANT] |
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D-3-1
EXHIBIT D-4
FORM OF
U.S. TAX
COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Term Loan Agreement, dated as of November 10, 2015 (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time, the Credit Agreement), among Lam Research Corporation (the Borrower), the Lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in
such capacity, the Administrative Agent).
Pursuant to the provisions of Section 2.14 of the Credit
Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect
partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to the Credit Agreement or any other Loan Document, neither the undersigned
nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of
its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related
to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the
Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied
by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partners/members beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information
provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly
completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
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[NAME OF LENDER] |
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Date: [ ], 20[ ] |
D-4-1
EXHIBIT E-1
FORM OF
BORROWING
REQUEST
JPMorgan Chase Bank, N.A.,
as Administrative
Agent for the Lenders referred to below
10 South Dearborn Street
Chicago, Illinois 60603
Attention: April Yebd
Facsimile: 888-292-9533
Email: april.yebd@jpmorgan.com
JPM.agency.cri@jpmorgan.com
With a copy to:
JP Morgan Chase Bank, N.A.,
1301 2nd Avenue, Floor 25
Seattle, Washington 98101
Attention: Timothy Lee
Email: timothy.d.lee@jpmorgan.com
Re: |
Lam Research Corporation |
[Date]
Ladies and Gentlemen:
Reference is hereby made
to the Term Loan Agreement, dated as of November 10, 2015 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Credit Agreement), among Lam Research
Corporation (the Borrower), the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the Administrative Agent). Capitalized terms used but not defined
herein shall have the meanings assigned to such terms in the Credit Agreement. The Borrower hereby gives you notice pursuant to Section 2.03 of the Credit Agreement that it requests a Borrowing under the Credit Agreement, and in that
connection the Borrower specifies the following information with respect to such Borrowing requested hereby:
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Aggregate principal amount of Borrowing:1 |
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Date of Borrowing (which shall be a Business Day): |
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Type of Borrowing (ABR or Eurodollar): |
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Interest Period and the last day thereof (if a Eurodollar Borrowing):2 |
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Location and number of the Borrowers account or any other account agreed upon by the Administrative Agent and the Borrower to which proceeds of Borrowing are to be
disbursed:3 |
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Not less than applicable amounts specified in Section 2.02(c). |
2 |
Which must comply with the definition of Interest Period and end not later than the applicable Maturity Date for such Borrowing. |
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Which account must comply with the requirements of Section 2.04. |
[Signature Page Follows]
E-1-1
The undersigned hereby represents and warrants that the conditions to lending specified in
Section 4.02 of the Credit Agreement are satisfied as of the date hereof.
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Very truly yours, |
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LAM RESEARCH CORPORATION, as the
Borrower |
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By: |
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Name: |
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E-1-2
EXHIBIT E-2
FORM OF INTEREST ELECTION REQUEST
JPMorgan Chase Bank, N.A.,
as Administrative Agent
for the Lenders referred to below
10 South Dearborn Street
Chicago, Illinois 60603
Attention: April Yebd
Facsimile: 888-292-9533
Email: april.yebd@jpmorgan.com
JPM.agency.cri@jpmorgan.com
With a
copy to:
JP Morgan Chase Bank, N.A.,
1301 2nd Avenue,
Floor 25
Seattle, Washington 98101
Attention: Timothy Lee
Email: timothy.d.lee@jpmorgan.com
Re: |
Lam Research Corporation |
[Date]
Ladies and Gentlemen:
Reference is hereby made
to the Term Loan Agreement, dated as of November 10, 2015 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Credit Agreement), among Lam Research
Corporation (the Borrower), the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the Administrative Agent). Capitalized terms used but not defined
herein shall have the meanings assigned to such terms in the Credit Agreement. The Borrower hereby gives you notice pursuant to Section 2.05 of the Credit Agreement that it requests to [convert][continue] an existing Borrowing under the
Credit Agreement, and in that connection the Borrower specifies the following information with respect to such [conversion][continuation] requested hereby:
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List date, Class, Type, principal amount and Interest Period (if applicable) of existing Borrowing: |
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Aggregate principal amount of resulting Borrowing: |
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Effective date of interest election (which shall be a Business Day): |
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Type of Borrowing (ABR or Eurodollar): |
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Interest Period and the last day thereof (if a Eurodollar Borrowing):1 |
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Which must comply with the definition of Interest Period and end not later than the applicable Maturity Date for such Borrowing. |
[Signature Page Follows]
E-2-1
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Very truly yours, |
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LAM RESEARCH CORPORATION, as
Borrower |
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By: |
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Name: |
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E-2-2
EXHIBIT F
FORM OF
NOTE
[ ], 2015
FOR VALUE RECEIVED, the undersigned, LAM RESEARCH CORPORATION, a Delaware corporation (the Borrower), HEREBY
UNCONDITIONALLY PROMISES TO PAY to the [NAME OF LENDER] or its registered assigns (the Lender) the aggregate unpaid amount of all Loans made by the Lender to the Borrower pursuant to the Credit Agreement (as defined below) on the
applicable Maturity Date or on such earlier date as may be required by the terms of the Credit Agreement. Capitalized terms used herein and not otherwise defined herein are as defined in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount of each Loan made to it from the date of such Loan until such principal
amount is paid in full at a rate or rates per annum determined in accordance with the terms of the Credit Agreement. Interest hereunder is due and payable at such times and on such dates as set forth in the Credit Agreement.
At the time of each Loan, and upon each payment or prepayment of principal of each Loan, the Lender shall make a notation either on the
schedule attached hereto and made a part hereof, or in such Lenders own books and records, in each case specifying the amount of such Loan, the respective Interest Period thereof (in the case of Eurodollar Loans) or the amount of principal
paid or prepaid with respect to such Loan, as applicable; provided that the failure of the Lender to make any such recordation or notation shall not affect the Obligations of the Borrower hereunder or under the Credit Agreement.
This Note is one of the notes referred to in, and is entitled to the benefits of, that certain Term Loan Agreement, dated as of
November 10, 2015 by and among the Borrower, the financial institutions from time to time parties thereto as Lenders and JPMorgan Chase Bank, N.A., as Administrative Agent (as the same may be amended, restated, amended and restated,
supplemented or otherwise modified from time to time, the Credit Agreement). The Credit Agreement, among other things, (i) provides for the making of Loans by the Lender to the Borrower on the Closing Date in an aggregate
amount not to exceed at any time outstanding the amount of such Lenders Commitment, the indebtedness of the Borrower resulting from such Loan to it being evidenced by this Note, and (ii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for prepayments of the principal hereof prior to the maturity hereof upon the terms and conditions therein specified.
Demand, presentment, protest and notice of nonpayment and protest are hereby waived by the Borrower.
Whenever in this Note reference is made to the Administrative Agent, the Lender or the Borrower, such reference shall be deemed to include, as
applicable, a reference to their respective successors and assigns. The provisions of this Note shall be binding upon and shall inure to the benefit of said successors and assigns. The Borrowers successors and assigns shall include, without
limitation, a receiver, trustee or debtor in possession of or for the Borrower.
This Note shall be construed in accordance with and
governed by the law of the State of New York.
*****
F-1
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LAM RESEARCH CORPORATION |
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F-2
SCHEDULE OF LOANS AND PAYMENTS OR PREPAYMENTS
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Interest Period/Rate |
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Amount of Principal Paid or Prepaid |
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Unpaid Principal Balance |
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Notation Made By |
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F-3
SCHEDULE 3.01
SUBSIDIARIES
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Subsidiary |
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Jurisdiction of Organization |
Lam Research Management GmbH |
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Austria |
Lam Research AG |
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Austria |
IPEC International Sales FSC Ltd |
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Barbados |
IPEC FSC Ltd |
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Barbados |
Lam Research Belgium BVBA |
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Belgium |
Lam Research International Holdings Ltd. |
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Cayman Islands |
Lam Research Service Co., Ltd. |
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China |
Lam Research (Shanghai) Co., Ltd. |
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China |
Novellus Systems International Trading Co. Ltd. |
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China |
Novellus Systems Semiconductor Equipment Co., Ltd. |
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China |
Lam Research SAS |
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France |
Lam Research GmbH |
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Germany |
Lam Research (H.K.) Limited |
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Hong Kong |
Novellus Systems Service (Hong Kong) Limited |
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Hong Kong |
Lam Research (India) Private Ltd. |
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India |
Novellus Systems Ireland Ltd. |
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Ireland |
Lam Research (Ireland) Limited |
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Ireland |
Lam Research Services Ltd. |
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Israel |
GaSonics Israel Ltd. |
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Israel |
Lam Research (Israel) Ltd. |
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Israel |
Lam Research S.r.l. |
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Italy |
Lam Research Co., Ltd. |
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Japan |
Lam Research Luxembourg S.à r.l. |
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Luxembourg |
Lam Research Malaysia Sdn. Bhd. |
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Malaysia |
Lam Research IAG International HC B.V. |
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Netherlands |
Novellus Systems International B.V. |
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Netherlands |
Lam Research B.V. |
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Netherlands |
Lam Research International B.V. |
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Netherlands |
Corus Manufacturing Ltd. |
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Republic of Korea |
Lam Research Korea LLC YH |
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Republic of Korea |
Lam Research Korea Limited |
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Republic of Korea |
Novellus Singapore Holdings Pte. Ltd. |
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Singapore |
Novellus Systems International BV, Singapore Branch |
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Singapore |
Lam Research Singapore Pte Ltd |
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Singapore |
Novellus Systems (Schweiz) Holding GmbH |
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Switzerland |
Voumard Machines Co SARL |
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Switzerland |
Lam Research Holding GmbH |
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Switzerland |
Lam Research International Sàrl |
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Switzerland |
Lam Research (H.K.) Limited, Taiwan Branch |
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Taiwan |
Novellus Systems Service (Hong Kong) Limited, Taiwan Branch (in liquidation) |
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Taiwan |
Lam Research Co., Ltd. |
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Taiwan |
Novellus Systems, Inc. |
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U.S. (California) |
Novellus Systems International, LLC |
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U.S. (California) |
Silfex, Inc. |
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U.S. (Delaware) |
Lam Research International Holding Company |
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U.S. (Delaware) |
Novellus International Holdco, LLC. |
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U.S. (Delaware) |
Novellus Development Company, LLC |
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U.S. (Delaware) |
SpeedFam-IPEC International Services, LLC |
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U.S. (Delaware) |
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Topeka Merger Sub 1, Inc. |
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U.S. (Delaware) |
Topeka Merger Sub 2, Inc. |
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U.S. (Delaware) |
Lam Research Illinois IAG, Inc |
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U.S. (Illinois) |
Lam Research Ltd. |
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United Kingdom |
Metryx, Ltd. |
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United Kingdom |
All Subsidiaries are 100% owned by the Borrower or its other Subsidiaries (excluding directors qualifying shares as
required by law).
As of the date of the Effective Date, no Subsidiary is a Material Domestic Subsidiary.
SCHEDULE 3.06
LITIGATION
Hedgecock
Lawsuit
On October 28, 2015, a complaint was filed in the California Superior Court for Santa Clara County against KLA-Tencor Corp.
(KLA), the members of KLAs board of directors, Lam Research Corporation (Lam Research), Topeka Merger Sub 1, and Topeka Merger Sub 2 (together with Topeka Merger Sub 1 and Lam Research, the Lam Defendants).
The action, captioned Hedgecock v. KLA-Tencor Corp., et al., Case No. 115CV287329, was filed by a purported KLA shareholder as a purported class action on behalf of all KLA shareholders (excluding defendants and their affiliates) against
all defendants. In the complaint, plaintiff alleges that the individual defendants (KLAs board of directors) breached their fiduciary duties by, among other things, causing KLA to agree to a merger transaction with the Lam Defendants at an
unfair price and pursuant to an unfair process, and that the Lam Defendants aided and abetted such breaches. Plaintiff seeks to enjoin or rescind KLAs transaction with the Lam Defendants, as applicable, as well as an award of damages and
attorneys fees, in addition to other relief.
Karr Lawsuit
Also on October 28, 2015, another complaint was filed in the California Superior Court for Santa Clara County against KLA, the members of KLAs board
of directors, Lam Research, Topeka Merger Sub 1, and Topeka Merger Sub 2. This action, captioned Karr v. KLA-Tencor Corporation, et al., Case No. 115CV287331, was filed by one of the same plaintiffs law firms as in the
Hedgecock action on behalf of a different purported KLA shareholder, as a purported class action on behalf of all KLA shareholders (excluding defendants and their affiliates) against all defendants. The allegations in the Karr
complaint are similar to the allegations in the Hedgecock action. In the complaint, plaintiff alleges that the individual defendants (KLAs board of directors) breached their fiduciary duties by, among other things, causing KLA to agree
to a merger transaction with the Lam Defendants at an unfair price and pursuant to an unfair process, and that KLA and the Lam Defendants aided and abetted such breaches. Plaintiff seeks to enjoin or rescind KLAs transaction with the Lam
Defendants, as applicable, as well as an award of attorneys fees, in addition to other relief.
SCHEDULE 6.01
SUBSIDIARY INDEBTEDNESS
1. |
All letters of credit issued by any Subsidiary of the Borrower pursuant to the Continuing Agreement for Standby Letters of Credit dated as of May 6, 2014, between Lam Research Corporation and The Bank of
Tokyo-Mitsubishi UFJ, Ltd. |
2. |
All letters of credit issued by any Subsidiary of the Borrower pursuant to the Continuing Agreement for Commercial & Standby Letters of Credit dated as of October 9, 2015, between Lam Research Corporation
and JPMorgan Chase Bank, N.A. and its subsidiaries and affiliates. |
3. |
Bank Guaranty Facility of KRW 5,000,000,000 between Deutsche Bank AG Seoul Branch and Lam Research Korea LLC YH, dated September 2013. |
4. |
Letter of Credit Facility of USD 89,900 between Deutsche Bank AG New York Branch and Novellus Systems Inc., dated May 26, 2015. |
5. |
Letter of Credit Facility of EUR 86,200 between Deutsche Bank AG New York Branch and Novellus Systems Inc., dated May 20, 2015. |
6. |
Letter of Credit Facility of INR 300,000 between Deutsche Bank AG and Novellus Systems (India) Pvt. Ltd, dated, dated August 22, 2012. |
7. |
Letter agreement dated as of September 6, 2006, between RBS plc (as successor to ABN AMRO Bank N.V.) and the Borrower with respect to a $5,000,000 uncommitted facility to the Borrower and certain of its
Subsidiaries. |
8. |
Continuing Agreement for Standby Letters of Credit dated as of May 10, 2010, between Novellus Systems, Inc. and Deutsche Bank AG New York Branch. |
9. |
All letters of credit issued by any Subsidiary of the Borrower pursuant to the letter agreement dated as of November 19, 2014, between MUFG Union Bank, N.A. and the Borrower with respect to a $10,000,000 letter of
credit facility. |
SCHEDULE 6.02
LIENS
1. |
Liens granted under the Continuing Agreement for Standby Letters of Credit dated as of May 6, 2014, between Lam Research Corporation and The Bank of Tokyo-Mitsubishi UFJ, Ltd. |
2. |
Liens granted under the Continuing Agreement for Commercial & Standby Letters of Credit dated as of October 9, 2015, between Lam Research Corporation and JPMorgan Chase Bank, N.A. and its subsidiaries and
affiliates. |
3. |
Liens granted under the Continuing Agreement for Standby Letters of Credit dated as of May 10, 2010, between Novellus Systems, Inc. and Deutsche Bank AG New York Branch. |
Exhibit 10.3
EXECUTION VERSION
PERSONAL AND CONFIDENTIAL
November 10, 2015
Goldman Sachs Bank USA
Goldman Sachs Lending Partners LLC
200 West Street
New York, New York 10282-2198
Lam Research Corporation
4650 Cushing Parkway
Fremont, California 94538
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Attention: |
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Douglas R. Bettinger |
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Executive Vice President and Chief Financial Officer |
Project Topeka
364-Day Bridge Loan Facility
Joinder Agreement to Commitment Letter
Ladies and Gentlemen:
Reference is made to the Commitment
Letter dated October 20, 2015 (together with all exhibits, schedules and annexes thereto, the Commitment Letter) among Goldman Sachs Bank USA (Goldman Sachs), Goldman Sachs Lending Partners LLC (GS
Lending Partners) and Lam Research Corporation (the Borrower). Unless otherwise defined herein, capitalized terms used herein have the meanings assigned to them in the Commitment Letter.
This joinder agreement to the Commitment Letter (this Joinder Agreement) sets forth the understanding of the parties hereto regarding the
participation of each party identified on the signature pages hereof as an Additional Commitment Party (collectively, the Additional Commitment Parties and together with Goldman Sachs and GS Lending Partners,
the Commitment Parties) in the financing of the Bridge Facility.
On the date hereof the Borrower has entered into a Term Loan
Agreement, dated as of the date hereof (the Term Loan Agreement) among the Borrower, JPMorgan Chase Bank, N.A. as administrative agent and the lenders party thereto, having aggregate commitments of $900,000,000. The Term Loan
Agreement has become effective immediately prior to the effectiveness of this Joinder Agreement, the Borrower acknowledges that the conditions to availability thereunder are no more restrictive to the Borrower than the conditions to availability of
the Bridge Facility, and therefore the commitments with respect to Tranche 2 of the Bridge Facility have been reduced to zero and the commitments with respect to Tranche 1 of the Bridge Facility have been reduced to $3,300,000,000 as of the date
hereof in accordance with the terms of the Commitment Letter.
Each Additional Commitment Party hereby commits to provide to the Borrower, on a several
but not joint basis, in each case on the same terms and conditions as are applicable to each of Goldman Sachs and GS Lending Partners commitments in respect of the Bridge Facility under the Commitment Letter (each such commitment of a
Commitment Party, its Commitment, and, collectively, the Commitments), the principal amount of Tranche 1 of the Bridge Facility set forth opposite such Commitment Partys name on Schedule I attached
hereto. The aggregate commitments of Goldman Sachs and GS Lending Partners with respect to Tranche 1 of the Bridge Facility under the Commitment Letter shall (in accordance with
Section 3 thereof) be reduced on a dollar-for-dollar basis by the aggregate amount of the Commitments of the Additional Commitment Parties upon execution of this Joinder Agreement by each of
the parties hereto, such that, as of the date of this Joinder Agreement, the Commitment of each Commitment Party is as set forth adjacent to its name on Schedule I hereto. In addition, each of the Commitment Parties (or its applicable
affiliate) shall have, with respect to the Bridge Facility, the title set forth adjacent to its name on Schedule I hereto.
Each Additional
Commitment Party acknowledges receipt of a copy of the Commitment Letter and acknowledges that it shall be deemed to be a party to the Commitment Letter as a Commitment Party in accordance with, and to the extent set forth in, this
Joinder Agreement. Each Additional Commitment Party hereby further acknowledges and agrees that (i) the syndication of the Bridge Facility shall be managed by Goldman Sachs until Goldman Sachs determines that the successful syndication of the
Bridge Facility has occurred and (ii) its Commitment shall not be syndicated until notification of the successful syndication of the Bridge Facility by Goldman Sachs.
Each Additional Commitment Party further acknowledges and agrees that it shall not engage, nor shall it authorize any person on its behalf to engage, in any
secondary selling or any solicitation of offers to purchase loans or commitments with respect to the Bridge Facility until such time as Goldman Sachs declares the primary syndication of the Bridge Facility to be complete.
As consideration for the Commitments and agreements of each Additional Commitment Party, the Additional Commitment Parties shall be entitled to receive the
applicable fees as set forth in the Joinder Fee Letter dated the date hereof among the Borrower, Goldman Sachs, GS Lending Partners and each Additional Commitment Party (the Joinder Fee Letter), in accordance with the provisions
hereof and thereof. The Borrower further agrees that in no event shall the fees payable to any Additional Commitment Party (as a percentage of the Commitment of such Additional Commitment Party) exceed the fees payable to Goldman Sachs or GS Lending
Partners (as a percentage of its respective Commitment).
Each party hereto hereby agrees that each Additional Commitment Party shall be bound by the
terms and conditions of the Commitment Letter, and shall have all the rights and obligations with respect to its Commitment, to the same extent as the same are applicable to each of Goldman Sachs and GS Lending Partners each solely in its capacity
as a Commitment Party thereunder (including, without limitation, with respect to indemnification; provided, that (x) the term the Letters as used in Annex A to the Commitment Letter shall be deemed also to
include this Joinder Agreement and the Joinder Fee Letter), (y) the Commitment Letter shall be deemed amended such that the reference to Goldman Sachs in clause (i) of the first sentence of the first paragraph of Section 2
of the Commitment Letter shall be deemed to refer to each Commitment Party and (z) the term the Existing Credit Agreement shall be deemed amended such that each reference to the Existing Credit Agreement in
Annex B to the Commitment Letter (other than the reference to the Existing Credit Agreement in the definition of Excluded Debt therein) shall be deemed to refer to the Term Loan Agreement as defined in this
Joinder Agreement; provided, however, that this paragraph shall not apply to, and the Additional Commitment Parties shall not have any obligations, rights or benefits (except as expressly set forth herein) with respect
to, (a) roles or titles assigned to Goldman Sachs and GS Lending Partners with respect to the Bridge Facility set forth in the Commitment Letter, (b) Section 3 of the Commitment Letter, the provisions applicable only to Goldman Sachs
and GS Lending Partners in Section 6 of the Commitment Letter, or any other provisions thereof applicable to Goldman Sachs in its capacity as Arranger or Administrative Agent and (c) any provisions of the Fee Letter.
This Joinder Agreement may not be assigned by (i) the Borrower without the prior written consent of each Commitment Party or (ii) any Additional
Commitment Party (including, without limitation, any
2
assignment of the Commitment of such Additional Commitment Party) without the prior written consent of each of the Borrower, Goldman Sachs and GS Lending Partners (and, in each case, any
purported assignment without such consent will be null and void), is intended to be solely for the benefit of the parties hereto and is not intended to confer any benefits upon, or create any rights in favor of, any person (including without
limitation your equity holders, employees or creditors) other than the parties hereto (and any indemnified person referred to in Annex A to the Commitment Letter); provided, however, that each Additional Commitment Party
may assign its Commitment and agreements hereunder, in whole or in part, to any of its affiliates subject to the requirements set forth in Section 6 of the Commitment Letter.
This Joinder Agreement may not be amended or any term or provision hereof waived or modified except by an instrument in writing signed by each of the parties
hereto, and each of the Borrower, Goldman Sachs and GS Lending Partners hereby agrees that no amendment, waiver, supplement or other modification of the Commitment Letter that would change any rights, benefits or obligations of any Additional
Commitment Party shall be entered into unless such Additional Commitment Party shall have consented thereto in writing; provided, that the foregoing shall not restrict Goldman Sachs and GS Lending Partners (i) in syndicating their
remaining respective Commitments and entering into additional joinder agreements to the Commitment Letter solely with the Borrower and any additional Commitment Party in connection therewith, (ii) from amending, waiving, supplementing or
otherwise modifying any of their respective rights, benefits or obligations under the Commitment Letter (including, without limitation, under Section 3 thereof, or any other provisions thereof applicable to Goldman Sachs in its capacity as
Arranger or Administrative Agent) as mutually agreed to with the Borrower or (iii) from making any determination in its capacity as Arranger or Administrative Agent as provided in the Commitment Letter.
This Joinder Agreement may be executed in any number of counterparts, each of which when executed will be an original and all of which, when taken together,
will constitute one agreement. Delivery of an executed counterpart of a signature page of this Joinder Agreement by facsimile or other electronic transmission will be as effective as delivery of a manually executed counterpart hereof.
This Joinder Agreement (including all of the terms of the Commitment Letter incorporated by reference herein) and the Joinder Fee Letter are the only
agreements that have been entered into among the Borrower, Goldman Sachs, GS Lending Partners and each Additional Commitment Party with respect to the Bridge Facility and set forth the entire understanding of the parties with respect thereto. No
individual has been authorized by any Additional Commitment Party or any of its respective affiliates to make any oral or written statements that are inconsistent with this Joinder Agreement or the Joinder Fee Letter. Following the execution and
delivery of this Joinder Agreement by each of the parties hereto, the Commitment Letter and this Joinder Agreement shall be construed as a single instrument to the extent necessary to give effect to the provisions hereof. Notwithstanding any
provision hereof or of the Commitment Letter, each party hereto hereby agrees that all obligations of each Commitment Party, whether pursuant hereto or pursuant to the Commitment Letter, shall be several and not joint obligations.
Each party hereto agrees that any suit or proceeding arising in respect of this Joinder Agreement or the Commitment Parties commitments or agreements
hereunder or the Joinder Fee Letter will be tried exclusively in the United States District Court for the Southern District of New York or, if that court does not have subject matter jurisdiction, in any state court located in the City and County of
New York, and each party hereby submits to the exclusive jurisdiction of, and to venue in, such court. Any right to trial by jury with respect to any action or proceeding arising in connection with or as a result of either the Commitment
Parties commitments or agreements or any matter referred to in this Joinder Agreement or the Joinder Fee Letter is hereby waived by the parties hereto. Each party hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
3
other manner provided by law. Service of any process, summons, notice or document by registered mail or overnight courier addressed to any of the parties hereto at the addresses above shall be
effective service of process against such party for any suit, action or proceeding brought in any such court. This Joinder Agreement and the Joinder Fee Letter will be governed by and construed in accordance with the laws of the State of New York
without regard to principles of conflicts of laws; provided, however, that (i) the interpretation of the definition of Target Material Adverse Effect and whether or not a Target Material Adverse Effect has occurred,
(ii) the determination of the accuracy of any Acquisition Representations and whether as a result of any inaccuracy thereof the Borrower, the Merger Subs or their respective affiliates have the right to terminate their respective obligations
under the Acquisition Agreement, or to decline to consummate the Transactions pursuant to the Acquisition Agreement and (iii) the determination of whether the Transactions have been consummated in accordance with the terms of the Acquisition
Agreement, in each case, shall be governed by, and construed and interpreted solely in accordance with, the laws of the State of Delaware without giving effect to conflicts of laws principles that would result in the application of the Law of any
other state.
This Joinder Agreement (including all of the terms of the Commitment Letter incorporated by reference herein) and the other terms and
conditions contained herein shall be subject to the same confidentiality provisions applicable to the Commitment Letter as provided in Section 7 of the Commitment Letter and each Additional Commitment Party acknowledges that it will be subject
to the confidentiality provisions provided in Section 7 of the Commitment Letter as a Commitment Party. Each Joinder Fee Letter and the contents thereof shall be subject to the same confidentiality provisions applicable to the Fee Letter as
provided in Section 7 of the Commitment Letter.
Each Additional Commitment Party acknowledges that it has, independently and without any reliance
upon either Goldman Sachs or GS Lending Partners or any of their respective affiliates, or any of their respective officers, directors, employees, agents, advisors or representatives, and based on the financial statements of the Borrower and its
subsidiaries and the Acquired Business and such other documents as it has deemed appropriate, made its own credit analysis and decision to enter into this Joinder Agreement and to provide its Commitment. As you know, Goldman, Sachs & Co.
has been retained by the Borrower (or one of its affiliates) as financial advisor (in such capacity, the Financial Advisor) in connection with the Acquisition. Each of the parties hereto agrees to such retention, and further
agrees not to assert any claim it might allege based on any actual or potential conflicts of interest that might be asserted to arise or result from, on the one hand, the engagement of the Financial Advisor and, on the other hand, Goldman
Sachs and Goldman Sachs affiliates relationships with you as described and referred to herein. Certain of the Commitment Parties or their respective affiliates are, or may at any time be a lender under one or more existing credit
facilities of the Borrower (and/or of its subsidiaries) (in such capacity, an Existing Lender). The Borrower further acknowledges and agrees for itself and its subsidiaries that any such Existing Lender (a) will be acting for
its own account as principal in connection with such existing credit facilities, (b) will be under no obligation or duty as a result of such Commitment Partys role in connection with the transactions contemplated by this Joinder Agreement
or otherwise to take any action or refrain from taking any action (including with respect to voting for or against any requested amendments), or exercising any rights or remedies, that each Existing Lender may be entitled to take or exercise in
respect of such existing credit facilities and (c) may manage its exposure to such existing credit facilities without regard to such Commitment Partys role hereunder.
The reimbursement, indemnification, confidentiality, absence of fiduciary relationship; affiliates, jurisdiction, waiver of jury trial, venue and governing
law provisions contained herein or incorporated herein by reference to the Commitment Letter and the provisions of the Joinder Fee Letter will remain in full force and effect regardless of whether the Loan Documents are executed and delivered and
notwithstanding the termination of the Commitment Letter or the Commitment Parties respective commitments and agreements thereunder.
4
The Commitments of each Additional Commitment Party will terminate upon the first to occur of (i) the
execution and delivery of the Bridge Loan Agreement by each of the parties thereto, (ii) the consummation of the Acquisition without using the Bridge Loans, (iii) the termination of Borrowers or Merger Subs obligation to
consummate the Acquisition pursuant to, the Acquisition Agreement, and (iv) July 20, 2016 (provided, that, to the extent the Outside Date (as defined in the Acquisition Agreement) is extended to a date (the Extended
Date) that is on or prior to October 20, 2016 in accordance with the terms of Section 8.1(d) of the Acquisition Agreement (as in effect on the date of the Commitment Letter), the date referred to in this clause (iv) shall,
upon notice of such extension to the Arranger from the Borrower, be automatically extended to such Extended Date) (the earliest date in clauses (ii) through (iv) being the Commitment Termination Date).
This Joinder Agreement supersedes any commitment advice or similar letter executed by any Additional Commitment Party on or prior to the date hereof in
connection with the Bridge Facility, which commitment advice or similar letter shall in each case terminate with respect to the Bridge Facility commitments upon the effectiveness of this Joinder Agreement.
For the purposes of this Joinder Agreement and the Joinder Fee Letter (as defined below), Citi shall mean Citigroup Global Markets Inc.
(CGMI), Citibank, N.A., Citicorp USA, Inc., Citicorp North America, Inc. and/or any of their affiliates as Citi shall determine to be appropriate to provide the services contemplated herein and such affiliates shall be entitled to
the benefits afforded to Citi hereunder.
[The remainder of this page is intentionally left blank.]
5
If the foregoing correctly sets forth our agreement, please indicate your acceptance of the terms hereof by
returning to us an executed counterpart hereof.
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Very truly yours, |
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JPMORGAN CHASE BANK, N.A.,
as an Additional Commitment Party |
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By: |
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/s/ Caitlin Stewart |
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Name: Caitlin Stewart |
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Title: Vice President |
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BARCLAYS BANK PLC, |
as an Additional Commitment Party |
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By: |
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/s/ Vanessa Kurbatskiy |
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Name: Vanessa Kurbatskiy |
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Title: Vice President |
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CITIGROUP GLOBAL MARKETS INC., |
as an Additional Commitment Party |
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By: |
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/s/ Richard Rivera |
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Name: Richard Rivera |
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Title: Vice President |
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BNP PARIBAS, |
as an Additional Commitment Party |
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By: |
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/s/ Nicolas Rabier |
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Name: Nicolas Rabier |
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Title: Managing Director |
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By: |
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/s/ Karim Remtouia |
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Name: Karim Remtouia |
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Title: Vice President |
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DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH, |
as an Additional Commitment Party |
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By: |
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/s/ Ming K. Chu |
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Name: Ming K. Chu |
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Title: Vice President |
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By: |
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/s/ Virginia Cosenza |
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Name: Virginia Cosenza |
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Title: Vice President |
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MIZUHO BANK, LTD., |
as an Additional Commitment Party |
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By: |
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/s/ Bertram H. Tang |
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Name: Bertram H. Tang |
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Title: Authorized Signatory |
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THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., |
as an Additional Commitment Party |
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By: |
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/s/ Lillian Kim |
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Name: Lillian Kim |
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Title: Director |
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WELLS FARGO BANK, N.A., |
as an Additional Commitment Party |
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By: |
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/s/ Matthew S. Thoreson |
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Name: Matthew S. Thoreson |
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Title: Senior Vice President |
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DBS BANK LTD., |
as an Additional Commitment Party |
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By: |
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/s/ Saif Amin |
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Name: Saif Amin |
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Title: VP, IBG-TMT |
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HSBC BANK USA, N.A., |
as an Additional Commitment Party |
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By: |
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/s/ Christopher L. Snider |
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Name: |
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Christopher L. Snider |
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Title: |
|
Vice President, Senior Relationship Manager |
|
|
|
PNC CAPITAL MARKETS LLC, |
as an Additional Commitment Party |
|
|
By: |
|
/s/ John Broeren |
|
|
Name: John Broeren |
|
|
Title: Managing Director |
|
|
By: |
|
/s/ Brian Prettyman |
|
|
Name: Brian Prettyman |
|
|
Title: Senior Vice President |
|
|
|
SUNTRUST BANK, |
as an Additional Commitment Party |
|
|
By: |
|
/s/ Min Park |
|
|
Name: Min Park |
|
|
Title: Vice President |
ACCEPTED AND AGREED TO AS OF THE DATE FIRST WRITTEN ABOVE:
|
|
|
GOLDMAN SACHS BANK USA |
|
|
By: |
|
/s/ Robert Ehudin |
|
|
Authorized Signatory |
|
GOLDMAN SACHS LENDING PARTNERS LLC |
|
|
By: |
|
/s/ Robert Ehudin |
|
|
Authorized Signatory |
|
|
|
|
|
LAM RESEARCH CORPORATION |
|
|
By: |
|
/s/ Douglas R. Bettinger |
|
|
Name: |
|
Douglas R. Bettinger |
|
|
Title: |
|
Executive Vice President and Chief Financial Officer |
Schedule I
Commitments
|
|
|
|
|
|
|
|
|
|
|
Commitment Party |
|
Title |
|
Tranche 1 Commitment |
|
|
Tranche 2 Commitment |
|
Goldman Sachs Bank USA |
|
Sole Lead Arranger, Sole Bookrunner and Administrative Agent |
|
$ |
1,089,000,000 |
|
|
$ |
0 |
|
Goldman Sachs Lending Partners LLC |
|
N/A |
|
$ |
0 |
|
|
$ |
0 |
|
JPMorgan Chase Bank, N.A. |
|
Co-Arranger |
|
$ |
375,000,000 |
|
|
$ |
0 |
|
Barclays Bank PLC |
|
Co-Arranger |
|
$ |
375,000,000 |
|
|
$ |
0 |
|
Citigroup Global Markets Inc. |
|
Co-Arranger |
|
$ |
375,000,000 |
|
|
$ |
0 |
|
BNP Paribas |
|
Documentation Agent |
|
$ |
165,200,000 |
|
|
$ |
0 |
|
Deutsche Bank AG Cayman Islands Branch / Deutsche Bank Securities Inc. |
|
Documentation Agent |
|
$ |
165,200,000 |
|
|
$ |
0 |
|
Mizuho Bank, Ltd. |
|
Documentation Agent |
|
$ |
165,200,000 |
|
|
$ |
0 |
|
The Bank of Tokyo-Mitsubishi UFJ, Ltd. |
|
Documentation Agent |
|
$ |
165,200,000 |
|
|
$ |
0 |
|
Wells Fargo Bank, N.A. |
|
Documentation Agent |
|
$ |
165,200,000 |
|
|
$ |
0 |
|
DBS Bank Ltd. |
|
N/A |
|
$ |
65,000,000 |
|
|
$ |
0 |
|
HSBC Bank USA, National Association |
|
N/A |
|
$ |
65,000,000 |
|
|
$ |
0 |
|
PNC Capital Markets LLC |
|
N/A |
|
$ |
65,000,000 |
|
|
$ |
0 |
|
SunTrust Bank |
|
N/A |
|
$ |
65,000,000 |
|
|
$ |
0 |
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
$ |
3,300,000,000 |
|
|
$ |
0 |
|
|
|
|
|
|
|
|
|
|
|
|
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