SECOND AMENDMENT TO LINE OF CREDIT AGREEMENT
This SECOND AMENDMENT TO LINE OF CREDIT AGREEMENT ("SECOND AMENDMENT"),
dated as of April 5, 1996, is entered into by and between Novellus Systems, Inc.
("BORROWER") and Sanwa Bank California ("BANK").
RECITALS
A. The Bank and the Borrower are parties to a Line of Credit Agreement
dated as of June 13, 1994, as amended by the Amendment to Credit Agreement dated
as of May 2, 1995, (as so amended, the "Credit Agreement"), pursuant to which
the Bank has extended certain credit facilities to the Borrower and certain of
its subsidiaries.
B. The Borrower has requested that the Bank agree to certain amendments
to the Credit Agreement.
C. The Bank is willing to amend the Credit Agreement, subject to the
terms and conditions of this Second Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledge, Bank and Borrower mutually agree to amend said
Credit Agreement as follows:
1. DEFINED TERMS. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT.
(a) Section 4.05 of the Credit Agreement is hereby amended to
add the following at the end of the subsection;
"The Bank acknowledges that the Borrower will enter into a
Purchase and Master Lease Agreement, dated as of April 10, 1996, by and among
Novellus Systems, Inc., the lessors referred to therein and Sumitomo Bank
Leasing and Finance, Inc. as agent for the lessors, as the same may be amended
from time to time and that from time to time Borrower may grant a security
interest with respect to its assets in connection with Borrower's obligations
under the Lease, and the Bank further acknowledges and agrees that the entering
into the Lease and the granting from time to time of such security interests
shall not be deemed to constitute a material adverse change in the financial
condition or operations of Borrower.
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(b) Section 5.12 of the Credit Agreement shall be amended
by replacing the semicolon at the end of subsection with a semicolon and adding
the following:
"provided, however, security interests granted from time to
time in connection with the obligations of Borrower pursuant to the Lease shall
not violate the terms of this subsection or this Agreement."
3. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and warrants to the Bank as follows:
(a) No Event of Default, or event which with the giving of
notice, the lapse of time, or both, would be an Event of Default, has occurred
and is continuing.
(b) The execution, delivery and performance by the Borrower
of this Second Amendment have been duly authorized by all necessary corporate
and other action and do not and will not require any registration with, consent
or approval of, notice to or action by, any person (including any governmental
authority) in order to be effective and enforceable. The Credit Agreement as
amended by this Second Amendment constitutes the legal, valid and binding
obligations of the Borrower, enforceable against it in accordance with its
respective terms, without defense, counterclaim or offset.
(c) All representations and warranties of the Borrower
contained in the Credit Agreement are true and correct.
(d) The Borrower is entering this Second Amendment on the
basis of its own investigation and for its own reasons, without reliance upon
the Bank or any other person.
4. EFFECTIVE DATE. This Second Amendment will become effective as
of April 5, 1996 (the "Effective Date"), provided that the Bank has received
from the Borrower a duly executed original of this Second Amendment.
5. RESERVATION OF RIGHTS. The Borrower acknowledges and agrees that
the execution and delivery by the Bank of this Second Amendment shall not be
deemed to create a course of dealing or otherwise obligate the Bank to forbear
or execute similar amendments under the same or similar circumstances in the
future.
6. MISCELLANEOUS.
(a) Except as herein expressly amended, all terms, covenants
and provisions of the Credit Agreement are and shall remain in full force and
effect and all references therein to the Credit Agreement shall henceforth refer
to the Credit Agreement as amended by this Second Amendment. This Second
Amendment shall be deemed incorporated into, and a part of, the Credit
Agreement.
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(b) This Second Amendment shall be binding upon and insure
to the benefit of the parties hereto and thereto and their respective successors
and assigns. No third party beneficiaries are intended in connection with this
Second Amendment.
(c) This Second Amendment shall be governed by and
construed in accordance with the law of the State of California (without regard
to principles of conflicts of laws).
(d) This Second Amendment may be executed in any number
of counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
(e) This Second Amendment, together with the Credit
Agreement, contains the entire and exclusive agreement of the parties hereto
with reference to the matters discussed herein and therein. This Second
Amendment supersedes all prior drafts and communications with respect thereto.
This Second Amendment may not be amended except in writing executed by the
Borrower and the Bank.
(f) If any term or provision of this Second Amendment shall
be deemed prohibited by or invalid under any applicable law, such provision
shall be invalidated without affecting the remaining provisions of this Second
Amendment or the Credit Agreement, respectively.
(g) Borrower covenants to pay to or reimburse the Bank,
upon demand, for all costs and expenses (including allocated costs of in-house
counsel) incurred in connection with the development, preparation, negotiation,
execution and delivery of this Second Amendment.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Second Amendment as of the date first above written.
SANWA BANK CALIFORNIA NOVELLUS SYSTEMS, INC.
By: /s/ illegible By: /s/ Xxxxxxx X. Xxxx
------------------------------------- ------------------------------
Title: VP & Manager Title: Chief Financial Officer
Title:
/s/ Xxxx X. Xxxx
Treasurer
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