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EXHIBIT 10.1.3
SECOND AMENDMENT TO PARTICIPATION AGREEMENT
THIS SECOND AMENDMENT TO PARTICIPATION AGREEMENT (this "Amendment"),
dated as of September 26, 1997, is entered into by and among:
(1) NOVELLUS SYSTEMS, INC., a California corporation ("Lessee");
(2) LEASE PLAN NORTH AMERICA, INC., an Illinois corporation
("Lessor");
(3) Each of the financial institutions listed in Schedule I to
the Participation Agreement referred to in Recital A below
(collectively, the "Participants"); and
(4) ABN AMRO BANK, N.V., acting through its San Francisco
International Branch, as agent for the Participants (in such capacity,
"Agent").
RECITALS
A. Lessee, Lessor, the Participants and Agent are parties to a
Participation Agreement dated as of June 9, 1997, as amended by a letter
agreement dated as of June 20, 1997 and a First Amendment to Participation
Agreement dated as of August 28, 1997 (as so amended, the "Participation
Agreement").
B. Lessee has requested Lessor, the Participants and Agent to amend the
Participation Agreement to increase the 364-Day Commitment and the Total
Commitment and to make certain other changes.
X. Xxxxxx, the Participants and Agent are willing so to amend the
Participation Agreement upon the terms and subject to the conditions set forth
below.
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, Lessee, Lessor, the Participants 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 Schedule 1.01 to the Participation
Agreement, as amended by this Amendment. The rules of
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construction set forth in Schedule 1.02 to the Participation 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 PARTICIPATION AGREEMENT. Subject to the satisfaction of
the conditions set forth in paragraph 4 below, the Participation Agreement is
hereby amended as follows:
(a) Subparagraph 2.01(b) is amended by changing the date
"June 9, 1999" appearing in clause (iv)(A) thereof to "June 7,
1998".
(b) Subparagraph 2.01(c) is amended in its entirety as
ollows:
(c) Advance Limitations. The advances made by Lessor to
purchase property under the Facilities (collectively, the
"Acquisition Advances") and the Improvement/Expense Advances made
by Lessor under Facility 2 (the Acquisition Advances and the
Improvement/Expense Advances to be referred to collectively as
the "Advances") shall be subject to the following limitations:
(i) The aggregate amount of all Acquisition
Advances made by Lessor under Facility 1 on account of all
Facility 1 Property shall not exceed the sum of all
Facility 1 Expiration Date Appraisals for such property;
(ii) The aggregate amount of all Advances made by
Lessor under Facility 2 on account of all Facility 2
Property shall not exceed the sum of all Facility 2
Expiration Date Appraisals for such property;
(iii) The aggregate amount of all Acquisition
Advances made by Lessor under Facility 1 on account of all
Facility 1 Property shall not exceed $25,000,000;
(iv) The aggregate amount of all Advances made by
Lessor under Facility 2 on account of all Facility 2
Property shall not exceed $145,000,000;
(v) The aggregate amount of all Advances made
during the period commencing on the date of this Agreement
and ending on the date 364 days thereafter (the "364-Day
Commitment Termination Date") shall not exceed One Hundred
Sixty-Five Million Dollars ($165,000,000) (the "364-Day
Commitment"); and
(vi) The aggregate amount of all Advances made
during the period commencing on the date of this Agreement
and ending on the Commitment Termination Date (such period
to be referred to as the
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"Commitment Period") shall not exceed One Hundred
Sixty-Five Million Dollars ($165,000,000) (the "Total
Commitment").
Of the Total Commitment, Zero Dollars ($0) (the "Two-Year
Commitment") is available after the 364-Day Commitment
Termination Date. Each Advance under Facility 2 shall consist of
a Tranche A Portion and a Tranche B Portion.
(c) Subparagraph 2.11(a) is amended by changing clause (ii)
thereof to read in its entirety as follows:
(ii) In addition to the Property Collateral for each
Facility, the Lessee Obligations under each Facility may be
secured, at Lessee's election, by a Cash Collateral Agreement in
the form of Exhibit I, duly executed by Lessee (the "Cash
Collateral Agreement") , and Cash Collateral delivered to Agent
or Participants pursuant to the Cash Collateral Agreement. If
Lessee elects to deliver any Cash Collateral pursuant to the Cash
Collateral Agreement to decrease the Applicable Margin for the
LIBOR Rental Rate under a Lease Agreement, Lessee shall deliver
to Agent, five (5) Business Days' prior to the delivery of such
Cash Collateral, notice of such election and an opinion of its
counsel in form and substance reasonably satisfactory to Lessor
regarding the Cash Collateral Agreement and such Cash Collateral
and shall deliver such Cash Collateral only on a Scheduled Rent
Payment Date under the applicable Lease Agreement. Lessee may
withdraw any Cash Collateral held pursuant to the Cash Collateral
Agreement only as provided in the Cash Collateral Agreement.
(d) Subparagraph 4.03(a) is amended by changing the word "state"
appearing in clause (i) thereof to "jurisdiction".
(e) Schedule II is amended to read in its entirety as set forth
in Attachment 1 hereto.
(f) Schedule 1.01 is amended by changing the definitions of
"Applicable Margin" and "Cash Collateral" set forth therein to read in
their entirety as follows:
"Applicable Margin" shall mean, with respect to either Facility:
(a) No Cash Collateral. During any period when Agent does
not have, in accordance with the Cash Collateral Agreement, a
first priority perfected security interest in any Cash Collateral
securing the Lessee Obligations under such Facility:
(i) The per annum margin which is determined
pursuant to the Pricing Grid and added to the LIBO Rate
with respect to the LIBOR Rental Rate under the applicable
Lease Agreement; or
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(ii) Zero percent (0%) per annum with respect to
the Alternate Rental Rate under the applicable Lease
Agreement;
(b) Full Cash Collateral. During any period when Agent
has, in accordance with the Cash Collateral Agreement, a first
priority perfected security interest in Cash Collateral that
secures the Lessee Obligations under such Facility and has a
value equal to or greater than the full Outstanding Lease Amount
under such Facility:
(i) Twenty-five hundredths of one percent (0.25%)
per annum with respect to the LIBOR Rental Rate under the
applicable Lease Agreement; or
(ii) Zero percent (0%) per annum with respect to
the Alternate Rental Rate under the applicable Lease
Agreement; or
(c) Partial Cash Collateral. During any period when Agent
has, in accordance with the Cash Collateral Agreement, a first
priority perfected security interest in Cash Collateral that
secures the Lessee Obligations under such Facility but has a
value less than the full Outstanding Lease Amount under such
Facility:
(i) The per annum margin equal to the sum of the
following with respect to the LIBOR Rental Rate under the
applicable Lease Agreement:
(A) The product of (1) the per annum margin
that would apply pursuant to clause (a)(i) above
times (2) a fraction, the numerator of which is the
remainder of the Outstanding Lease Amount under
such Facility minus the value of the Cash
Collateral for such Facility and the denominator of
which is the Outstanding Lease Amount under such
Facility; plus
(B) The product of (1) the per annum margin
that would apply pursuant to clause (b)(i) above
times (2) a fraction, the numerator of which is the
value of the Cash Collateral for such Facility and
the denominator of which is the Outstanding Lease
Amount under such Facility; or
(ii) Zero percent (0%) per annum with respect to
the Alternate Rental Rate under the applicable Lease
Agreement;
provided, however, that each Applicable Margin set forth in
subparagraphs (a), (b) and (c) of this definition shall be
increased by two percent (2.0%) on the date an Event of Default
occurs and shall continue at such increased rate unless and until
such Event of Default is waived in accordance with the Operative
Documents.
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"Cash Collateral" shall mean United States Treasury
Securities and deposit accounts held or maintained by Agent and
Participants to the extent such securities and accounts are held
and maintained in accordance with the Cash Collateral Agreement
and Lessor has a first priority perfected security interest
therein securing the Lessee Obligations under one of the
Facilities.
3. REPRESENTATIONS AND WARRANTIES. Lessee hereby represents and warrants
to Agent and the Participants 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 Lessee set forth in
Paragraph 4.01 of the Participation Agreement and in the other Operative
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 Operative Documents are in full force and effect.
(Without limiting the scope of the term "Operative Documents," Lessee 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. The amendments effected by paragraph 2 above shall
become effective on September 26, 1997 (the "Effective Date"), subject to
receipt by Lessor, Agent and the Participants on or prior to the Effective Date
of the following, each in form and substance satisfactory to Agent, the
Participants and their respective counsel:
(a) This Amendment duly executed by Lessor, Lessee, each
Participant and Agent;
(b) A First Amendment to Cash Collateral Agreement in the form of
Attachment 2 hereto, dated the Effective Date and duly executed by
Lessee, Lessor and Agent;
(c) A favorable written opinion of Xxxxxxxx & Xxxxxxxx, counsel
to Lessee, dated the Effective Date, addressed to Lessor and Agent, for
the benefit of Agent and the Participants, and covering such legal
matters as Agent may reasonably request;
(d) An appropriately completed Assignment Agreement that provides
for (i) the assignment by ABN AMRO as the Assignor Participant to
Assignee Participants acceptable to ABN AMRO of Proportionate Shares
totaling not less than eighty-eight percent (88%) and (ii) an Assignment
Effective
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Date that is the same date as the Effective Date, duly executed by ABN
AMRO, each such Assignee Participant, Lessee, Lessor and Agent;
(e) An appropriately completed "Assignment Agreement" under the
Related Credit Agreement that provides for comparable assignments under
the Related Credit Agreement to the same Assignee Participants, duly
executed by the appropriate parties;
(f) Funding by each such Assignee Participant of its required pro
rata share under both the Participation Agreement and the Related Credit
Agreement on the Effective Date; and
(g) Such other evidence as Lessor, Agent or any Participant 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 Operative
Documents.
5. EFFECT OF THIS AMENDMENT. On and after the Effective Date, each
reference in the Participation Agreement and the other Operative Documents to
the Participation Agreement shall mean the Participation Agreement as amended
hereby. Except as specifically amended above, (a) the Participation Agreement
and the other Operative 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 Lessor, the Participants or Agent, nor
constitute a waiver of any provision of the Participation Agreement or any other
Operative Document.
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.
[The signature page follows.]
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IN WITNESS WHEREOF, Lessee, Lessor, Agent and the Participants have
caused this Amendment to be executed as of the day and year first above written.
LESSEE: NOVELLUS SYSTEMS, INC.
By:_________________________________
Name:____________________________
Title:_____________________________
LESSOR: LEASE PLAN NORTH AMERICA, INC.
By:_________________________________
Name:____________________________
Title:_____________________________
AGENT: ABN AMRO BANK, N.V.
By:_________________________________
Name:____________________________
Title:_____________________________
By:_________________________________
Name:____________________________
Title:_____________________________
PARTICIPANT: ABN AMRO BANK, N.V.
By:_________________________________
Name:____________________________
Title:_____________________________
By:_________________________________
Name:____________________________
Title:_____________________________
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ATTACHMENT 1
SCHEDULE II
PRICING GRID
(For LIBOR Rental Rate under each Facility, when no Cash Collateral for such
Facility)
FUNDED
INDEBTEDNESS/ PRICING APPLICABLE MARGIN
EBITDA PERIOD FOR
RATIO 1/ LEVEL LIBOR RENTAL RATE
------------ ------- -----------------
0.90,
<1.40 2 0.750%
>/=1.40 3 0.950%
1/ For a consecutive two-quarter period, annualized.
EXPLANATION
1. During any period when Agent does not have, in accordance with the Cash
Collateral Agreement, a first priority perfected security interest in
any Cash Collateral for a Facility, the Applicable Margin with respect
to the LIBOR Rental Rate for such Facility will be set for each Pricing
Period and will vary depending upon whether such period is a Level 1
Period, a Level 2 Period, or a Level 3 Period.
2. The first Pricing Period, which commences on the date of this Agreement
and ends on March 31, 1998, will be a Level 2 Period.
3. The second pricing period, which commences on April 1, 1998 and ends on
May 31, 1998, will be a Xxxxx 0 Period, a Level 2 Period, or a Level 3
Period depending upon Lessee's annualized Funded Indebtedness/EBITDA
Ratio for the consecutive two-fiscal quarter period ending on December
31, 1997.
4. Each Pricing Period thereafter will be a Level 1 Period, a Level 2
Period, or a Level 3 Period depending upon Lessee's annualized Funded
Indebtedness/EBITDA Ratio for the most recent consecutive two-fiscal
quarter period ending prior to the first day of such Pricing Period.
5. Examples:
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(a) Lessee's annualized Funded Indebtedness/EBITDA Ratio is 1.75 for
the consecutive two-fiscal quarter period ending on December 31,
1997. The Pricing Period of April 1, 1998 - May 31, 1998 will be
a Level 3 Period.
(b) Lessee's annualized Funded Indebtedness/EBITDA Ratio is 0.75 for
the consecutive two-fiscal quarter period ending on March 31,
1998. The Pricing Period of June 1, 1998 - August 31, 1998 will
be a Level 1 Period.
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ATTACHMENT 2
FIRST AMENDMENT TO CASH COLLATERAL AGREEMENT
THIS FIRST AMENDMENT TO CASH COLLATERAL AGREEMENT (this "Amendment"),
dated as of September 26, 1997, is entered into by and among:
(1) NOVELLUS SYSTEMS, INC., a California corporation ("Lessee");
(2) LEASE PLAN NORTH AMERICA, INC., an Illinois corporation
("Lessor"); AND
(3) ABN AMRO BANK N.V., acting through its San Francisco
International Branch, as agent for the Participants under the
Participation Agreement referred to in Recital A below (in such
capacity, "Agent").
RECITALS
A. Lessee, Lessor, the Participants and Agent are parties to a
Participation Agreement dated as of June 9, 1997, as amended by a letter
agreement dated as of June 20, 1997 and a First Amendment to Participation
Agreement dated as of August 28, 1997 (as so amended, the "Participation
Agreement"). In connection with the Participation Agreement, Lessee, Lessor and
Agent executed, among other agreements, a Cash Collateral Agreement dated as of
June 9, 1997 (the "Cash Collateral Agreement.)
B. Lessee has requested Lessor, the Participants and Agent to amend the
Participation Agreement to increase the 364-Day Commitment and the Total
Commitment and to make certain other changes to the Participation Agreement and
the Cash Collateral Agreement.
C. Pursuant to a Second Amendment to Participation Agreement dated as of
September 26, 1997 (the "Second Amendment to Participation Agreement"), Lessor,
the Participants and Agent have agreed so to amend the Participation Agreement
upon the terms and subject to the conditions set forth in the Second Amendment,
including the execution and delivery by Lessee of this Amendment amending the
Cash Collateral Agreement.
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, Lessor, Lessee, the Participants 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
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capitalized terms used herein shall have the respective meanings given to those
terms in Schedule 1.01 to the Participation Agreement, as amended by this
Amendment. The rules of construction set forth in Schedule 1.02 to the
Participation 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 CASH COLLATERAL AGREEMENT. Subject to the satisfaction
of the conditions set forth in paragraph 4 of the Second Amendment to
Participation Agreement, the Participation Agreement is hereby amended as
follows:
(a) Paragraph 2.01 is amended to read in its entirety as follows:
2.01. Grant of Security Interest. As security for the
Lessee Obligations, Lessee hereby pledges and assigns to Lessor
(for the ratable benefit of the Lessor Parties) and grants to
Lessor (for the ratable benefit of the Lessor Parties) a security
interest in all right, title and interest of Lessee in and to the
following property, whether now owned or hereafter acquired
(collectively and severally, the "Cash Collateral"):
(a) Securities Accounts. All securities accounts
established by Lessee with any Depositary Bank or
maintained by any Depositary Bank for the account or
credit of Lessee (including without limitation all such
accounts described in each Notice of Security Interest in
the form of Exhibit B (a "Notice of Security Interest")
delivered by Lessee and Lessor to a Depositary Bank); all
securities (including United States Treasury Securities)
maintained in or credited to such accounts; all other
financial assets and property maintained in or credited to
such accounts; all documents, instruments and agreements
evidencing the foregoing; all extensions, renewals,
modifications and replacements of the foregoing; all
interest and other amounts payable in connection
therewith; and all security entitlements and other rights
of Lessee with respect to the foregoing (collectively, the
"Securities Accounts");
(b) Deposit Accounts. All deposit accounts
established by Lessee with any Depositary Bank or
maintained by any Depositary Bank for the account or
credit of Lessee (including without limitation all such
accounts described in each Notice of Security Interest
delivered by Lessee and Lessor to a Depositary Bank); all
certificates of deposit issued by any Depositary Bank for
the account or credit of Lessee (including without
limitation all such certificates of deposit described in
each Notice of Security Interest delivered by Lessee and
Lessor to a Depositary Bank); all cash and other property
maintained in or credited to such accounts and
certificates of deposit; all documents, instruments and
agreements evidencing the foregoing; all extensions,
renewals, modifications and replacements of the foregoing;
all interest and other
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amounts payable in connection therewith; and all other
rights of Lessee with respect to the foregoing
(collectively, the "Deposit Accounts");
(c) Proceeds. All proceeds of the foregoing
(including, without limitation, whatever is receivable or
received when Cash Collateral or proceeds is sold,
collected, exchanged, returned, substituted or otherwise
disposed of, whether such disposition is voluntary or
involuntary, including rights to payment and return
premiums and insurance proceeds under insurance with
respect to any Cash Collateral, and all rights to payment
with respect to any cause of action affecting or relating
to the Cash Collateral);
Provided, however, that (i) Securities Accounts and Deposit
Accounts designated in the Notice(s) of Security Interest
therefor as security for Facility 1 and all Cash Collateral
relating to such Securities Accounts and Deposit Accounts shall
secure only the Lessee Obligations under Facility 1 and (ii)
Securities Accounts and Deposit Accounts designated in the
Notice(s) of Security Interest therefor as security for Facility
2 and all Cash Collateral relating to such Securities Accounts
and Deposit Accounts shall secure only the Lessee Obligations
under Facility 2. The parties hereto do not intend for the Cash
Collateral to constitute advance payment of any of the Lessee
Obligations or liquidated damages nor do the parties intend for
the Cash Collateral to increase the Lessee Obligations. Without
limiting the generality of the foregoing, the parties acknowledge
and agree that, upon the exercise by Lessee of the Marketing
Option in accordance with the Purchase Agreements, the Lessee
Obligations thereunder shall be limited as provided therein.
(b) Paragraph 2.03 is amended to read in its entirety as follows:
2.03. Delivery and Maintenance of Cash Collateral. Lessee
shall deliver and maintain Cash Collateral with Depositary Banks
as required by Subparagraph 3.02(l) of the applicable Purchase
Agreement, as a condition to Lessee's exercise of the Marketing
Option following acceleration of the Expiration Date under a
Lease Agreement based upon a Non-Marketing Option Event of
Default thereunder, or at its election pursuant to clause (ii) of
Subparagraph 2.11(a) of the Participation Agreement, subject in
both cases to the following terms and conditions:
(a) Selection of Depositary Banks. Lessee shall
deliver all Cash Collateral to and maintain all Cash
Collateral with Agent as the Depositary Bank, except that,
at the request of any Participant, Lessee shall deliver to
and maintain with such Participant a portion of all Cash
Collateral in a principal amount which does not exceed
such Participant's Proportionate Share of all Cash
Collateral; provided, however, that, if any such
Participant fails to satisfy the requirements of a
Depositary
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Bank under Paragraph 2.02 or otherwise fails to comply
with its obligations hereunder, such Participant's
Proportionate Share of the Cash Collateral shall be
delivered to and maintained with Agent.
(b) Notice to Lessor. Lessee shall deliver to
Lessor, at least five (5) Business Days prior to Lessee's
delivery of any Cash Collateral, a written notice of its
intention to deliver such Cash Collateral, in a form
reasonably acceptable to Lessor, setting forth, among
other things, (i) the total amount of such Cash Collateral
to be delivered, (ii) the Depositary Banks to which such
Cash Collateral is to be delivered and the amount to be
delivered to each, (iii) the proposed date of delivery,
which shall be a Scheduled Rent Payment Date unless such
Cash Collateral is being delivered pursuant to
Subparagraph 3.02(l) of a Purchase Agreement, (iv) the
form in which such Cash Collateral is to be delivered, and
(v) the Facility to be secured by such Cash Collateral.
Each such notice shall be delivered as required by
Subparagraph 2.02(c) and Paragraph 7.01 of the
Participation Agreement; provided, however, that Lessee
shall promptly deliver to Lessor the original of any such
notice initially delivered by facsimile.
(c) Notice of Security Interest. No Depositary Bank
may maintain Cash Collateral unless, at or prior to the
time such Depositary Bank receives Cash Collateral:
(i) Lessee and Lessor have completed,
executed and delivered to such Depositary Bank a
Notice of Security Interest which specifically
identifies each Securities Account and Deposit
Account to be maintained by such Depositary Bank
and the Facility to be secured thereby; and
(ii) Such Depositary Bank has executed the
Acknowledgement and Agreement at the end of such
Notice of Security Interest and returned the same
to Lessor.
(d) Control of Accounts. Lessee may not withdraw
any Cash Collateral from the Depositary Banks holding the
same except as provided in Paragraph 2.04. If no Default
has occurred and is continuing, Lessee may direct each
Depositary Bank maintaining Cash Collateral to hold such
Cash Collateral in the form of United States Treasury
Securities or time deposit accounts of such Depositary
Bank and may elect the term of each such investment;
provided, however, that no term of any United States
Treasury Security or time deposit account may exceed
twelve (12) months. If a Default has occurred and is
continuing, (i) all new Cash Collateral delivered to any
Depositary Bank shall be maintained in time deposit
accounts with terms not exceeding
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one (1) week and (ii) any existing Cash Collateral
shall, at the end of the current terms of all
investments thereof, be maintained in time deposit
accounts with terms not exceeding one (1) week. If
Lessee fails to provide instructions to any Depositary
Bank hereunder for any Cash Collateral, such Cash
Collateral shall, at the end of the current terms of all
investments thereof, be maintained in time deposit
accounts with terms not exceeding one (1) week.
(e) Segregation of Cash Collateral. Each Depositary
Bank shall maintain separate Securities Accounts and
Deposit Accounts for each Facility and otherwise shall
maintain the Cash Collateral securing the Lessee
Obligations under Facility 1 separate and apart from the
Cash Collateral securing the Lessee Obligations under
Facility 2.
(c) Exhibit B is amended to read in its entirety as set forth
in Attachment 1 hereto.
3. EFFECTIVE DATE. The amendments effected by paragraph 2 above shall
become effective on the Effective Date, as defined in the Second Amendment to
the Participation Agreement.
4. EFFECT OF THIS AMENDMENT. On and after the Effective Date, each
reference in the Participation Agreement and the other Operative Documents to
the Cash Collateral Agreement shall mean the Cash Collateral Agreement as
amended hereby. Except as specifically amended above, (a) the Cash Collateral
Agreement and the other Operative 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 Lessor, the Participants
or Agent, nor constitute a waiver of any provision of the Cash Collateral
Agreement or any other Operative Document.
5. 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.
[The signature page follows.]
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IN WITNESS WHEREOF, Lessee, Lessor and Agent have caused this Amendment
to be executed as of the day and year first above written.
LESSEE: NOVELLUS SYSTEMS, INC.
By:___________________________
Name:______________________
Title:_____________________
LESSOR: LEASE PLAN NORTH AMERICA, INC.
By:___________________________
Name:______________________
Title:_____________________
AGENT: ABN AMRO BANK N.V.
By:___________________________
Name:______________________
Title:_____________________
By:___________________________
Name:______________________
Title:_____________________
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ATTACHMENT 1
EXHIBIT B
NOTICE OF SECURITY INTEREST
[Date]
[-----------, ----]
[Name of Depositary Bank]
[Address of Depositary Bank]
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1. Reference is made to:
(a) The Participation Agreement, dated as of June 9, 1997 (the
"Participation Agreement"), among Novellus Systems, Inc. ("Lessee"),
Lease Plan North America, Inc. ("Lessor"), the financial institutions
listed in Schedule I to the Participation Agreement (the "Participants")
and ABN AMRO Bank N.V., as agent for the Participants (in such capacity,
"Agent"); and
(b) The Cash Collateral Agreement dated as of June 9, 1997 (the
"Cash Collateral Agreement") among Lessee, Lessor, Agent and the
financial institutions which have become parties thereto.
Unless otherwise defined herein, all capitalized terms used in this Supplement
have the respective meanings given to those terms in the Participation
Agreement.
2. Lessee has informed Lessor that Lessee has established with the
addressee of this Notice (the "Depositary Bank") the following account(s)
[describe each account separately by type (i.e., securities account, deposit
account, certificate of deposit, etc.), account office and account number] as
security for the Lessee Obligations under the Facility indicated:
Account Account Facility
Type Office Account Number Secured
1. __________ ______________ _____________________ ________
2. __________ ______________ _____________________ ________
3. __________ ______________ _____________________ ________
4. __________ ______________ _____________________ ________
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Lessee has further informed Lessor that Lessee intends to maintain Cash
Collateral in the aggregate principal amount of [$_____________ in such Cash
Collateral Account][$_____________ in Cash Collateral Account 1 above;
$_____________ in Cash Collateral Account 2 above; $_____________ in Cash
Collateral Account 3 above; and $_____________ in Cash Collateral Account 4
above].
3. Lessee and Lessor hereby notify Depositary Bank that, pursuant to the
Cash Collateral Agreement, Lessee has granted to Lessor (for the ratable benefit
of the Lessor Parties) as security for the Lessee Obligations under the Facility
indicated for each account above, a security interest in all Cash Collateral
held or maintained by Depositary Bank, including the securities accounts,
deposit accounts and/or certificates of deposit described in paragraph 2 above.
4. In furtherance of such grant, Lessee and Lessor hereby authorize and
direct Depositary Bank to:
(a) Comply with all notifications communicated to it by Lessor
directing it to transfer or redeem any or all Cash Collateral held or
maintained by it without further consent from Lessee;
(b) Upon receipt of notice from Lessor that an Event of Default
has occurred, to transfer and deliver to Lessor or its nominee, together
with all necessary endorsements, all or such portion of the Cash
Collateral as Lessor shall direct;
(c) Hold all Cash Collateral and other Cash Collateral received
by it for Lessor and as Lessor's bailee and make a notation in its books
and records of Lessor's interest in the Cash Collateral held by such
Depositary Bank; and
(d) Prior to its receipt of any Cash Collateral to be held or
maintained by it, to take, and cause Lessee to take, all steps necessary
to perfect Lessor's security interest in such Cash Collateral, including
any such steps that may be required under any applicable laws of the
jurisdiction in which the office at which such Depositary Bank will hold
or maintain such Cash Collateral is located.
5. Lessee and Lessor agree that (a) the possession by Depositary Bank of
all money, instruments, chattel paper and other property constituting Cash
Collateral shall be deemed to be possession by Lessor or a person designated by
Lessor, for purposes of perfecting the security interest granted to Lessor under
the Cash Collateral Agreement, and (b) notifications to Depositary Bank by other
Persons holding any such property, and acknowledgements, receipts or
confirmations from such Persons delivered to Depositary Bank, shall be deemed
notifications to, or acknowledgements, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Depositary Bank for the
benefit of Lessor for the purposes of perfecting such security interests under
applicable law.
6. Please acknowledge Depositary Bank's receipt of this notice,
acknowledge that Depositary Bank will hold the Cash Collateral for Lessor,
confirm that Depositary Bank will
2(1)-2
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comply with the other authorizations and directions set forth herein and confirm
the representations and warranties set forth in the Cash Collateral Agreement by
executing the attached copy of this letter in the space provided and returning
it to Lessor. The authorizations and directions set forth herein may not be
revoked or modified without the written consent of Lessor.
NOVELLUS SYSTEMS, INC.
By: _____________________________
Name: _______________________
Title: ________________________
LEASE PLAN NORTH AMERICA, INC.
By: _____________________________
Name: _______________________
Title: ________________________
2(1)-3
19
ACKNOWLEDGEMENT AND AGREEMENT
OF DEPOSITARY BANK
Depositary Bank hereby acknowledges receipt of the above notice,
acknowledges that it will hold the Cash Collateral for Lessor, agrees to comply
with the authorizations and directions set forth above and represents to Lessee,
Lessor, the Participants and Agent as follows:
(a) Each of the representations and warranties set forth in the
Supplement to Cash Collateral Agreement previously delivered by
Depositary Bank to Lessee and Lessor are true and correct on the date
hereof.
(b) The information set forth above regarding the Cash Collateral
Account(s) is accurate. Such Cash Collateral Account(s) is (are)
currently open and Depositary Bank has no prior notice of any other
security interest, Lien or interest in such Cash Collateral Account(s).
(c) All steps necessary to perfect the security interest of
Lessor in such Cash Collateral Account(s) (including any such steps that
may be required under any applicable laws of the jurisdiction in which
the office at which Depositary Bank will hold or maintain such Cash
Collateral is located) have been taken.
[--------------------------]
By: ________________________
Name: __________________
Title: ___________________
[Date]
2(1)-4
