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Exhibit 10.23
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT NO. 1 dated as of February 12, 1996 to the Credit
Agreement dated as of September 8, 1994 (the "Agreement") among APPLIED
MATERIALS, INC. (the "Company"), the BANKS party thereto on the date hereof (the
"Existing Banks"), CITICORP USA, INC. and MELLON BANK, N.A. (the "Additional
Banks") and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
WHEREAS, the parties hereto desire to amend the Agreement to
(i) increase the aggregate amount of the Commitments from $125,000,000 to
$240,000,000, (ii) add the Additional Banks as parties to the Agreement, (iii)
change the Termination Date from September 7, 1998 to February 11, 2000, (iv)
lower the applicable rates of interest and facility fees, (v) amend the covenant
requiring the Company to maintain a minimum Consolidated Tangible Net Worth,
(vi) confirm that the Company may use the Agreement to backstop its commercial
paper and eliminate certain conditions to a borrowing for such purpose and (vii)
permit the Company to use the proceeds of Loans hereunder to buy its own common
stock;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions, References. Unless otherwise
specifically defined herein, each term used herein which is defined in the
Agreement has the meaning assigned to such term in the Agreement. Each reference
to "hereof", "hereunder", "herein" and "hereby" and each other similar
reference, and each reference to "this Agreement" and each other similar
reference, contained in the Agreement shall on and after the Amendment Effective
Date (as defined in Section 11 hereof) refer to the Agreement as amended hereby.
SECTION 2. Increased Commitments. (a) The signature pages of
the Agreement are amended by deleting the heading "Commitments" and the dollar
amounts set forth under said heading.
(b) The Commitment Schedule attached to this Amendment is
added to the Agreement immediately after the signature pages thereof.
(c) The definition of "Commitment" in Section 1.01 of the
Agreement is amended to read as follows:
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"Commitment" means, with respect to each Bank, the amount set
forth opposite the name of such Bank on the Commitment Schedule
attached hereto (or, in the case of an Assignee, the portion of the
transferor Bank's Commitment assigned to such Assignee pursuant to
Section 9.06(c)), in each case as such amount may be reduced from time
to time pursuant to Section 2.09 or changed as a result of an
assignment pursuant to Section 9.06(c).
SECTION 3. Additional Banks. (a) On the Amendment Effective
Date each of Citicorp USA, Inc. and Mellon Bank, N.A. will become a party to the
Agreement as a Bank with a Commitment in the amount set forth opposite its name
on the Commitment Schedule attached hereto.
(b) The definition of "Bank" in Section 1.01 of the Agreement
is amended to read as follows:
"Bank" means each bank listed on the Commitment Schedule
attached hereto, each Assignee which becomes a Bank pursuant to Section
9.06(c), and their respective successors; provided that, for purposes
of any determination made with respect to Citicorp USA, Inc. under
Section 2.13, 8.01, 8.02 or 8.03, the term "Bank" shall be deemed to
include Citibank, N.A.
(c) Section 9.06(d) of the Agreement is amended to read as
follows:
(d) Any Bank may at any time assign all or any portion of its
rights under this Agreement and its Note (i) directly to a Federal
Reserve Bank or (ii) to an affiliate of such Bank which in turn assigns
such rights to a Federal Reserve Bank. No such assignment shall release
the transferor Bank from its obligations hereunder.
SECTION 4. Extension of Term. The definition of "Termination
Date" in Section 1.01 of the Agreement is amended by changing "September 7,
1998" to "February 11, 2000".
SECTION 5. Reduced Pricing. The Pricing Schedule attached to
the Agreement is deleted and replaced by the Pricing Schedule attached to this
Amendment. Interest (if any) and fees accrued prior to the Amendment Effective
Date shall be payable at the rates specified in the original Pricing Schedule.
Interest and fees accruing on and after the Amendment Effective Date shall be
payable at the rates specified in the Pricing Schedule attached hereto.
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SECTION 6. Consolidated Tangible Net Worth. (a) The first
sentence of Section 5.12(a) of the Agreement is amended to read as follows:
The Company will at all times keep and maintain Consolidated Tangible
Net Worth (adjusted as provided in subsections (b) and (c) of this
Section, if applicable) at an amount not less than the amount
determined by adding (or subtracting in the case of
clause (iv) below) the following:
(i) $1,427,000,000 plus
(ii) 50% of Consolidated Net Income (adjusted as
provided in subsections (b) and (c) of this Section, if
applicable) for the period from October 29, 1995 to and
including the date of any calculation hereunder plus
(iii) 100% of the net proceeds of any sales or
issuances of capital stock of the Company during the period
from October 29, 1995 to and including the date of any
calculation hereunder less
(iv) the aggregate amount by which Consolidated
Tangible Net Worth is reduced after October 29, 1995 as a
result of purchases by the Company of its own common stock,
provided that the amount subtracted pursuant to this clause
(iv) shall not exceed the sum of (x) the net proceeds (to the
extent received by the Company in cash) added pursuant to
clause (iii) above plus (y) $143,000,000.
(b) Subsections (b) and (c) of Section 5.12 of the Agreement
are amended by changing the date "May 1, 1994", wherever it appears in said
subsections, to "October 29, 1995".
SECTION 7. Commercial Paper Backstop. (a) Section 1.01 of the
Agreement is amended by adding the following new definition immediately after
the definition of "Consolidated Total Assets":
"CP Backstop Borrowing" means a Borrowing the proceeds of
which are used solely for the purpose of repaying outstanding
commercial paper issued by the Company.
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(b) Clause (e) of Section 3.02 is amended to read as follows:
(e) the fact that the representations and warranties of the
Company contained in this Agreement (except, in the case of a Refunding
Borrowing or a CP Backstop Borrowing, the representations and
warranties set forth in Sections 4.04(c) and 4.05 as to any matter
which has theretofore been disclosed in writing by the Company to the
Banks) shall be true on and as of the date of such Borrowing.
SECTION 8. Use of Proceeds. Section 5.08 of the Agreement is
amended to read as follows:
SECTION 5.08. Use of Proceeds. The proceeds of the Loans made
under this Agreement will be used by the Company to backstop its
commercial paper and for other general corporate purposes. None of such
proceeds will be used, directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of buying or carrying any "margin
stock" within the meaning of Regulation U, provided that the Company
may use such proceeds to buy and/or carry shares of its own common
stock.
SECTION 9. Representations and Warranties. (a) Section 4.04(a)
of the Agreement is amended by changing the date "October 31, 1993" to "October
29, 1995" and changing the reference to "the Company's 1993 Form 10-K" to "the
Company's 1995 Form 10-K".
(b) The definition of "Company's 1993 Form 10-K" in Section
1.01 of the Agreement is deleted and replaced by the following new definition:
"Company's 1995 Form 10-K" means the Company's annual report
on Form 10-K for 1995, as filed with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934.
(c) Subsections (b) and (c) of Section 4.04 of the Agreement
are deleted and replaced by the following new subsection (b):
(b) Since October 29, 1995 there has been no material adverse
change in the business, financial position, results of operations or
prospects of the Company and its Relevant Subsidiaries, considered as a
whole.
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(d) Sections 4.05 and 4.07 of the Agreement are each amended
by deleting the words "the Company's 1993 Form 10-K and the Company's Latest
Form 10-Q" and replacing them with the words "the Company's 1995 Form 10-K".
(e) The definition of "Company's Latest Form 10-Q" in Section
1.01 of the Agreement is deleted.
(f) The Company represents and warrants that each of the
representations and warranties contained in Article IV of the Agreement (as
amended pursuant to this Section 9) is true on and as of the date of this
Amendment and will be true on and as of the Amendment Effective Date immediately
after this Amendment becomes effective.
(g) Each of the Existing Banks and Additional Banks represents
to the Agent and each of the other Existing Banks and Additional Banks that it
in good faith is not relying upon any "margin stock" (as defined in Regulation
U) as collateral in the extension or maintenance of the credit provided for in
the Agreement as amended by this Amendment.
SECTION 10. Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 11. Counterparts; Effectiveness. This Amendment may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Amendment shall become effective on the date (the "Amendment
Effective Date") when the Agent shall have received all of the following:
(i) from each of the Company, the Existing Banks, the
Additional Banks and the Agent, either a counterpart hereof signed by
such party or telex, facsimile or other written confirmation that such
party has signed a counterpart hereof;
(ii) an opinion dated the Amendment Effective Date of ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Director, Legal Affairs for the Company, substantially in the
form of Exhibit A hereto and covering such additional matters relating
to the transactions contemplated hereby as the Required Banks may
reasonably request;
(iii) an opinion dated the Amendment Effective Date of ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the Agent, substantially in the
form of Exhibit B hereto and covering such additional matters relating
to the
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transactions contemplated hereby as the Required Banks may reasonably
request;
(iv) all documents the Agent may reasonably request relating
to the existence of the Company, the corporate authority for and the
validity of this Amendment, the Agreement as amended hereby and the
Notes, and any other matters relevant hereto, all in form and substance
satisfactory to the Agent;
(v) a duly executed Note for the account of each Additional
Bank, dated on or before the Amendment Effective Date and complying
with the provisions of Section 2.05 of the Agreement; and
(vi) payment, for the account of the Existing Banks, of all
unpaid facility fees accrued under the Agreement to but excluding the
Amendment Effective Date.
When the Amendment Effective Date occurs, the Agent shall promptly notify the
Company, the Existing Banks and the Additional Banks thereof, and such notice
shall be conclusive and binding on all parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
APPLIED MATERIALS, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Title: Senior Vice President and
Chief Financial Officer
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Title: Vice President, Corporate
Finance and Treasurer
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
--------------------------------------
Title: Associate
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Title: Vice President
ABN AMRO BANK N.V. SAN FRANCISCO
INTERNATIONAL BRANCH
By: ABN AMRO NORTH AMERICA, INC.,
as its agent
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Title: Vice President & Director
By /s/ R. ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Title: SVP & Managing Director
THE BANK OF CALIFORNIA, N.A.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Title: Vice President
BANQUE NATIONALE DE PARIS
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Title: Vice President
By /s/ ▇▇▇▇▇▇▇ ▇▇▇
--------------------------------------
Title: Assistant Vice President
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Ex. 10.23
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CITICORP USA, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D.
--------------------------------------
Attorney In Fact
CREDIT SUISSE
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Title:▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Member of Senior Management
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Title: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Member of Senior Management
DEUTSCHE BANK AG, LOS ANGELES
AND/OR CAYMAN ISLANDS BRANCHES
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Title: Vice President
By /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Title: Vice President
MELLON BANK, N.A.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Title: Vice President
UNION BANK
By /s/ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Title: Vice President and District
Manager
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▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
--------------------------------------
Title: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Associate
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COMMITMENT SCHEDULE
Name of Bank Commitment
------------ ----------
▇▇▇▇▇▇ Guaranty Trust Company $45,000,000
of New York
Bank of America National Trust $30,000,000
and Savings Association
ABN Amro Bank N.V. San Francisco $22,500,000
International Branch
The Bank of California $15,000,000
Banque Nationale de Paris $22,500,000
Citicorp USA, Inc. $22,500,000
Credit Suisse $22,500,000
Deutsche Bank AG, Los Angeles $22,500,000
and/or Cayman Islands Branches
Mellon Bank, N.A. $22,500,000
Union Bank $15,000,000
------------
Total $240,000,000
============
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PRICING SCHEDULE
The "Euro-Dollar Margin", "CD Margin" and "Facility Fee Rate"
for any day are the respective rates per annum set forth below in the applicable
row in the column corresponding to the Pricing Level that applies on such day:
=============================================================================================================
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇ II III IV V
=============================================================================================================
Euro-Dollar 0.165 0.200 0.280% 0.375 0.500
Margin % % % %
-------------------------------------------------------------------------------------------------------------
CD Margin 0.290 0.325 0.405% 0.500 0.625
% % % %
-------------------------------------------------------------------------------------------------------------
Facility 0.085 0.100 0.120% 0.175 0.250
Fee Rate % % % %
=============================================================================================================
For purposes of this Pricing Schedule, the following terms
have the following meanings:
"Level I Pricing" applies on any day if, on such day, the
Company's long-term debt is rated A- or higher by S&P or A3 or higher by
Moody's.
"Level II Pricing" applies on any day if on such day, (i) the
Company's long-term debt is rated BBB+ by S&P or Baa1 by Moody's and (ii) Level
I Pricing does not apply.
"Level III Pricing" applies on any day if, on such day, (i)
the Company's long-term debt is rated BBB by S&P or Baa2 by Moody's and (ii)
neither Level I Pricing nor Level II Pricing applies.
"Level IV Pricing" applies on any day if, on such day, (i) the
Company's long-term debt is rated BBB- by S&P or Baa3 by Moody's and (ii) none
of Level I Pricing, Level II Pricing or Level III Pricing applies.
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"Level V Pricing" applies on any day if, on such day, no other
Pricing Level applies.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Pricing Level" means any one of the five pricing levels
represented by Level I Pricing, Level II Pricing, Level III Pricing, Level IV
Pricing and Level V Pricing.
"S&P" means Standard & Poor's Ratings Services.
The ratings to be utilized for purposes of this Pricing Schedule are those
assigned to the senior unsecured long-term debt securities of the Company
without third-party credit enhancement, and any rating assigned to any other
debt security of the Company shall be disregarded. The rating in effect on any
day is the rating in effect at the close of business on such day.
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EXHIBIT A
OPINION OF COUNSEL FOR THE COMPANY
To the Existing Banks, Additional Banks
and Agent Referred to Below
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I have acted as counsel to Applied Materials, Inc., a Delaware
corporation (the "Company"), in connection with the execution and delivery of
Amendment No. 1 dated as of February 12, 1996 ("Amendment No. 1") to the Credit
Agreement dated as of September 8, 1994 (the "Credit Agreement") among the
Company, the Banks signatory thereto (the "Existing Banks") and ▇▇▇▇▇▇ Guaranty
Trust Company of New York, as Agent. Except as otherwise defined herein, all
terms used herein and defined in the Credit Agreement or in Amendment No. 1 have
the meanings assigned to them therein.
In connection with this opinion, I have examined executed
originals or copies of Amendment No. 1, the Credit Agreement, the Notes
originally issued to the Existing Banks (the "Existing Notes") and the Notes
issued to the Additional Banks today (the "Additional Notes") and such other
documents, records, agreements and certificates as I have deemed appropriate. I
have also reviewed such matters of law as I have considered relevant for the
purpose of this opinion.
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Based upon the foregoing, I am of the opinion that:
1. Each of the Company and its Restricted Subsidiaries is a
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation; has the corporate power and
authority to own its assets and to transact the business in which it is now
engaged or proposed to be engaged; and is duly licensed or qualified and is in
good standing as a foreign corporation in each jurisdiction wherein the nature
of the business transacted by it or the nature of the property owned or leased
by it makes such licensing or qualification necessary, except where the failure
to be so licensed, qualified or in good standing would not, in the aggregate,
have a Material Adverse Effect.
2. The execution and delivery by the Company of Amendment No.
1, the Credit Agreement and the Existing Notes and Additional Notes
(collectively, the "Notes") and the performance by the Company of its
obligations under the Credit Agreement as amended by Amendment No. 1 and under
the Notes (i) are within the Company's corporate powers, (ii) have been duly
authorized by all necessary corporate action, (iii) require no action by or in
respect of, or filing with, any governmental body, agency or official, (iv) do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of the certificate of incorporation or by-laws of the Company
or, to the best of my knowledge, of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Company or any of its Subsidiaries
and (v) do not result in the creation or imposition of any Lien on any asset of
the Company or any of its Restricted Subsidiaries.
3. To the best of my knowledge, except as set forth under the
heading "Legal Proceedings" in the Company's 1995 Form 10-K, there are no
pending or threatened actions, suits or proceedings against or affecting the
Company or any of its Subsidiaries before any court, governmental agency or
arbitrator in which there is a reasonable possibility of an
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adverse determination which would have a Material Adverse Effect, or which in
any manner draws into question the validity of Amendment No. 1, the Credit
Agreement as amended thereby or any of the Notes.
4. Amendment No. 1 and the Credit Agreement as amended thereby
constitute valid and binding agreements of the Company and each Note constitutes
a valid and binding obligation of the Company, in each case enforceable in
accordance with its terms. The Existing Notes evidence the Company's obligation
to pay the principal of and interest on any and all Loans made by the Existing
Banks under the Credit Agreement as amended from time to time and accordingly
they do not need to be replaced in connection with the execution and delivery of
Amendment No. 1.
Certain Assumptions
With your permission I have assumed the following: (a) the
authenticity of original documents and the genuineness of all signatures; (b)
the conformity to the originals of all documents submitted to me as copies and
the truth, accuracy, and completeness of the information, representations and
warranties contained in the records, documents, instruments and certificates I
have reviewed; and (c) the absence of any evidence extrinsic to the provisions
of the written agreements between the parties that the parties intended a
meaning contrary to that expressed by those provisions.
Certain Limitations and Qualifications
I express no opinion as to laws other than laws of the State
of California, the federal law of the United States of America, the General
Corporation Law of the State of Delaware and the official statutes of other
jurisdictions to the extent necessary to render the opinions as to corporate
authority in paragraph 1 above. I am licensed to practice law only in the State
of California.
With your permission, I have assumed for the purpose of
rendering this opinion that the laws
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of the State of California govern the transaction, notwithstanding that
Amendment No. 1, the Credit Agreement and the Notes state that they are to be
governed by New York law.
My opinion that any document is legal, valid, binding, or
enforceable in accordance with its terms is qualified as to:
(a) limitations imposed by bankruptcy, insolvency,
reorganization, arrangement, fraudulent conveyance, moratorium, or other similar
laws relating to or affecting the enforcement of creditors' rights generally;
(b) general principles of equity, including without limitation
concepts of mutuality, reasonableness, good faith and fair dealing, and the
possible unavailability of specific performance or injunctive relief, regardless
of whether such enforceability is considered in a proceeding in equity or at
law;
(c) the possibility that certain covenants and provisions for
the acceleration of the maturity of the Notes may not be enforceable if
enforcement would be unreasonable under the then existing circumstances, but in
my opinion acceleration would be available if an event of default occurred as a
result of a material breach of a material covenant;
(d) the unenforceability under certain circumstances of
provisions imposing penalties, forfeiture, late payment charges or an increase
in interest rate upon delinquency in payment or the occurrence of any event of
default;
(e) rights to indemnification and contribution which may be
limited by applicable law and equitable principles; and
(f) the unenforceability under certain circumstances of
provisions expressly or by implication waiving broadly or vaguely stated rights
(including, without limitation, waivers of any objection to venue and forum non
conveniens and the
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right to a jury trial), the benefits of statutory constitutional provisions,
unknown future rights, and defenses to obligations or rights granted by law,
where such waivers are against public policy or prohibited by law.
The phrase "to the best of my knowledge" is intended to
indicate that, during the course of the performance of my duties as Director,
Legal Affairs, of the Company, no information that would give me current actual
knowledge of the inaccuracy of such statement has come to my attention.
Use of Opinion
This opinion is solely for your benefit (and the benefit of
any Assignee which becomes a Bank pursuant to Section 9.06(c) of the Credit
Agreement) in connection with the transaction covered by the first paragraph of
this letter and may not be relied upon by any other person without my prior
written approval. I disclaim any obligation to update this opinion for events
occurring or coming to my attention after the date hereof.
Very truly yours,
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Director, Legal
Affairs
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▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
SPECIAL COUNSEL FOR THE AGENT
To the Existing Banks, Additional Banks
and Agent Referred to Below
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We have participated in the preparation of Amendment No. 1
dated as of February 12, 1996 ("Amendment No. 1") to the Credit Agreement dated
as of September 8, 1994 (the "Credit Agreement") among Applied Materials, Inc.,
a Delaware corporation (the "Company"), the banks listed on the signature pages
thereof (the "Existing Banks") and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Agent (the "Agent"), and have acted as special counsel for the Agent for the
purpose of rendering this opinion pursuant to Section 11(iii) of Amendment No.
1. Except as otherwise defined herein, all terms defined in the Credit Agreement
or in Amendment No. 1 are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
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Upon the basis of the foregoing, we are of the opinion that:
1. The execution and delivery by the Company of Amendment No.
1, the Notes being issued to the Additional Banks today (the "Additional
Notes"), the Credit Agreement and the Notes originally issued to the Existing
Banks (the "Existing Notes") are within the Company's corporate powers and have
been duly authorized by all necessary corporate action.
2. The performance by the Company of its obligations under the
Credit Agreement as amended by Amendment No. 1 and the Existing Notes and
Additional Notes (collectively, the "Notes") is within the Company's corporate
powers and has been duly authorized by all necessary corporate action.
3. Amendment No. 1 and the Credit Agreement as amended thereby
constitute valid and binding agreements of the Company and each Note constitutes
a valid and binding obligation of the Company, in each case enforceable in
accordance with its terms, except as limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by general principles of
equity.
4. The Existing Notes evidence the Company's obligation to pay
the principal of and interest on any and all Loans made by the Existing Banks
under the Credit Agreement as amended from time to time, and accordingly they do
not need to be replaced in connection with the execution and delivery of
Amendment No. 1.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York, the federal
laws of the United States of America and the General Corporation Law of the
State of Delaware. In giving the foregoing opinion, we express no opinion as to
the effect (if any) of any law of any jurisdiction (except the State of New
York) in which any Bank is located which limits the rate of interest that such
Bank may charge or collect.
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This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by any other person without our prior written consent.
Very truly yours,
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