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EXHIBIT 10.4
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of April 13, 2001, is entered into by and among:
(1) NOVELLUS SYSTEMS, INC., a California corporation
("Borrower");
(2) Each of the financial institutions listed in Schedule I to
the Credit Agreement referred to in Recital A below (collectively, the
"Lenders"); and
(3) ABN AMRO BANK N.V., as agent for the Lenders (in such
capacity, "Agent").
RECITALS
A. Borrower, Lenders and Agent are parties to a Credit Agreement dated
as of June 9, 1997 (as amended by a First Amendment thereto dated as of August
28, 1997, the "Credit Agreement"), pursuant to which Lenders have provided to
Borrower a certain credit facility.
B. Borrower now has requested Lenders and Agent to amend the Credit
Agreement to make certain changes thereto.
C. Lenders and Agent are willing so to amend the Credit Agreement upon
the terms and subject to the conditions set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Borrower, the Lenders and Agent hereby agree as follows:
1. DEFINITIONS, INTERPRETATION. All capitalized terms defined above and
elsewhere in this Amendment shall be used herein as so defined. Unless otherwise
defined herein, all other capitalized terms used herein shall have the
respective meanings given to those terms in the Credit Agreement, as amended by
this Amendment. The rules of construction set forth in Schedule 1.02 to the
Credit Agreement shall, to the extent not inconsistent with the terms of this
Amendment, apply to this Amendment and are hereby incorporated by reference.
2. AMENDMENTS TO CREDIT AGREEMENT. Subject to the satisfaction of the
conditions set forth in Paragraph 4 below, the Credit Agreement is hereby
amended as follows:
(a) Paragraph 1.01 is amended by changing the definitions of the
following terms appearing therein to read in their entireties as
follows:
"Adjusted Net Income" shall mean, with respect to
Borrower for any period, the sum, determined on a consolidated
basis in accordance with GAAP, of the following:
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(a) The net income or net loss of Borrower and
its Subsidiaries for such period before provision for
income taxes;
plus
(b) The sum (to the extent deducted in
calculating net income or loss in clause (a) above) of
(i) all Interest Expenses of Borrower and its
Subsidiaries accruing during such period, (ii) all
depreciation and amortization expenses of Borrower and
its Subsidiaries accruing during such period, and (iii)
all rental expenses of Borrower and its Subsidiaries
accruing during such period (excluding any rental
expenses that are capitalized by the lessor during such
period);
minus
(c) Fifty percent (50%) of all Capital
Expenditures of Borrower and its Subsidiaries accruing
during such period.
"Agent's Fee Letter" shall mean collectively the letter
agreement dated as of May 9, 1997 between Borrower and Agent
regarding certain fees payable by Borrower to Agent and the
letter agreements dated as of October 11, 2000 and December 5,
2000 between Borrower and Agent regarding certain other fees
payable by Borrower to Agent.
"Credit Documents" shall mean and include this
Agreement, the Notes and the Agent's Fee Letter; all other
notices, requests, certificates, documents, instruments and
agreements delivered to Agent or any Lender pursuant to
Paragraph 3.01; all other notices, requests, certificates,
documents, instruments and agreements required to be delivered
to Agent or any Lender in connection with any of the foregoing
on or after the date of this Agreement; and all Rate Contracts
provided to Borrower by any Lender to hedge against fluctuations
in the LIBO Rate. (Without limiting the generality of the
preceding definition, the term "Credit Documents" shall include
all written waivers, amendments and modifications to any of the
notices, requests, certificates, documents, instruments and
agreements referred to therein.)
"Debt Service Coverage Ratio" shall mean, with respect
to Borrower for any period, the ratio, determined on a
consolidated basis in accordance with GAAP, of:
(a) The Adjusted Net Income of Borrower for such
period;
to
(b) The sum of (i) all Interest Expenses of
Borrower and its Subsidiaries accruing during such
period, (ii) all rental expenses of Borrower and its
Subsidiaries accruing during such period (excluding any
rental expenses that are capitalized by the lessor
during such period), and (iii) 25% of all payments of
principal (or, in the case of Capital Leases, amounts
attributable to principal) of Funded Indebtedness
(excluding
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Synthetic Lease Obligations) paid or scheduled to be
paid by Borrower and its Subsidiaries due within one
year.
"EBITDA" shall mean, with respect to Borrower for any
period, the sum, determined on a consolidated basis in
accordance with GAAP, of the following:
(a) The net income or net loss of Borrower and
its Subsidiaries for such period before provision for
income taxes;
plus
(b) The sum (to the extent deducted in
calculating net income or loss in clause (a) above) of
(i) all Interest Expenses of Borrower and its
Subsidiaries accruing during such period and (ii) all
depreciation and amortization expenses of Borrower and
its Subsidiaries accruing during such period.
"Funded Indebtedness" of any Person shall mean, without
duplication:
(a) All obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments
and all other obligations of such Person for borrowed
money (including obligations to repurchase receivables
and other assets sold with recourse);
(b) All obligations of such Person for the
deferred purchase price of property or services
(including obligations under letters of credit and other
credit facilities which secure or finance such purchase
price but excluding trade payables incurred by such
Person in the ordinary course of its business on
ordinary terms and not overdue) and all Synthetic Lease
Obligations of such Person (excluding the Economically
Defeased Portion of Synthetic Lease Obligations);
(c) All obligations of such Person under
conditional sale or other title retention agreements
with respect to property acquired by such Person (to the
extent of the value of such property if the rights and
remedies of the seller or lender under such agreement in
the event of default are limited solely to repossession
or sale of such property); and
(d) All obligations of such Person as borrower
under or with respect to Capital Leases.
"Pension Plan" shall mean any Employee Benefit Plan
subject to Title IV of ERISA that either Borrower or any ERISA
Affiliate maintains or contributes to or has any obligation
under.
"Quick Ratio" shall mean, with respect to Borrower at
any time, the ratio, determined on a consolidated basis in
accordance with GAAP, of:
(a) The remainder of (i) the sum (without
duplication) of all cash, Cash Equivalents, short-term
investments and net accounts
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receivable of Borrower and its Subsidiaries at such
time, minus (ii) the sum (without duplication) of all
such cash, Cash Equivalents, short-term investments and
net accounts receivable that are subject to a Lien or
are otherwise restricted;
to
(b) The current liabilities of Borrower and its
Subsidiaries at such time.
(In calculating the Quick Ratio, Cash Equivalents and short-term
investments shall be marked to market quarterly.)
(b) Paragraph 1.01 is further amended by adding thereto, in the
appropriate alphabetical order, the definitions of the following terms
to read in their entireties as follows:
"Cash Balances" shall mean, with respect to Borrower and
its Subsidiaries at any time, the sum, determined on a
consolidated basis in accordance with GAAP, of (a) the
unrestricted, unencumbered cash of Borrower and its Subsidiaries
at such time and (b) the market value of unrestricted,
unencumbered Cash Equivalents and short-term marketable
securities (that are classified as current assets in accordance
with GAAP) of Borrower and its Subsidiaries at such time. (In
calculating Cash Balances, Cash Equivalents and short-term
marketable securities shall be marked to market quarterly.)
"Economically Defeased Portion of Synthetic Lease
Obligations" shall mean the remainder of (a) the sum of the
"Tranche A" portions, "Tranche B" portions and "Tranche C"
portions of leases constituting Economically Defeased Synthetic
Lease Obligations, minus (b) the aggregate amount of the
"Tranche A" portions of such leases that the lessee has sold,
assigned or otherwise transferred to any other Person.
"Economically Defeased Synthetic Lease Obligations"
shall mean Synthetic Lease Obligations under synthetic leases in
which the lessee has secured the "Tranche B" portion of such
leases and the "Tranche C" portion of such leases with cash
and/or Cash Equivalents and initially has purchased a 100%
participation interest in the "Tranche A" portion of such
leases.
"Synthetic Lease Obligations" shall mean the monetary
obligations of a Person under (a) a so-called synthetic,
off-balance sheet or tax retention lease, or (b) an agreement
for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which,
upon the insolvency or bankruptcy of such Person, would be
characterized as the indebtedness of such Person (without regard
to accounting treatment).
(c) Subparagraph 4.01(g) is amended to read in its entirety as
follows:
(g) Litigation. Except as set forth in the most recent
Form 10-Q and 10-K reports filed by Borrower with the Securities
and Exchange Commission, no
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actions (including, without limitation, derivative actions),
suits, proceedings or investigations are pending or, to the
knowledge of Borrower, threatened against Borrower or any of its
Subsidiaries at law or in equity in any court or before any
other Governmental Authority which (i) is reasonably likely
(alone or in the aggregate) to have a Material Adverse Effect or
(ii) seeks to enjoin, either directly or indirectly, the
execution, delivery or performance by Borrower of the Operative
Documents or the transactions contemplated thereby.
(d) Subparagraph 4.01(k) is amended to read in its entirety as
follows:
(k) No Agreements to Sell Assets; Etc. Neither Borrower
nor any of its Subsidiaries has any legal obligation, absolute
or contingent, to any Person to sell the assets of Borrower or
any of its Subsidiaries (other than sales in the ordinary course
of business), or to effect any merger, consolidation or other
reorganization of Borrower or any of its Subsidiaries or to
enter into any agreement with respect thereto, except for sales,
mergers, consolidations or reorganizations permitted by
Subparagraph 5.02(c), 5.02(d) or 5.02(e).
(e) Subparagraph 4.01(l) is amended by changing clause (i) to
read in its entirety as follows:
(i) Based on the most recent valuation date for any
Pension Plan, the amount of unfunded benefit liabilities (as
defined in Section 4001(a)(18) of ERISA), individually or in the
aggregate for all Pension Plans (excluding for purposes of such
computation any Pension Plans with respect to which assets
exceed benefit liabilities) does not exceed an amount equal to
$10,000,000. No Pension Plan has failed to meet the minimum
funding standard of Code Section 412 (whether or not waived
under Code Section 412(d)) or failed to make by its due date a
required installment under Code Section 412(m). Neither Borrower
nor any ERISA Affiliate has any liability with respect to any
post-retirement benefit under any Employee Benefit Plan which is
a welfare plan (as defined in section 3(1) of ERISA) that is
reasonably likely to have a Material Adverse Effect.
(f) Subparagraph 4.01(n) is amended to read in its entirety as
follows:
(n) Patent and Other Rights. Borrower and its
Subsidiaries own, license or otherwise have the right to use,
under validly existing agreements, all patents, licenses,
trademarks, trade names, trade secrets, service marks,
copyrights and all rights with respect thereto, which are
required to conduct their businesses as now conducted, except
where the failure to have any such rights, either individually
or collectively, is not reasonably likely to have a Material
Adverse Effect.
(g) Subparagraph 4.01(q) is amended to read in its entirety as
follows:
(q) Subsidiaries, etc. Set forth in Schedule 4.01(q) (as
supplemented by Borrower from time to time in a written notice
to Agent) is a complete list of all of Borrower's Subsidiaries,
the jurisdiction of incorporation of each, the
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classes of Equity Securities of each and the percentages of
shares of each such class owned directly or indirectly by
Borrower.
(h) Subparagraph 5.01(a) is amended by (i) changing clauses
(iii), (iv) and (v) to read in their entireties as follows:
(iii) Contemporaneously with the quarterly and year-end
Financial Statements required by the foregoing clauses (i) and
(ii), a compliance certificate of the president or chief
financial officer of Borrower which (A) states that no Default
has occurred and is continuing, or, if any such Default has
occurred and is continuing, a statement as to the nature thereof
and what action Borrower proposes to take with respect thereto;
and (B) sets forth, for the quarter or year covered by such
Financial Statements or as of the last day of such quarter or
year (as the case may be), the calculation of the financial
ratios and tests provided in Paragraph 5.03;
(iv) As soon as available and in no event later than
fifty (50) days after the last day of each fiscal quarter of
Borrower, a certificate of the chief financial officer of
Borrower which sets forth the calculation of the Funded
Indebtedness/EBITDA Ratio for the consecutive four-quarter
period ending on such day;
(v) As soon as possible and in no event later than five
(5) Business Days after any Senior Officer of Borrower knows of
the occurrence or existence of (A) any Reportable Event
(excluding any Reportable Event for which the provision of a
30-day notice to the PBGC has been waived by regulation) under
any Employee Benefit Plan or Multiemployer Plan; (B) any actual
or threatened litigation, suits, claims or disputes against
Borrower or any of its Subsidiaries involving potential monetary
damages payable by Borrower or its Subsidiaries of $10,000,000
or more (alone or in the aggregate); (C) any other event or
condition which is reasonably likely to have a Material Adverse
Effect; or (D) any Default; the statement of the president or
chief financial officer of Borrower setting forth details of
such event, condition or Default and the action which Borrower
proposes to take with respect thereto;
(ii) deleting clause (vii) and (iii) changing the designations of
clauses (viii), (ix) and (x) to "(vii)", "(viii)" and "(ix)",
respectively.
(i) Subparagraph 5.01(e) is amended to read in its entirety as
follows:
(e) Governmental Charges and Other Indebtedness.
Borrower and its Subsidiaries shall promptly pay and discharge
when due (i) all taxes and other Governmental Charges prior to
the date upon which penalties accrue thereon, (ii) all
indebtedness which, if unpaid, could become a Lien upon the
property of Borrower or its Subsidiaries and (iii) subject to
any subordination provisions applicable thereto, all other
indebtedness; except where (A) the failure to pay any such
taxes, other Governmental Charges or indebtedness, either alone
or collectively, is not reasonably likely to have a Material
Adverse Effect and (B) any such taxes, other Governmental
Charges or indebtedness as may in good faith
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be contested or disputed, or for which arrangements for deferred
payment have been made, provided that in each such case
appropriate reserves as required by GAAP are maintained.
(j) Subparagraph 5.02(a) is amended by changing clauses (ii) and
(iii) to read in their entireties as follows:
(ii) Synthetic Lease Obligations, provided that the
aggregate principal amount thereof (including the Outstanding
Lease Amounts hereunder) outstanding at any time does not exceed
$595,000,000;
(iii) Indebtedness of Borrower and its Subsidiaries
listed in Schedule 5.02(a) and existing on April 13, 2001
(including committed but undrawn amounts);
(k) Subparagraph 5.02(b) is amended by changing clauses (ii) and
(x) to read in their entireties as follows:
(ii) Liens securing the Synthetic Lease Obligations;
(x) Judgement Liens, provided that such Liens do not
have a value in excess of $10,000,000 or such Liens are
released, stayed, vacated or otherwise dismissed within twenty
(20) days after issue or levy and, if so stayed, such stay is
not thereafter removed;
(l) Subparagraph 5.02(c) is amended by changing clause (vi) to
read in its entirety as follows:
(vi) Sales or other dispositions of assets and property
by Borrower to any of Borrower's Subsidiaries or by any of
Borrower's Subsidiaries to Borrower or any of its other
Subsidiaries, provided the terms of any such sales or other
dispositions by or to Borrower (other than sales or other
dispositions by Borrower to any of Borrower's wholly owned
Subsidiaries or by any of Borrower's wholly owned subsidiaries
to Borrower, except for sales or dispositions by Borrower which,
either singly or in the aggregate with respect to all such sales
or dispositions, would involve all or substantially all of the
assets or property of Borrower or which would render Borrower
incapable of performing its obligations under the Credit
Documents) are on terms which are no less favorable to Borrower
than would prevail in the market for similar transactions
between unaffiliated parties dealing at arms length;
(m) Subparagraph 5.02(d) is amended by changing clause (iii)(C)
thereof to read in its entirety as follows:
(C) The aggregate cost of any such merger,
consolidation, establishment or acquisition does not exceed the
amounts permitted under clause (v) of Subparagraph 5.02(e)
(except for Borrower's cost of acquiring Gasonics International
Corporation, which shall not be subject to such limitation).
(n) Subparagraph 5.02(e) is amended to read in its entirety as
follows:
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(e) Investments. Neither Borrower nor any of its
Subsidiaries shall make any Investment except for Investments in
the following:
(i) Investments permitted by the investment
policy of Borrower duly approved by the Board of
Directors of Borrower and in effect at the time of such
Investment;
(ii) Investments held by Gasonics International
Corporation on the date Gasonics International
Corporation is acquired by Borrower;
(iii) Any transaction permitted by Subparagraph
5.02(a);
(iv) Investments by Borrower in the "Tranche A"
portion of synthetic leases in which it is the lessee
and which constitute Economically Defeased Synthetic
Lease Obligations;
(v) Investments in joint ventures and strategic
alliances, provided that the aggregate amount of such
Investments does not exceed in any fiscal year two and
one-half percent (2 1/2%) of the tangible assets of
Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP, on the last
day of the immediately preceding fiscal year; and
(vi) Other Investments, provided that the
aggregate amount of such other Investments plus the
aggregate cost of all mergers and consolidations
consummated, Subsidiaries established and Subsidiaries
and assets acquired by Borrower pursuant to Subparagraph
5.02(d) (excluding Borrower's acquisition of Gasonics
International Corporation) does not exceed in any fiscal
year (A) $100,000,000 for any amounts paid in cash and
(B) $500,000,000 for any amounts paid with shares of
common stock of Borrower (as determined according to the
stock price of such shares on the date of transfer) and
accounted for on a pooling basis in accordance with
GAAP.
(o) Paragraph 5.02 is further amended by (i) deleting
Subparagraph 5.02(i) and (ii) changing the designation of Subparagraph
5.02(j) to "(i)".
(p) Paragraph 5.03 is amended to read in its entirety as
follows:
5.03. Borrower's Financial Covenants. Until the
termination of this Agreement and the satisfaction in full by
Borrower of all Obligations, Borrower will comply, and will
cause compliance, with the following financial covenants, unless
Required Lenders shall otherwise consent in writing:
(a) Funded Indebtedness/Capital Ratio. Borrower
shall not permit its Funded Indebtedness/Capital Ratio
on any day set forth below to be greater than the ratio
set forth opposite such day below:
The last day of any
fiscal quarter 0.40 to 1.00.
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(b) Quick Ratio. Borrower shall not permit its
Quick Ratio on any day set forth below to be less than
the ratio set forth opposite such day below:
The last day of any
fiscal quarter 1.50 to 1.00.
(c) Debt Service Coverage Ratio. Borrower shall
not permit its Debt Service Coverage Ratio for any
fiscal quarter ending on any day set forth below to be
less than the ratio set forth opposite such day below:
The last day of any
fiscal quarter 3.50 to 1.00.
(d) Tangible Net Worth. Commencing on December
31, 2000, Borrower shall not permit its Tangible Net
Worth on the last day of any fiscal quarter (such date
to be referred to herein as a "determination date") to
be less than the sum on such determination date of the
following:
(i) $664,477,000.00 (the approximate
amount of Borrower's Tangible Net Worth on
December 31, 1999);
plus
(ii) Seventy-five percent (75%) of the
sum of (A) Borrower's consolidated annual net
income for its fiscal year ending December 31,
2000 (ignoring any annual loss); plus (B) the
sum of Borrower's consolidated quarterly net
income (ignoring any quarterly losses) for each
fiscal quarter ending after December 31, 2000
through and including the fiscal quarter ending
on the determination date;
plus
(iii) One hundred percent (100%) of the
Net Proceeds of all Equity Securities issued by
Borrower and its Subsidiaries (to Persons other
than Borrower or its Subsidiaries) during the
period commencing on December 31, 1999 and
ending on the determination date;
plus
(iv) One hundred percent (100%) of the
principal amount of all debt securities of
Borrower and its Subsidiaries converted into
Equity Securities of Borrower and its
Subsidiaries during the period commencing on
December 31, 1999 and ending on the
determination date.
provided, however, that in no case shall Borrower permit
its Tangible Net Worth on December 31, 2000 to be less
than $1,260,000,000.00.
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(e) Minimum Cash Balances. Borrower shall not
permit its Cash Balances on any date to be less than the
remainder of:
(i) The aggregate amount on such date of
all Synthetic Lease Obligations of Borrower and
its Subsidiaries that (A) would be attributable
to principal if such obligations were treated as
loan obligations and (B) become due within one
(1) year of such date;
minus
(ii) The sum of (A) all cash of Borrower
and its Subsidiaries on such date and (B) the
market value of Cash Equivalents and short-term
marketable securities (that are classified as
current assets in accordance with GAAP) of
Borrower and its Subsidiaries on such date to
the extent such cash, Cash Equivalents and
short-term marketable securities secure payment
of the current Synthetic Lease Obligations
referred to in clause (i) above.
(In calculating the market value of Cash Equivalents and
short-term marketable securities under this
subparagraph, Cash Equivalents and short-term marketable
securities shall be marked to market quarterly.)
(q) Subparagraphs 6.01(e) and 6.01(h) are amended by changing
the amount "$2,500,000" wherever it appears therein to "$10,000,000".
(r) Paragraph 8.01 is amended by changing the notice addresses,
etc. for Borrower and Agent set forth therein to read in their
entireties as follows:
Borrower: Novellus Systems, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Treasurer
Telephone: (000) 000-0000
Fax No: (000) 000-0000
Agent: ABN AMRO Bank N.V.
Agency Services
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxxxx X'Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
with copies to:
ABN AMRO Bank N.V.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
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Attn: Xxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
and
ABN AMRO Bank N.V.
Credit Administration
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
(s) Schedules 4.01(g) and 5.02(e) are deleted.
(t) Schedule 5.02(a) is amended to read in its entirety as set
forth in the counterpart schedule hereto.
(u) Exhibits A and B are hereby amended by changing the notice
address appearing therein to the following:
ABN AMRO Bank N.V.,
as Agent
Agency Services
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxxxx X'Xxxxx
3. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to Agent and the Lenders that the following are true and correct on the
date of this Amendment and that, after giving effect to the amendments set forth
in Paragraph 2 above, the following will be true and correct on the Effective
Date (as defined below):
(a) The representations and warranties of Borrower set forth in
Paragraph 4.01 of the Credit Agreement and in the other Credit Documents
are true and correct in all material respects as if made on such date
(except for representations and warranties expressly made as of a
specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Credit Documents are in full force and effect.
(Without limiting the scope of the term "Credit Documents," Borrower expressly
acknowledges in making the representations and warranties set forth in this
Paragraph 3 that, on and after the date hereof, such term includes this
Amendment.)
4. EFFECTIVE DATE. Borrower shall deliver to Agent a written notice
specifying the effective date for this Amendment ("Effective Date"), which date
shall be a Business Day prior to April 27, 2001. Borrower shall deliver such
notice to Agent at least five (5) Business Days
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prior to the Effective Date. The amendments effected by Paragraph 2 above shall
then become effective on the Effective Date, subject to receipt by , Agent and
Required Lenders, on or prior to such date, of the following, each in form and
substance satisfactory to Agent, Required Lenders and their respective counsel:
(a) This Amendment duly executed by Borrower, Required Lenders
and Agent;
(b) A certificate of the Chief Financial Officer or Treasurer of
Borrower, addressed to Agent and dated the Effective Date, certifying
that:
(1) The representations and warranties set forth in
Paragraph 4.01 of the Credit Agreement and in the other Credit
Documents are true and correct in all material respects as of
such date (except for such representations and warranties made
as of a specified date, which shall be true as of such date);
(2) No Default has occurred and is continuing as of such
date;
(3) All of the Credit Documents are in full force and
effect on such date;
(c) A favorable written opinion of Xxxxxxxx & Xxxxxxxx, LLP,
counsel to Borrower, dated the Effective Date, addressed to Agent for
the benefit of , Agent and the Lenders, covering such legal matters as
Agent may reasonably request and otherwise in form and substance
satisfactory to Agent;
(d) An amendment fee for each Lender that executes this
Amendment on or prior to April 13, 2001 equal to 0.125% of such Lender's
Commitment on the Effective Date;
(e) All fees and expenses payable to the Parties on or prior to
the Effective Date (including all Agent's Fees);
(f) All fees and expenses of Agent's counsel through the
Effective Date, to the extent set forth in statements of such counsels
delivered to Borrower one or more days prior to the Effective Date; and
(g) Such other evidence as , Agent or any Lender may reasonably
request to establish the accuracy and completeness of the
representations and warranties and the compliance with the terms and
conditions contained in this Amendment and the other Credit Documents.
5. EFFECT OF THIS AMENDMENT. On and after the Effective Date, each
reference in the Credit Agreement and the other Credit Documents to the Credit
Agreement shall mean the Credit Agreement as amended hereby. Except as
specifically amended above, (a) the Credit Agreement and the other Credit
Documents shall remain in full force and effect and are hereby ratified and
affirmed and (b) the execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power, or remedy of the Lenders or Agent, nor constitute a waiver of any
provision of the Credit Agreement or any other Credit Document.
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6. MISCELLANEOUS.
(a) Counterparts. This Amendment may be executed in any number
of identical counterparts, any set of which signed by all the parties
hereto shall be deemed to constitute a complete, executed original for
all purposes.
(b) Headings. Headings in this Amendment are for convenience of
reference only and are not part of the substance hereof.
(c) Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of California without
reference to conflicts of law rules.
[Signature pages follow]
13
14
IN WITNESS WHEREOF, Borrower, Agent and Lenders have caused this
Amendment to be executed as of the day and year first above written.
BORROWER: NOVELLUS SYSTEMS, INC.
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
AGENT: ABN AMRO BANK N.V.
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
LENDERS: ABN AMRO BANK N.V.
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
KEYBANK NATIONAL ASSOCIATION
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
THE SUMITOMO BANK, LIMITED
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
S-1
15
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, SAN FRANCISCO AGENCY
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
THE BANK OF NOVA SCOTIA
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
UNION BANK OF CALIFORNIA, N.A.
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
COMERICA BANK-CALIFORNIA
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
FLEET NATIONAL BANK
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
BANQUE NATIONALE DE PARIS
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
S-2
16
CREDIT LYONNAIS LOS ANGELES BRANCH
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
THE FUJI BANK, LIMITED
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
SOCIETE GENERALE
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
CALIFORNIA BANK & TRUST, formerly
known as "The Sumitomo Bank of
California"
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
X-0
00
XXXXX XXXXX BANK, N.A.
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
SANWA BANK CALIFORNIA
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
S-4
18
SCHEDULE 5.02(a)
EXISTING INDEBTEDNESS
FINANCIAL INSTITUTION CURRENCY AMOUNT FACILITY TYPE
--------------------- -------- ------ -------------
Bank of Tokyo Mitsubishi JPY 1,300,000,000 Line of Credit
Bank of Tokyo Mitsubishi JPY 520,000,000 Line of Credit
Sanwa Bank JPY 2,400,000,000 Line of Credit
Sumitomo Bank JPY 500,000,000 Line of Credit
ABN AMRO Bank USD 97,000 Standby L/C
Malayan Banking Berhad RM 30,000 Bank Guarantee Facility
5.02(a)-1
