EXHIBIT 10.1
EXECUTION COPY
E127,500,000
CREDIT AGREEMENT
among
▇▇▇▇▇▇▇ 34 VERMOGENSVERWALTUNGS GMBH
and
NOVELLUS SYSTEMS BV,
as Borrowers,
NOVELLUS SYSTEMS, INC.,
The Several Lenders from Time to Time Parties Hereto,
and
JPMORGAN CHASE BANK,
as Administrative Agent
Dated as of June 25, 2004
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS......................................... 1
1.1 Defined Terms............................................... 1
1.2 Other Definitional Provisions............................... 11
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS..................... 12
2.1 Revolving Commitments....................................... 12
2.2 Procedure for Revolving Loan Borrowing...................... 12
2.3 Commitment Fees, etc........................................ 13
2.4 Termination or Reduction of Revolving Commitments........... 13
2.5 Optional Prepayments........................................ 13
2.6 Continuation Options........................................ 14
2.7 Limitations on Eurocurrency Tranches........................ 14
2.8 Interest Rates and Payment Dates............................ 14
2.9 Computation of Interest and Fees............................ 14
2.10 Inability to Determine Interest Rate........................ 15
2.11 Pro Rata Treatment and Payments............................. 15
2.12 Requirements of Law......................................... 16
2.13 Taxes....................................................... 17
2.14 Indemnity................................................... 19
2.15 Change of Lending Office.................................... 19
2.16 Replacement of Lenders...................................... 20
SECTION 3. REPRESENTATIONS AND WARRANTIES...................... 20
3.1 Financial Condition......................................... 20
3.2 No Change................................................... 20
3.3 Existence; Compliance with Law.............................. 21
3.4 Power; Authorization; Enforceable Obligations............... 21
3.5 No Legal Bar................................................ 21
3.6 Litigation.................................................. 21
3.7 No Default.................................................. 22
3.8 Ownership of Property; Liens................................ 22
3.9 Intellectual Property....................................... 22
3.10 Taxes....................................................... 22
3.11 Federal Regulations......................................... 22
3.12 ERISA....................................................... 22
3.13 Investment Company Act; Other Regulations................... 23
3.14 Subsidiaries................................................ 23
3.15 Use of Proceeds............................................. 23
3.16 Environmental Matters....................................... 23
3.17 Accuracy of Information, etc................................ 24
3.18 Security Documents.......................................... 24
3.19 Solvency.................................................... 24
SECTION 4. CONDITIONS PRECEDENT................................ 25
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4.1 Conditions to Initial Extension of Credit................... 25
4.2 Conditions to Each Extension of Credit...................... 26
SECTION 5. AFFIRMATIVE COVENANTS............................... 26
5.1 Financial Statements........................................ 26
5.2 Certificates; Other Information............................. 27
5.3 Payment of Obligations...................................... 28
5.4 Maintenance of Existence; Compliance........................ 28
5.5 Maintenance of Property; Insurance.......................... 28
5.6 Inspection of Property; Books and Records; Discussions...... 28
5.7 Notices..................................................... 28
SECTION 6. NEGATIVE COVENANTS.................................. 29
6.1 Financial Condition Covenants............................... 29
6.2 Fundamental Changes......................................... 29
6.3 Lines of Business........................................... 30
SECTION 7. EVENTS OF DEFAULT................................... 30
SECTION 8. THE ADMINISTRATIVE AGENT............................ 32
8.1 Appointment................................................. 32
8.2 Delegation of Duties........................................ 32
8.3 Exculpatory Provisions...................................... 32
8.4 Reliance by Administrative Agent............................ 33
8.5 Notice of Default........................................... 33
8.6 Non-Reliance on Agents and Other Lenders.................... 33
8.7 Indemnification............................................. 34
8.8 Agent in Its Individual Capacity............................ 34
8.9 Successor Administrative Agent.............................. 34
SECTION 9. MISCELLANEOUS....................................... 35
9.1 Amendments and Waivers...................................... 35
9.2 Notices..................................................... 36
9.3 No Waiver; Cumulative Remedies.............................. 37
9.4 Survival of Representations and Warranties.................. 37
9.5 Payment of Expenses and Taxes............................... 37
9.6 Successors and Assigns; Participations and Assignments...... 38
9.7 Adjustments; Set-off........................................ 40
9.8 Counterparts................................................ 41
9.9 Severability................................................ 41
9.10 Integration................................................. 41
9.11 GOVERNING LAW............................................... 42
9.12 Submission To Jurisdiction; Waivers......................... 42
9.13 Acknowledgements............................................ 42
9.14 Releases of Guarantees and Liens............................ 43
9.15 Confidentiality............................................. 43
9.16 WAIVERS OF JURY TRIAL....................................... 43
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SCHEDULES:
1.1A Revolving Commitments
3.14 Subsidiaries
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Closing Certificate
C Form of Assignment and Assumption
D Form of Exemption Certificate
E Form of Securities Account Control Agreement
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CREDIT AGREEMENT (this "Agreement"), dated as of June 25, 2004,
among Novellus Systems, Inc., a California corporation ("Novellus"), ▇▇▇▇▇▇▇ 34
Vermogensverwaltungs GMBH (to be renamed NHL Acquisition Sub GmbH), a German
limited liability company ("GMBH"), Novellus Systems BV, a Dutch private company
with limited liability ("BV"), the several banks and other financial
institutions or entities from time to time parties to this Agreement (the
"Lenders") and JPMorgan Chase Bank, as administrative agent.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms.
As used in this Agreement, the terms listed in this Section 1.1
shall have the respective meanings set forth in this Section 1.1.
"Acquisition": the acquisition by Novellus, through its
Subsidiaries, GMBH and BV, of all of the capital stock of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG.
"Administrative Agent": JPMorgan Chase Bank, together with its
affiliates, as the administrative agent for the Lenders under this Agreement and
the other Loan Documents, together with any of its successors.
"Affiliate": as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (a) vote 10% or more of the securities
having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Aggregate Exposure": with respect to any Lender at any time, an
amount equal to the amount of such Lender's Revolving Commitment then in effect
or, if the Revolving Commitments have been terminated, the amount of such
Lender's Revolving Extensions of Credit then outstanding.
"Aggregate Exposure Percentage": with respect to any Lender at any
time, the ratio (expressed as a percentage) of such Lender's Aggregate Exposure
at such time to the Aggregate Exposure of all Lenders at such time.
"Agreement": as defined in the preamble hereto.
"Applicable Margin": 0.20%:
"Approved Fund": as defined in Section 9.6(b).
"Assignee": as defined in Section 9.6(b).
"Assignment and Assumption": an Assignment and Assumption,
substantially in the form of Exhibit C.
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"Available BV Revolving Commitment": as to any Lender at any time,
an amount equal to the excess, if any, of (a) such Lender's BV Revolving
Commitment then in effect over (b) such Lender's BV Revolving Extensions of
Credit then outstanding.
"Available GMBH Revolving Commitment": as to any Lender at any time,
an amount equal to the excess, if any, of (a) such Lender's GMBH Revolving
Commitment then in effect over (b) such Lender's GMBH Revolving Extensions of
Credit then outstanding.
"Available Revolving Commitment": as to any Lender at any time, an
amount equal to the excess, if any, of (a) such Lender's Revolving Commitment
then in effect over (b) such Lender's Revolving Extensions of Credit then
outstanding.
"Benefitted Lender": as defined in Section 9.7(a).
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrower": each of GMBH and BV (collectively, the "Borrowers").
"Borrowing Date": any Business Day specified by the relevant
Borrower as a date on which such Borrower requests the Lenders to make Revolving
Loans hereunder.
"Business": as defined in Section 3.16(b).
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close; provided that (a) such day is also a day on which banks are open for
general business in London and (b) such day is also a day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer System
(TARGET) (or, if such clearing system ceases to be operative, such other
clearing system (if any) determined by the Administrative Agent to be a suitable
replacement) is open for settlement of payment in Euros.
"BV": as defined in the preamble hereto.
"BV Revolving Commitment": as to any Lender, the obligation of such
Lender to make Revolving Loans to BV in an aggregate principal amount not to
exceed the amount set forth under the heading "BV Revolving Commitment" opposite
such Lender's name on Schedule 1.1A or in the Assignment and Assumption pursuant
to which such Lender became a party hereto, as the same may be changed from time
to time pursuant to the terms hereof. The original amount of the Total BV
Revolving Commitments is E51,000,000.
"BV Revolving Extensions of Credit": as to any Lender at any time,
an amount equal to the aggregate principal amount of all Revolving Loans made to
BV held by such Lender then outstanding.
"BV Revolving Loans": as defined in Section 2.1(a).
"BV Revolving Percentage": as to any Lender at any time, the
percentage which such Lender's BV Revolving Commitment then constitutes of the
Total BV Revolving Commitments or, at any time after the BV Revolving
Commitments shall have expired or terminated, the percentage which the aggregate
principal amount of such Lender's BV Revolving Loans then outstanding
constitutes of the aggregate principal amount of the BV Revolving Loans then
outstanding.
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"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Closing Date": the date on which the conditions precedent set forth
in Section 4.1 shall have been satisfied, which date is June 25, 2004.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all property of Novellus, now owned or hereafter
acquired, upon which a Lien is purported to be created by the Guarantee and
Collateral Agreement.
"Commitment Fee Rate": 0.08% per annum.
"Commonly Controlled Entity": an entity, whether or not
incorporated, that is under common control with Novellus within the meaning of
Section 4001 of ERISA or is part of a group that includes Novellus and that is
treated as a single employer under Section 414 of the Code.
"Conduit Lender": any special purpose corporation organized and
administered by any Lender for the purpose of making Revolving Loans otherwise
required to be made by such Lender and designated by such Lender in a written
instrument; provided, that the designation by any Lender of a Conduit Lender
shall not relieve the designating Lender of any of its obligations to fund a
Revolving Loan under this Agreement if, for any reason, its Conduit Lender fails
to fund any such Revolving Loan, and the designating Lender (and not the Conduit
Lender) shall have the sole right and responsibility to deliver all consents and
waivers required or requested under this Agreement with respect to its Conduit
Lender, and provided, further, that no Conduit Lender shall (a) be entitled to
receive any greater amount pursuant to Section 2.12, 2.13, 2.14 or 9.5 than the
designating Lender would have been entitled to receive in respect of the
extensions of credit made by such Conduit Lender or (b) be deemed to have any
Revolving Commitment.
"Consolidated Current Liabilities": at any date, all amounts that
would, in conformity with GAAP, be set forth opposite the caption "total current
liabilities" (or any like caption) on a consolidated balance sheet of Novellus
and its Subsidiaries at such date.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Default": any of the events specified in Section 7, whether or not
any requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Disposition": with respect to any property, any sale, lease, sale
and leaseback, assignment, conveyance, transfer or other disposition thereof.
The terms "Dispose" and "Disposed of" shall have correlative meanings.
"Dollars" and "$": dollars in lawful currency of the United States.
"Environmental Laws": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
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standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Base Rate": with respect to each day during each
Interest Period pertaining to a Eurocurrency Loan, the rate per annum determined
on the basis of the rate for deposits in Euros for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing on
Page 248 of the Telerate screen as of 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period. In the event that such rate does
not appear on Page 248 of the Telerate screen (or otherwise on such screen), the
"Eurocurrency Base Rate" shall be determined by reference to such other
comparable publicly available service for displaying eurocurrency rates as may
be selected by the Administrative Agent or, in the absence of such availability,
by reference to the rate at which the Administrative Agent is offered Euro
deposits at or about 11:00 A.M., London time, two Business Days prior to the
beginning of such Interest Period in the interbank eurocurrency market where its
eurocurrency and foreign currency and exchange operations are then being
conducted for delivery on the first day of such Interest Period for the number
of days comprised therein.
"Eurocurrency Loans": Revolving Loans the rate of interest
applicable to which is based upon the Eurocurrency Rate.
"Eurocurrency Rate": with respect to each day during each Interest
Period pertaining to a Eurocurrency Loan, a rate per annum determined for such
day in accordance with the following formula (rounded upward to the nearest
1/100th of 1%):
Eurocurrency Base Rate
----------------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurocurrency Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such day
(including basic, supplemental, marginal and emergency reserves) under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"Eurocurrency Tranche": the collective reference to Eurocurrency
Loans the then current Interest Periods with respect to all of which begin on
the same date and end on the same later date (whether or not such Revolving
Loans shall originally have been made on the same day).
"Euros" and "E": the single currency of participating member states
of the European Union.
"Event of Default": any of the events specified in Section 7,
provided that any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"Fee Payment Date": (a) the third Business Day following the last
day of each March, June, September and December and (b) the last day of the
Revolving Commitment Period.
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"Funding Office": the office of the Administrative Agent specified
in Section 9.2 or such other office as may be specified from time to time by the
Administrative Agent as its funding office by written notice to the Borrowers
and the Lenders.
"GAAP": generally accepted accounting principles in the United
States as in effect from time to time, except that for purposes of Section 6.1,
GAAP shall be determined on the basis of such principles in effect on the date
hereof and consistent with those used in the preparation of the most recent
audited financial statements referred to in Section 3.1. In the event that any
"Accounting Change" (as defined below) shall occur and such change results in a
change in the method of calculation of financial covenants, standards or terms
in this Agreement, then Novellus, the Borrowers and the Administrative Agent
agree to enter into negotiations in order to amend such provisions of this
Agreement so as to reflect equitably such Accounting Changes with the desired
result that the criteria for evaluating the financial condition of Novellus
shall be the same after such Accounting Changes as if such Accounting Changes
had not been made. Until such time as such an amendment shall have been executed
and delivered by Novellus, the Borrowers, the Administrative Agent and the
Required Lenders, all financial covenants, standards and terms in this Agreement
shall continue to be calculated or construed as if such Accounting Changes had
not occurred. "Accounting Changes" refers to changes in accounting principles
required by the promulgation of any rule, regulation, pronouncement or opinion
by the Financial Accounting Standards Board of the American Institute of
Certified Public Accountants or, if applicable, the SEC.
"GMBH": as defined in the preamble hereto.
"GMBH Revolving Commitment": as to any Lender, the obligation of
such Lender to make Revolving Loans to GMBH in an aggregate principal amount not
to exceed the amount set forth under the heading "GMBH Revolving Commitment"
opposite such Lender's name on Schedule 1.1A or in the Assignment and Assumption
pursuant to which such Lender became a party hereto, as the same may be changed
from time to time pursuant to the terms hereof. The original amount of the Total
GMBH Revolving Commitments is E76,500,000.
"GMBH Revolving Extensions of Credit": as to any Lender at any time,
an amount equal to the aggregate principal amount of all Revolving Loans made to
GMBH held by such Lender then outstanding.
"GMBH Revolving Loans": as defined in Section 2.1(a).
"GMBH Revolving Percentage": as to any Lender at any time, the
percentage which such Lender's GMBH Revolving Commitment then constitutes of the
Total GMBH Revolving Commitments or, at any time after the GMBH Revolving
Commitments shall have expired or terminated, the percentage which the aggregate
principal amount of such Lender's GMBH Revolving Loans then outstanding
constitutes of the aggregate principal amount of the GMBH Revolving Loans then
outstanding.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).
"Group Members": the collective reference to Novellus and its
Subsidiaries.
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"Guarantee and Collateral Agreement": the Guarantee and Collateral
Agreement to be executed and delivered by Novellus, substantially in the form of
Exhibit A.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation, including a reimbursement, counterindemnity or similar
obligation, of the guaranteeing person that guarantees or in effect guarantees,
or which is given to induce the creation of a separate obligation by another
Person (including any bank under any letter of credit) that guarantees or in
effect guarantees, any Indebtedness, leases, dividends or other obligations (the
"primary obligations") of any other third Person (the "primary obligor") in any
manner, whether directly or indirectly, including any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum amount
for which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary obligation
and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by Novellus in good faith.
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than
current trade payables incurred in the ordinary course of such Person's
business), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created or arising
under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (e) all capital lease obligations of
such Person, (f) all obligations of such Person, contingent or otherwise, as an
account party or applicant under or in respect of acceptances, letters of
credit, surety bonds or similar arrangements, (g) the liquidation value of all
redeemable preferred Capital Stock of such Person, (h) all Guarantee Obligations
of such Person in respect of obligations of the kind referred to in clauses (a)
through (g) above, (i) all obligations of the kind referred to in clauses (a)
through (h) above secured by (or for which the holder of such obligation has an
existing right, contingent or otherwise, to be secured by) any Lien on property
(including accounts and contract rights) owned by such Person, whether or not
such Person has assumed or become liable for the payment of such obligation, and
(j) for the purposes of Section 7(e) only, all obligations of such Person in
respect of Swap Agreements (calculated on a ▇▇▇▇-to-market basis). The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness expressly provide that such Person is not liable
therefor.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
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"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including
copyrights, copyright licenses, patents, patent licenses, trademarks, trademark
licenses, technology, know-how and processes, and all rights to ▇▇▇ at law or in
equity for any infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.
"Interest Payment Date": as to any Revolving Loan, (a) having an
Interest Period of three months or less, the last day of such Interest Period,
(b) having an Interest Period longer than three months, each day that is three
months, or a whole multiple thereof, after the first day of such Interest Period
and the last day of such Interest Period and (c) the date of any repayment or
prepayment made in respect thereof.
"Interest Period": (a) initially, the period commencing on the
borrowing or conversion date, as the case may be, with respect to such
Eurocurrency Loan and ending one, two, three or six or (if available to all
Lenders) nine months thereafter, as selected by the relevant Borrower in its
notice of borrowing or notice of conversion, as the case may be, given with
respect thereto; and (b) thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such Eurocurrency Loan and
ending one, two, three or six or (if available to all Lenders) nine months
thereafter, as selected by the relevant Borrower by irrevocable notice to the
Administrative Agent not later than 11:00 A.M., London time, on the date that is
three Business Days prior to the last day of the then current Interest Period
with respect thereto; provided that, all of the foregoing provisions relating to
Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) no Borrower may select an Interest Period that would extend
beyond the Revolving Termination Date;
(iii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(iv) each Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Eurocurrency Loan during an
Interest Period for such Revolving Loan.
"Lenders": as defined in the preamble hereto; provided, that unless
the context otherwise requires, each reference herein to the Lenders shall be
deemed to include any Conduit Lender.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement and any capital lease having substantially the
same economic effect as any of the foregoing).
8
"Loan Documents": this Agreement, the Guarantee and Collateral
Agreement, the Securities Account Control Agreement, the Notes and any
amendment, waiver, supplement or other modification to any of the foregoing.
"Loan Parties": each Group Member that is a party to a Loan
Document.
"Marketable Securities": at any date, all amounts that would, in
conformity with GAAP, be categorized as "Marketable Securities" on a
consolidated balance sheet of Novellus and its Subsidiaries at such date.
"Material Adverse Effect": a material adverse effect on (a) the
business, property, operations or financial condition of Novellus and its
Subsidiaries taken as a whole or (b) the validity or enforceability of this
Agreement or any of the other Loan Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including asbestos, polychlorinated biphenyls
and urea-formaldehyde insulation.
"Multiemployer Plan": a Plan that is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in Section 2.13(a).
"Non-U.S. Lender": as defined in Section 2.13(d).
"Notes": the collective reference to any promissory note evidencing
Revolving Loans.
"Novellus": as defined in the preamble hereto.
"Obligations": the unpaid principal of and interest on (including
interest accruing after the maturity of the Revolving Loans and interest
accruing after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to either or both
Borrowers, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) the Revolving Loans and all other obligations and
liabilities of any Borrower to the Administrative Agent or to any Lender,
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, any other Loan Document or any other document made,
delivered or given in connection herewith or therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including all fees, charges and disbursements of counsel to the
Administrative Agent or to any Lender that are required to be paid by any
Borrower pursuant hereto) or otherwise.
"Other Taxes": any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement or any other Loan Document.
"Participant": as defined in Section 9.6(c).
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"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan that is
covered by ERISA and in respect of which Novellus or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Projections": as defined in Section 5.2(c).
"Properties": as defined in Section 3.16(a).
"Quick Assets": at any date, the sum of (a) unrestricted cash plus
(b) unrestricted Marketable Securities plus (c) unrestricted accounts receivable
of Novellus and its Subsidiaries at such date.
"Quick Ratio": at any date, the ratio of (a) Quick Assets at such
date to (b) Consolidated Current Liabilities at such date less all Revolving
Loans outstanding at such date.
"Register": as defined in Section 9.6(b).
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the thirty day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC
Reg. Section 4043.
"Required Lenders": at any time, the holders of more than 50% of the
Total Revolving Commitments then in effect or, if the Revolving Commitments have
been terminated, the Total Revolving Extensions of Credit then outstanding.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": the chief executive officer, president or
chief financial officer of Novellus, but in any event, with respect to financial
matters, the chief financial officer of Novellus.
"Revolving Commitment": as to any Lender, the collective reference
to its GMBH Revolving Commitment, if any, and its BV Revolving Commitment, if
any. The original amount of the Total Revolving Commitments is E127,500,000.
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"Revolving Commitment Period": the period from and including the
Closing Date to the Revolving Termination Date.
"Revolving Extensions of Credit": as to any Lender at any time, an
amount equal to the aggregate principal amount of all Revolving Loans held by
such Lender then outstanding.
"Revolving Loans": as defined in Section 2.1(a).
"Revolving Termination Date": June 25, 2009.
"SEC": the Securities and Exchange Commission, any successor thereto
and any analogous Governmental Authority.
"Securities Account": as defined in the Securities Account Control
Agreement
"Securities Account Control Agreement": the Securities Account
Control Agreement to be executed and delivered by Novellus, the Securities
Intermediary and the Administrative Agent, substantially in the form of Exhibit
E.
"Securities Intermediary": ▇.▇. ▇▇▇▇▇▇ Securities, Inc., as the
securities intermediary under the Securities Account Control Agreement, together
with any of its successors.
"Single Employer Plan": any Plan that is covered by Title IV of
ERISA, but that is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that, as of
any date of determination, (a) the amount of the "present fair saleable value"
of the assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" means liability on a "claim", and
(ii) "claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such breach gives rise
to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of Novellus.
"Swap Agreement": any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more
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rates, currencies, commodities, equity or debt instruments or securities, or
economic, financial or pricing indices or measures of economic, financial or
pricing risk or value or any similar transaction or any combination of these
transactions; provided that no phantom stock or similar plan providing for
payments only on account of services provided by current or former directors,
officers, employees or consultants of Novellus or any of its Subsidiaries shall
be a "Swap Agreement".
"Total BV Revolving Commitments": at any time, the aggregate amount
of the BV Revolving Commitments then in effect.
"Total GMBH Revolving Commitments": at any time, the aggregate
amount of the GMBH Revolving Commitments then in effect.
"Total Revolving Commitments": at any time, the aggregate amount of
the Revolving Commitments then in effect.
"Total BV Revolving Extensions of Credit": at any time, the
aggregate amount of the BV Revolving Extensions of Credit outstanding at such
time.
"Total GMBH Revolving Extensions of Credit": at any time, the
aggregate amount of the GMBH Revolving Extensions of Credit outstanding at such
time.
"Total Revolving Extensions of Credit": at any time, the aggregate
amount of the Revolving Extensions of Credit outstanding at such time.
"Transferee": any Assignee or Participant.
"United States": the United States of America.
1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings when used in the other Loan Documents
or any certificate or other document made or delivered pursuant hereto or
thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto, (i)
accounting terms relating to any Group Member not defined in Section 1.1 and
accounting terms partly defined in Section 1.1, to the extent not defined, shall
have the respective meanings given to them under GAAP, (ii) the words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation", (iii) the word "incur" shall be construed to mean incur, create,
issue, assume, become liable in respect of or suffer to exist (and the words
"incurred" and "incurrence" shall have correlative meanings), (iv) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, Capital Stock, securities, revenues, accounts, leasehold
interests and contract rights, and (v) references to agreements or other
Contractual Obligations shall, unless otherwise specified, be deemed to refer to
such agreements or Contractual Obligations as amended, supplemented, restated or
otherwise modified from time to time.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import, when used in this Agreement, shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
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(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF REVOLVING COMMITMENTS
2.1 Revolving Commitments.
(a) Subject to the terms and conditions hereof, (i) each Lender
severally agrees to make revolving credit loans ("GMBH Revolving Loans") in
Euros to GMBH from time to time during the Revolving Commitment Period in an
aggregate principal amount at any one time outstanding that does not exceed the
amount of such Lender's GMBH Revolving Commitment and (ii) each Lender severally
agrees to make revolving credit loans ("BV Revolving Loans; collectively with
the GMBH Revolving Loans, "Revolving Loans") in Euros to BV from time to time
during the Revolving Commitment Period in an aggregate principal amount at any
one time outstanding that does not exceed the amount of such Lender's BV
Revolving Commitment. During the Revolving Commitment Period, the Borrowers may
use the Revolving Commitments by borrowing, prepaying the Revolving Loans in
whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof; provided that (x) GMBH may not borrow in excess of
E76,500,000 of Revolving Loans at any one time and (y) BV may not borrow in
excess of E51,000,000 of Revolving Loans at any one time. The Revolving Loans
shall be Eurocurrency Loans.
(b) GMBH shall repay all outstanding Revolving Loans borrowed by it
on the Revolving Termination Date. BV shall repay all outstanding Revolving
Loans borrowed by it on the Revolving Termination Date. For the avoidance of
doubt, it is understood and agreed that (i) the obligations of the Borrowers to
repay outstanding Revolving Loans are several and not joint, (ii) GMBH is not
liable to the Administrative Agent or any Lender for any of the obligations of
BV, Novellus or any other Group Member, nor is GMBH obligated in any manner to
indemnify, repay or otherwise make whole the Administrative Agent or any Lender
for any loss or expense that may be sustained or incurred as a consequence of
any action or inaction of BV, Novellus or any other Group Member, and (iii) BV
is not liable to the Administrative Agent or any Lender for any of the
obligations of GMBH, Novellus or any other Group Member, nor is BV obligated in
any manner to indemnify, repay or otherwise make whole the Administrative Agent
or any Lender for any loss or expense that may be sustained or incurred as a
consequence of any action or inaction of GMBH, Novellus or any other Group
Member.
2.2 Procedure for Revolving Loan Borrowing.
Subject to Section 2.1, the Borrowers may borrow under the Revolving
Commitments during the Revolving Commitment Period on any Business Day, provided
that the relevant Borrower shall give the Administrative Agent irrevocable
notice (which notice must be received by the Administrative Agent prior to 11:00
A.M., London time, three Business Days prior to the requested Borrowing Date),
specifying (i) the amount of Revolving Loans to be borrowed, (ii) the requested
Borrowing Date and (iii) the respective lengths of the initial Interest Period
therefor. Each borrowing under the Revolving Commitments shall be in an amount
equal to E500,000 or a whole multiple of E100,000 in excess thereof. Upon
receipt of any such notice, the Administrative Agent shall promptly notify each
Lender thereof. Each Lender will make the amount of its pro rata share of each
borrowing available to the Administrative Agent for the account of the relevant
Borrower at the Funding Office prior to 12:00 Noon, London time, on the
Borrowing Date requested by the relevant Borrower in funds immediately available
to the Administrative Agent. Such borrowing will then be made available to the
relevant Borrower by the Administrative Agent crediting the account of such
Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.
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2.3 Commitment Fees, etc.
(a) GMBH agrees to pay to the Administrative Agent for the account
of each relevant Lender a commitment fee for the period from and including the
date hereof to the last day of the Revolving Commitment Period, computed at the
Commitment Fee Rate on the average daily amount of the Available GMBH Revolving
Commitment of such Lender during the period for which payment is made, payable
quarterly in arrears on each Fee Payment Date, commencing on the first such date
to occur after the date hereof. BV agrees to pay to the Administrative Agent for
the account of each relevant Lender a commitment fee for the period from and
including the date hereof to the last day of the Revolving Commitment Period,
computed at the Commitment Fee Rate on the average daily amount of the Available
BV Revolving Commitment of such Lender during the period for which payment is
made, payable quarterly in arrears on each Fee Payment Date, commencing on the
first such date to occur after the date hereof.
(b) Novellus agrees to pay to the Administrative Agent the fees in
the amounts and on the dates as set forth in any fee agreements with the
Administrative Agent and to perform any other obligations contained therein.
2.4 Termination or Reduction of Revolving Commitments.
(a) GMBH shall have the right, upon not less than three Business
Days' notice to the Administrative Agent, to terminate the GMBH Revolving
Commitments or, from time to time, to reduce the amount of the GMBH Revolving
Commitments; provided that no such termination or reduction of GMBH Revolving
Commitments shall be permitted if, after giving effect thereto and to any
prepayments by GMBH of the Revolving Loans made on the effective date thereof,
the Total GMBH Revolving Extensions of Credit would exceed the Total GMBH
Revolving Commitments. Any such reduction shall be in an amount equal to
E500,000, or a whole multiple thereof, and shall reduce permanently the GMBH
Revolving Commitments then in effect.
(b) BV shall have the right, upon not less than three Business Days'
notice to the Administrative Agent, to terminate the BV Revolving Commitments
or, from time to time, to reduce the amount of the BV Revolving Commitments;
provided that no such termination or reduction of BV Revolving Commitments shall
be permitted if, after giving effect thereto and to any prepayments by BV of the
Revolving Loans made on the effective date thereof, the Total BV Revolving
Extensions of Credit would exceed the Total BV Revolving Commitments. Any such
reduction shall be in an amount equal to E1,000,000, or a whole multiple
thereof, and shall reduce permanently the BV Revolving Commitments then in
effect.
2.5 Optional Prepayments.
The relevant Borrower may at any time and from time to time prepay
the Revolving Loans made to it, in whole or in part, without premium or penalty,
upon irrevocable notice delivered to the Administrative Agent no later than
11:00 A,M., London time, three Business Days prior thereto, which notice shall
specify the date and amount of prepayment; provided, that if a Revolving Loan is
prepaid on any day other than the last day of the Interest Period applicable
thereto, such Borrower shall also pay any amounts owing pursuant to Section
2.14. Upon receipt of any such notice the Administrative Agent shall promptly
notify each Lender thereof. If any such notice is given, the amount specified in
such notice shall be due and payable on the date specified therein, together
with accrued interest to such date on the amount prepaid. Partial prepayments of
Revolving Loans shall be in an aggregate principal amount of E500,000 or a whole
multiple thereof.
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2.6 Continuation Options.
Any Eurocurrency Loan may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the relevant
Borrower giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to such
Revolving Loans, provided that if (a) any Event of Default has occurred and is
continuing and the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion not to permit Eurocurrency Loans to
be continued as such for Interest Periods of more than one month or (b) the
relevant Borrower shall fail to give any required notice as described above in
this paragraph, such Revolving Loans shall be automatically continued as a
Eurocurrency Loan with an Interest Period of one month. Upon receipt of any such
notice the Administrative Agent shall promptly notify each Lender thereof.
2.7 Limitations on Eurocurrency Tranches.
Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions and continuations of Eurocurrency Loans and all
selections of Interest Periods shall be in such amounts and be made pursuant to
such elections so that, (a) after giving effect thereto, the aggregate principal
amount of the Eurocurrency Loans comprising each Eurocurrency Tranche shall be
equal to E500,000 or a whole multiple of E100,000 in excess thereof and (b) no
more than twenty Eurocurrency Tranches shall be outstanding at any one time.
2.8 Interest Rates and Payment Dates.
(a) Each Revolving Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the
Eurocurrency Rate determined for such day plus the Applicable Margin.
(b) If (i) all or a portion of the principal amount of any Revolving
Loan shall not be paid when due (whether at the stated maturity, by acceleration
or otherwise) or (ii) if all or a portion of any interest payable on any
Revolving Loan or any commitment fee or other amount payable hereunder shall not
be paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate per annum equal to the rate
that would otherwise be applicable thereto pursuant to the foregoing provisions
of this Section plus 2%, in each case, with respect to clauses (i) and (ii)
above, from the date of such non-payment until such amount is paid in full (as
well after as before judgment).
(c) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this Section
shall be payable from time to time on demand.
2.9 Computation of Interest and Fees.
(a) Interest and fees payable pursuant hereto shall be calculated on
the basis of a 360-day year for the actual days elapsed. The Administrative
Agent shall as soon as practicable notify the Borrowers and the Lenders of each
determination of a Eurocurrency Rate. Any change in the interest rate on a
Revolving Loan resulting from a change in the Eurocurrency Reserve Requirements
shall become effective as of the opening of business on the day on which such
change becomes effective. The Administrative Agent shall as soon as practicable
notify the Borrowers and the Lenders of the effective date and the amount of
each such change in interest rate.
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(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrowers and the Lenders in the absence of manifest error.
2.10 Inability to Determine Interest Rate.
If prior to the first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrowers) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurocurrency Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Required Lenders that the Eurocurrency Rate determined or to be determined
for such Interest Period will not adequately and fairly reflect the cost
to such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Revolving Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrowers and the Lenders as soon as practicable thereafter. If such notice is
given, any Revolving Loans comprising such Interest Period shall be maintained
at the rate reasonably determined by the Administrative Agent as the actual cost
of funding such Revolving Loans plus the Applicable Margin until such time as
such notice has been withdrawn by the Administrative Agent.
2.11 Pro Rata Treatment and Payments.
(a) Each borrowing by GMBH from the Lenders hereunder, each payment
by GMBH on account of any commitment fee and any reduction of the GMBH Revolving
Commitments of the Lenders shall be made pro rata according to the GMBH
Revolving Percentages of the relevant Lenders. Each borrowing by BV from the
Lenders hereunder, each payment by BV on account of any commitment fee and any
reduction of the BV Revolving Commitments of the Lenders shall be made pro rata
according to the BV Revolving Percentages of the relevant Lenders.
(b) Each payment (including each prepayment) by GMBH on account of
principal of and interest on the GMBH Revolving Loans made to it shall be made
pro rata according to the respective outstanding principal amounts of the GMBH
Revolving Loans then held by the Lenders. Each payment (including each
prepayment) by BV on account of principal of and interest on the BV Revolving
Loans shall be made pro rata according to the respective outstanding principal
amounts of the BV Revolving Loans then held by the Lenders.
(c) All payments (including prepayments) to be made by a Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 12:00 Noon,
London time, on the due date thereof to the Administrative Agent, for the
account of the Lenders, at the Funding Office, in Euros and in immediately
available funds. The Administrative Agent shall distribute such payments to the
Lenders promptly upon receipt in like funds as received. If any payment on a
Revolving Loan becomes due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day unless
the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Business Day. In the case of any extension of any payment of principal
pursuant to the preceding two sentences, interest thereon shall be payable at
the then applicable rate during such extension.
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(d) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the relevant
Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon, at a rate equal to a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation, for
the period until such Lender makes such amount immediately available to the
Administrative Agent. A certificate of the Administrative Agent submitted to any
Lender with respect to any amounts owing under this paragraph shall be
conclusive in the absence of manifest error. If such Lender's share of such
borrowing is not made available to the Administrative Agent by such Lender
within three Business Days after such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the rate
per annum applicable thereto, on demand, from the relevant Borrower.
(e) Unless the Administrative Agent shall have been notified in
writing by the relevant Borrower prior to the date of any payment due to be made
by such Borrower hereunder that such Borrower will not make such payment to the
Administrative Agent, the Administrative Agent may assume that such Borrower is
making such payment, and the Administrative Agent may, but shall not be required
to, in reliance upon such assumption, make available to the Lenders their
respective pro rata shares of a corresponding amount. If such payment is not
made to the Administrative Agent by the relevant Borrower within three Business
Days after such due date, the Administrative Agent shall be entitled to recover,
on demand, from each Lender to which any amount which was made available
pursuant to the preceding sentence, such amount with interest thereon at the
rate per annum equal to the daily average rate of interest determined by the
Administrative Agent (which determination shall be conclusive absent manifest
error) to be the cost to it of obtaining funds for the relevant Interest Period.
Nothing herein shall be deemed to limit the rights of the Administrative Agent
or any Lender against the Borrowers.
2.12 Requirements of Law.
(a) If the adoption of or any change in any Requirement of Law or in
the interpretation or application thereof or compliance by any Lender with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement or any Eurocurrency Loan made by it, or change
the basis of taxation of payments to such Lender in respect thereof
(except for Non-Excluded Taxes covered by Section 2.13 and changes in the
rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender that is not otherwise included in the determination
of the Eurocurrency Rate; or
(iii) shall impose on such Lender any other condition;
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and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of making, converting into,
continuing or maintaining Eurocurrency Loans, or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the relevant Borrower
shall promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such increased cost or reduced amount
receivable. If any Lender becomes entitled to claim any additional amounts
pursuant to this paragraph, it shall promptly notify the relevant Borrower (with
a copy to the Administrative Agent) of the event by reason of which it has
become so entitled.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, after submission by such Lender to the
relevant Borrower (with a copy to the Administrative Agent) of a written request
therefor, the relevant Borrower shall pay to such Lender such additional amount
or amounts as will compensate such Lender or such corporation for such
reduction.
(c) A certificate as to any additional amounts payable pursuant to
this Section submitted by any Lender to the relevant Borrower (with a copy to
the Administrative Agent) shall be conclusive in the absence of manifest error.
Notwithstanding anything to the contrary in this Section, no Borrower shall be
required to compensate a Lender pursuant to this Section for any amounts
incurred more than nine months prior to the date that such Lender notifies the
relevant Borrower of such Lender's intention to claim compensation therefor;
provided that, if the circumstances giving rise to such claim have a retroactive
effect, then such nine-month period shall be extended to include the period of
such retroactive effect. The obligations of the Borrowers pursuant to this
Section 2.12 shall survive until the date that is one year after the termination
of this Agreement and the payment of the Revolving Loans and all other amounts
payable hereunder.
2.13 Taxes.
(a) All payments made by the Borrowers under this Agreement shall be
made free and clear of, and without deduction or withholding for or on account
of, any present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, excluding net
income taxes and franchise taxes (imposed in lieu of net income taxes) imposed
on the Administrative Agent or any Lender as a result of a present or former
connection between the Administrative Agent or such Lender and the jurisdiction
of the Governmental Authority imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising
solely from the Administrative Agent or such Lender having executed, delivered
or performed its obligations or received a payment under, or enforced, this
Agreement or any other Loan Document). If any such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions or withholdings ("Non-Excluded
Taxes") or Other Taxes are required to be withheld from any amounts payable to
the Administrative Agent or any Lender hereunder, the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent necessary
to yield to the Administrative Agent or such Lender (after payment of all
Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement, provided,
however, that the Borrowers shall not be required to
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increase any such amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender's failure to comply with the
requirements of paragraph (d) or (e) of this Section or (ii) that are United
States withholding taxes imposed on amounts payable to such Lender at the time
such Lender becomes a party to this Agreement, except to the extent that such
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the relevant Borrower with respect to such Non-Excluded
Taxes pursuant to this paragraph.
(b) In addition, the Borrowers shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by a
Borrower, as promptly as possible thereafter such Borrower shall send to the
Administrative Agent for its own account or for the account of the relevant
Lender, as the case may be, a certified copy of an original official receipt
received by such Borrower showing payment thereof. If a Borrower fails to pay
any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or
other required documentary evidence, such Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure.
(d) Each Lender (or Transferee) that is not a "U.S. Person" as
defined in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver
to the Borrowers and the Administrative Agent (or, in the case of a Participant,
to the Lender from which the related participation shall have been purchased)
two copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI,
or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a statement substantially in the form of
Exhibit D and a Form W-8BEN, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrowers under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrowers at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrowers (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this paragraph, a Non-U.S. Lender shall not be required to
deliver any form pursuant to this paragraph that such Non-U.S. Lender is not
legally able to deliver.
(e) A Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which the relevant
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to such Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested by such Borrower, such properly completed and
executed documentation prescribed by applicable law as will permit such payments
to be made without withholding or at a reduced rate, provided that such Lender
is legally entitled to complete, execute and deliver such documentation and in
such Lender's judgment such completion, execution or submission would not
materially prejudice the legal position of such Lender.
(f) If the Administrative Agent or any Lender determines, in its
sole discretion, that it has received a refund or credit of any Non-Excluded
Taxes or Other Taxes as to which it has been indemnified by the Borrowers or
with respect to which a Borrower has paid additional amounts pursuant
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to this Section 2.13, it shall pay over such refund or credit to such Borrower
(but only to the extent of indemnity payments made, or additional amounts paid,
by such Borrower under this Section 2.13 with respect to the Non-Excluded Taxes
or Other Taxes giving rise to such refund or credit), net of all out-of-pocket
expenses of the Administrative Agent or such Lender and without interest (other
than any interest paid by the relevant Governmental Authority with respect to
such refund or credit); provided, that such Borrower, upon the request of the
Administrative Agent or such Lender, agrees to repay the amount paid over to
such Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender in
the event the Administrative Agent or such Lender is required to repay such
refund or credit to such Governmental Authority. This paragraph shall not be
construed to require the Administrative Agent or any Lender to make available
its tax returns (or any other information relating to its taxes which it deems
confidential) to a Borrower or any other Person.
(g) The agreements in this Section 2.13 shall survive until the date
that is one year after the termination of this Agreement and the payment of the
Revolving Loans and all other amounts payable hereunder.
2.14 Indemnity.
Each Borrower agrees to indemnify each Lender for, and to hold each
Lender harmless from, any loss or expense that such Lender may sustain or incur
as a consequence of (a) default by such Borrower in making a borrowing of,
conversion into or continuation of Eurocurrency Loans after such Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by such Borrower in making any prepayment of or
conversion from Eurocurrency Loans after such Borrower has given a notice
thereof in accordance with the provisions of this Agreement or (c) the making of
a prepayment of Eurocurrency Loans on a day that is not the last day of an
Interest Period with respect thereto. Such indemnification may include an amount
equal to the excess, if any, of (i) the amount of interest that would have
accrued on the amount so prepaid, or not so borrowed, converted or continued,
for the period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of such Interest Period (or, in the case of
a failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Revolving Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender after consultation with Novellus) that
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurocurrency
market. A certificate as to any amounts payable pursuant to this Section
submitted to the relevant Borrower by any Lender shall be conclusive in the
absence of manifest error. This covenant shall survive the termination of this
Agreement and the payment of the Revolving Loans and all other amounts payable
hereunder until such time as any applicable statute of limitations has expired.
2.15 Change of Lending Office.
Each Lender agrees that, upon the occurrence of any event giving
rise to the operation of Section 2.12 or 2.13(a) with respect to such Lender, it
will, if requested by the relevant Borrower, use reasonable efforts (subject to
overall policy considerations of such Lender) to designate another lending
office for any Revolving Loans affected by such event with the object of
avoiding the consequences of such event; provided, that such designation is made
on terms that, in the sole judgment of such Lender, cause such Lender and its
lending office(s) to suffer no economic, legal or regulatory disadvantage, and
provided, further, that nothing in this Section shall affect or postpone any of
the obligations of any Borrower or the rights of any Lender pursuant to Section
2.12 or 2.13(a).
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2.16 Replacement of Lenders.
The relevant Borrower shall be permitted to replace any Lender that
(a) requests reimbursement for amounts owing pursuant to Section 2.12 or 2.13(a)
or (b) defaults in its obligation to make Revolving Loans hereunder, with a
replacement financial institution; provided that (i) such replacement does not
conflict with any Requirement of Law, (ii) no Event of Default shall have
occurred and be continuing at the time of such replacement, (iii) prior to any
such replacement, such Lender shall have taken no action under Section 2.15 so
as to eliminate the continued need for payment of amounts owing pursuant to
Section 2.12 or 2.13(a), (iv) the replacement financial institution shall
purchase, at par, all Revolving Loans and other amounts owing to such replaced
Lender on or prior to the date of replacement, (v) the relevant Borrowers shall
be liable to such replaced Lender under Section 2.14 if any Eurocurrency Loan
owing to such replaced Lender shall be purchased other than on the last day of
the Interest Period relating thereto, (vi) the replacement financial
institution, if not already a Lender, shall be reasonably satisfactory to the
Administrative Agent, (vii) the replaced Lender shall be obligated to make such
replacement in accordance with the provisions of Section 9.6 (provided that the
relevant Borrower shall be obligated to pay the registration and processing fee
referred to therein), (viii) until such time as such replacement shall be
consummated, the Borrowers shall pay all additional amounts (if any) required
pursuant to Section 2.12 or 2.13(a), as the case may be, and (ix) any such
replacement shall not be deemed to be a waiver of any rights that the Borrowers,
the Administrative Agent or any other Lender shall have against the replaced
Lender.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Revolving Loans, Novellus and the Borrowers
hereby jointly and severally represent and warrant to the Administrative Agent
and each Lender that:
3.1 Financial Condition.
The audited consolidated balance sheets of Novellus and its
consolidated Subsidiaries as at December 31, 2001, December 31, 2002 and
December 31, 2003, and the related consolidated statements of income and of cash
flows for the fiscal years ended on such dates, reported on by and accompanied
by an unqualified report from Ernst & Young LLP, present fairly the consolidated
financial condition of Novellus and its consolidated Subsidiaries as at such
date, and the consolidated results of its operations and its consolidated cash
flows for the respective fiscal years then ended. The unaudited consolidated
balance sheet of Novellus and its consolidated Subsidiaries as at March 31,
2004, and the related unaudited consolidated statements of income and cash flows
for the three-month period ended on such date, present fairly the consolidated
financial condition of Novellus and its consolidated Subsidiaries as at such
date, and the consolidated results of its operations and its consolidated cash
flows for the three-month period then ended (subject to normal year-end audit
adjustments). All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by the aforementioned firm
of accountants and disclosed therein). No Group Member has any material
Guarantee Obligations, contingent liabilities and liabilities for taxes, or any
long-term leases or unusual forward or long-term commitments, including any
interest rate or foreign currency swap or exchange transaction or other
obligation in respect of derivatives, that are not reflected in the most recent
disclosure filings made by Novellus with the SEC. During the period from
December 31, 2003 to and including the date hereof there has been no Disposition
by any Group Member of any material part of its business or property for which
reasonable consideration has not been received.
3.2 No Change.
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Since December 31, 2003, there has been no development or event that
has had or could reasonably be expected to have a Material Adverse Effect.
3.3 Existence; Compliance with Law.
Each Group Member (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the power and authority, and the legal right, to own and operate its property,
to lease the property it operates as lessee and to conduct the business in which
it is currently engaged, (c) is duly qualified as a foreign corporation or other
organization and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification except to the extent that the failure to so qualify
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect and (d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
3.4 Power; Authorization; Enforceable Obligations.
Each Loan Party has the power and authority, and the legal right, to
make, deliver and perform the Loan Documents to which it is a party and, in the
case of each Borrower, to obtain extensions of credit hereunder. Each Loan Party
has taken all necessary organizational action to authorize the execution,
delivery and performance of the Loan Documents to which it is a party and, in
the case of each Borrower, to authorize the extensions of credit on the terms
and conditions of this Agreement. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the Acquisition and the extensions
of credit hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or any of the Loan Documents, except consents,
authorizations, filings and notices which have been obtained or made and are in
full force and effect. Each Loan Document has been duly executed and delivered
on behalf of each Loan Party party thereto. This Agreement constitutes, and each
other Loan Document upon execution will constitute, a legal, valid and binding
obligation of each Loan Party party thereto, enforceable against each such Loan
Party in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
3.5 No Legal Bar.
The execution, delivery and performance of this Agreement and the
other Loan Documents, the borrowings hereunder and the use of the proceeds
thereof will not violate any Requirement of Law or any Contractual Obligation of
any Group Member and will not result in, or require, the creation or imposition
of any Lien on any of their respective properties or revenues pursuant to any
Requirement of Law or any such Contractual Obligation (other than the Liens
created by the Guarantee and Collateral Agreement). No Requirement of Law or
Contractual Obligation applicable to Novellus or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
3.6 Litigation.
No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of Novellus
or either Borrower, threatened by or against any Group Member or against any of
their respective properties or revenues (a) with respect to any of the Loan
Documents or any of the transactions contemplated hereby or thereby, or (b) that
could reasonably be expected to have a Material Adverse Effect.
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3.7 No Default.
No Group Member is in default under or with respect to any of its
Contractual Obligations in any respect that could reasonably be expected to have
a Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
3.8 Ownership of Property.
Each Group Member has title in fee simple to, or a valid leasehold
interest in, all its real property, and good title to, or a valid leasehold
interest in, all its other property.
3.9 Intellectual Property.
Except as disclosed from time to time in any filing made by Novellus
with the SEC, each Group Member owns, or is licensed to use, all Intellectual
Property necessary for the conduct of its business as currently conducted. No
material claim has been asserted and is pending by any Person challenging or
questioning the use of any Intellectual Property or the validity or
effectiveness of any Intellectual Property, nor does Novellus or either Borrower
know of any valid basis for any such claim.
3.10 Taxes.
Each Group Member has filed or caused to be filed all Federal, state
and other material tax returns that are required to be filed and has paid all
taxes shown to be due and payable on said returns or on any assessments made
against it or any of its property and all other taxes, fees or other charges
imposed on it or any of its property by any Governmental Authority (except to
the extent the amount or validity thereof is currently being contested in good
faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the relevant Group
Member); no tax Lien has been filed, and, to the knowledge of Novellus and each
Borrower, no claim is being asserted, with respect to any such tax, fee or other
charge.
3.11 Federal Regulations.
No part of the proceeds of any Revolving Loans, and no other
extensions of credit hereunder, will be used (a) for "buying" or "carrying" any
"margin stock" within the respective meanings of each of the quoted terms under
Regulation U as now and from time to time hereafter in effect for any purpose
that violates the provisions of the Regulations of the Board or (b) for any
purpose that violates the provisions of the Regulations of the Board. If
requested by any Lender or the Administrative Agent, the Borrowers will furnish
to the Administrative Agent and each Lender a statement to the foregoing effect
in conformity with the requirements of FR Form G-3 or FR Form U-1, as
applicable, referred to in Regulation U.
3.12 ERISA.
Neither a Reportable Event nor an "accumulated funding deficiency"
(within the meaning of Section 412 of the Code or Section 302 of ERISA) has
occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code. No termination of a Single Employer Plan has occurred, and no Lien
in favor of the PBGC or a Plan has arisen, during such five-year period. The
present value of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of
23
the assets of such Plan allocable to such accrued benefits by a material amount.
Neither Novellus nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan that has resulted or could
reasonably be expected to result in a material liability under ERISA, and
neither Novellus nor any Commonly Controlled Entity would become subject to any
material liability under ERISA if Novellus or any such Commonly Controlled
Entity were to withdraw completely from all Multiemployer Plans as of the
valuation date most closely preceding the date on which this representation is
made or deemed made. No such Multiemployer Plan is in Reorganization or
Insolvent.
3.13 Investment Company Act; Other Regulations.
No Loan Party is an "investment company", or a company "controlled"
by an "investment company", within the meaning of the Investment Company Act of
1940, as amended. No Loan Party is subject to regulation under any Requirement
of Law (other than Regulation X of the Board) that limits its ability to incur
Indebtedness.
3.14 Subsidiaries.
As of the Closing Date, Schedule 3.14 sets forth the name and
jurisdiction of incorporation of each Subsidiary.
3.15 Use of Proceeds.
The proceeds of the Revolving Loans shall be used for general
corporate purposes, including to finance a portion of the Acquisition and to pay
related fees and expenses.
3.16 Environmental Matters.
Except as, in the aggregate, could not reasonably be expected to
have a Material Adverse Effect:
(a) the facilities and properties owned, leased or operated by any
Group Member (the "Properties") do not contain, and have not previously
contained, any Materials of Environmental Concern in amounts or concentrations
or under circumstances that constitute or constituted a violation of, or could
give rise to liability under, any Environmental Law;
(b) no Group Member has received or is aware of any notice of
violation, alleged violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental Laws with
regard to any of the Properties or the business operated by any Group Member
(the "Business"), nor does Novellus or either Borrower have knowledge or reason
to believe that any such notice will be received or is being threatened;
(c) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a location
that could give rise to liability under, any Environmental Law, nor have any
Materials of Environmental Concern been generated, treated, stored or disposed
of at, on or under any of the Properties in violation of, or in a manner that
could give rise to liability under, any applicable Environmental Law;
(d) no judicial proceeding or governmental or administrative action
is pending or, to the knowledge of Novellus or either Borrower, threatened,
under any Environmental Law to which any Group Member is or will be named as a
party with respect to the Properties or the Business, nor are there any consent
decrees or other decrees, consent orders, administrative orders or other orders,
or other
24
administrative or judicial requirements outstanding under any Environmental Law
with respect to the Properties or the Business;
(e) there has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations of any Group Member in connection with the Properties or
otherwise in connection with the Business, in violation of or in amounts or in a
manner that could give rise to liability under Environmental Laws;
(f) the Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, with all
applicable Environmental Laws, and there is no contamination at, under or about
the Properties or violation of any Environmental Law with respect to the
Properties or the Business; and
(g) no Group Member has assumed any liability of any other Person
under Environmental Laws.
3.17 Accuracy of Information, etc.
No statement or information contained in this Agreement, any other
Loan Document or any other document, certificate or statement furnished by or on
behalf of any Loan Party to the Administrative Agent or the Lenders, or any of
them, for use in connection with the transactions contemplated by this Agreement
or the other Loan Documents, contained as of the date such statement,
information, document or certificate was so furnished, any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements contained herein or therein not misleading. The projections and pro
forma financial information contained in the materials referenced above are
based upon good faith estimates and assumptions believed by management of
Novellus to be reasonable at the time made, it being recognized by the Lenders
that such financial information as it relates to future events is not to be
viewed as fact and that actual results during the period or periods covered by
such financial information may differ from the projected results set forth
therein by a material amount. There is no fact known to any Loan Party that
could reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein, in the other Loan Documents or in any other
documents, certificates and statements furnished to the Administrative Agent and
the Lenders for use in connection with the transactions contemplated hereby and
by the other Loan Documents.
3.18 Guarantee and Collateral Agreement.
The Guarantee and Collateral Agreement is effective to create in
favor of the Administrative Agent, for the benefit of the Lenders, a legal,
valid and enforceable security interest in the Collateral described therein and
proceeds thereof. When the Collateral is delivered to the Administrative Agent
and held by the Securities Intermediary in the Securities Account, the Guarantee
and Collateral Agreement and the Securities Account Control Agreement shall
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of Novellus in such Collateral and the proceeds thereof, as
security for the Obligations (as defined in the Guarantee and Collateral
Agreement), in each case prior and superior in right to any other Person.
3.19 Solvency.
Each Loan Party is, and after giving effect to the Acquisition and
the incurrence of all Indebtedness and obligations being incurred in connection
herewith and therewith will be and will continue to be, Solvent.
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SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Extension of Credit.
The agreement of each Lender to make the initial Revolving Loan
requested to be made by it is subject to the satisfaction, prior to or
concurrently with the making of such Revolving Loan, of the following conditions
precedent:
(a) Credit Agreement; Guarantee and Collateral Agreement; Securities
Account Control Agreement. The Administrative Agent shall have received
(i) this Agreement, executed and delivered by the Administrative Agent,
Novellus, each Borrower and each Person listed on Schedule 1.1A, (ii) the
Guarantee and Collateral Agreement, executed and delivered by Novellus and
(iii) the Securities Account Control Agreement, executed and delivered by
Novellus, the Securities Intermediary and the Administrative Agent.
(b) Financial Statements. To the extent not otherwise publicly
available, the Lenders shall have received (i) audited consolidated
financial statements of Novellus for the 2001, 2002 and 2003 fiscal years
and (ii) unaudited interim consolidated financial statements of Novellus
for each fiscal quarter ended March 31, 2004, and such financial
statements shall not, in the reasonable judgment of the Lenders, reflect
any material adverse change in the consolidated financial condition of
Novellus, as reflected in the financial statements or projections provided
to the Lenders prior to the Closing Date.
(c) Projections. The Lenders shall have received satisfactory
financial projections through 2009.
(d) Approvals. All material governmental and third party approvals
necessary in connection with the Acquisition, the continuing operations of
the Group Members and the transactions contemplated hereby shall have been
obtained and be in full force and effect, and all applicable waiting
periods shall have expired without any action being taken or threatened by
any competent authority that would restrain, prevent or otherwise impose
adverse conditions on the Acquisition or the financing contemplated
hereby.
(e) Fees. The Lenders and the Administrative Agent shall have
received confirmation of wire transfers with respect to payment of all
fees required to be paid, and all expenses for which invoices have been
presented (including the reasonable fees and expenses of legal counsel),
on or before the Closing Date.
(f) Closing Certificate; Certified Certificate of Incorporation;
Good Standing Certificates. The Administrative Agent shall have received
(i) a certificate of each Loan Party, dated the Closing Date,
substantially in the form of Exhibit B, with appropriate insertions and
attachments, including the certificate of incorporation of each Loan Party
that is a corporation certified by the relevant authority of the
jurisdiction of organization of such Loan Party, and (ii) to the extent
applicable, a long form good standing certificate for each Loan Party from
its jurisdiction of organization.
(g) Legal Opinions. The Administrative Agent shall have received the
following executed legal opinions:
26
(i) the legal opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
counsel to Novellus and its Subsidiaries;
(ii) the legal opinion of Flick ▇▇▇▇▇ Schaumburg, German
counsel to Novellus and its Subsidiaries; and
(iii) the legal opinion of Loyens & Loeff, Dutch counsel
to Novellus and its Subsidiaries.
Each such legal opinion shall cover such matters incident to the
transactions contemplated by this Agreement as the Administrative Agent
may reasonably require.
4.2 Conditions to Each Extension of Credit.
The agreement of each Lender to make any Revolving Loan requested to
be made by it on any date (including its initial Revolving Loan, but excluding,
for avoidance of doubt, any continuation pursuant to Section 2.6) is subject to
the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct on and as of such date as if made on and as of
such date, except to the extent any such representation and warranty
specifically relates to any earlier date, in which case such
representation and warranty shall have been true and correct on and as of
such earlier date.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
Each borrowing by a Borrower hereunder shall constitute a representation and
warranty by Novellus and such Borrower as of the date of such borrowing that the
conditions contained in this Section 4.2 have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
Novellus and the Borrowers hereby jointly and severally agree that,
so long as the Revolving Commitments remain in effect or any Revolving Loan or
other amount is owing to any Lender or the Administrative Agent hereunder, each
of Novellus and each Borrower shall and shall cause each of its Subsidiaries to:
5.1 Financial Statements.
Furnish to the Administrative Agent and each Lender:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of Novellus, a copy of the audited consolidated
balance sheet of Novellus and its consolidated Subsidiaries as at the end
of such year and the related audited consolidated statements of income and
of cash flows for such year, setting forth in each case in comparative
form the figures for the previous year, reported on without a "going
concern" or like qualification or exception, or qualification arising out
of the scope of the audit, by Ernst & Young LLP or other independent
certified public accountants of nationally recognized standing; and
27
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of Novellus, the unaudited consolidated balance sheet of Novellus and
its consolidated Subsidiaries as at the end of such quarter and the
related unaudited consolidated statements of income and of cash flows for
such quarter and the portion of the fiscal year through the end of such
quarter, setting forth in each case in comparative form the figures for
the previous year, certified by a Responsible Officer as being fairly
stated in all material respects (subject to normal year-end audit
adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied (except as approved by such accountants or officer, as the case may be,
and disclosed in reasonable detail therein) consistently throughout the periods
reflected therein and with prior periods. For avoidance of doubt, the delivery
of financial statements pursuant to this Section 5.1 shall not constitute a
"bring-down" of any representation and warranty contained in this Agreement.
5.2 Certificates; Other Information.
Furnish to the Administrative Agent and each Lender (or, in the case
of clause (e), to the relevant Lender):
(a) concurrently with the delivery of the financial statements
referred to in Section 5.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 5.1, a certificate of a Responsible Officer stating
that, to the best of each such Responsible Officer's knowledge, each Loan
Party during such period has observed or performed all of its covenants
and other agreements, and satisfied every condition contained in this
Agreement and the other Loan Documents to which it is a party to be
observed, performed or satisfied by it, and that such Responsible Officer
has obtained no knowledge of any Default or Event of Default except as
specified in such certificate;
(c) as soon as available, and in any event no later than 90 days
after the end of each fiscal year of Novellus, a detailed consolidated
budget for the following fiscal year (including a projected consolidated
balance sheet of Novellus and its Subsidiaries as of the end of the
following fiscal year, the related consolidated statements of projected
cash flow, projected changes in financial position and projected income
and a description of the underlying assumptions applicable thereto), and,
as soon as available, significant revisions, if any, of such budget and
projections with respect to such fiscal year (collectively, the
"Projections"), which Projections shall in each case be accompanied by a
certificate of a Responsible Officer stating that such Projections are
based on reasonable estimates, information and assumptions and that such
Responsible Officer has no reason to believe that such Projections are
incorrect or misleading in any material respect;
(d) within five days after the same are sent, copies of all
financial statements and reports that Novellus or either Borrower sends to
the holders of any class of its debt securities or public equity
securities and, within five days after the same are filed, copies of all
financial statements and reports that Novellus or either Borrower may make
to, or file with, the SEC; and
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(e) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
5.3 Payment of Obligations.
Pay, discharge or otherwise satisfy at or before maturity or before
they become delinquent, as the case may be, all its material obligations of
whatever nature, except where the amount or validity thereof is currently being
contested in good faith by appropriate proceedings and reserves in conformity
with GAAP with respect thereto have been provided on the books of the relevant
Group Member.
5.4 Maintenance of Existence; Compliance.
(a)(i) Preserve, renew and keep in full force and effect its
organizational existence and (ii) take all reasonable action to maintain all
rights, privileges and franchises necessary or desirable in the normal conduct
of its business, except, in the case of clause (ii) above, to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (b) comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
5.5 Maintenance of Property; Insurance.
(a) Keep all property useful and necessary in its business in good
working order and condition, ordinary wear and tear excepted and (b) maintain
with financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks (but including
in any event public liability, product liability and business interruption) as
are usually insured against in the same general area by companies engaged in the
same or a similar business, except to the extent Novellus or its Subsidiaries
maintains reasonable self-insurance with respect to such risks.
5.6 Inspection of Property; Books and Records; Discussions.
(a) Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its business and activities
and (b) upon reasonable prior notice, permit representatives of any Lender to
visit and inspect any of its properties and examine and make abstracts from any
of its books and records at any reasonable time and as often as may reasonably
be desired and to discuss the business, operations, properties and financial and
other condition of the Group Members with officers and employees of the Group
Members and with their independent certified public accountants; provided that
so long as no Event of Default has occurred and is continuing, Novellus and its
Subsidiaries shall only be responsible for the expenses of one such visit and
inspection per calendar year.
5.7 Notices.
Promptly give notice to the Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of any Group Member or (ii) litigation, investigation or
proceeding that may exist at any time between any Group Member and any
Governmental Authority, that in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect;
29
(c) any litigation or proceeding affecting any Group Member (i) in
which the amount involved is $150,000,000 or more and not covered by
insurance, (ii) in which injunctive or similar relief is sought or (iii)
which relates to any Loan Document;
(d) the following events, as soon as possible and in any event
within 30 days after Novellus or a Borrower knows or has reason to know
thereof: (i) the occurrence of any Reportable Event with respect to any
Plan, a failure to make any required contribution to a Plan, the creation
of any Lien in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or
(ii) the institution of proceedings or the taking of any other action by
the PBGC or Novellus or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan; and
(e) any development or event that has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 5.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the relevant Group Member proposes to take with
respect thereto.
SECTION 6. NEGATIVE COVENANTS
Novellus and the Borrowers hereby jointly and severally agree that,
so long as the Revolving Commitments remain in effect or any Revolving Loan or
other amount is owing to any Lender or the Administrative Agent hereunder, each
of Novellus and each Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:
6.1 Quick Ratio.
Permit the Quick Ratio as at the last day of any fiscal quarter of
Novellus to be less than 1.50 to 1.00.
6.2 Fundamental Changes.
(a) In the case of Novellus, enter into any merger, consolidation or
amalgamation, unless Novellus shall be the surviving entity of such
merger, consolidation or amalgamation;
(b) In the case of any Borrower, enter into any merger,
consolidation or amalgamation, unless the surviving entity of such merger,
consolidation or amalgamation shall have duly assumed all of such
Borrower's obligations hereunder and under the other Loan Documents in
form and substance satisfactory to the Administrative Agent (and, if
requested by Administrative Agent, such surviving entity shall have
delivered an opinion of counsel as to the assumption of such obligations);
(c) In the case of each of Novellus and each Borrower, liquidate,
wind up or dissolve itself (or suffer any liquidation or dissolution), or
Dispose of all or substantially all of its property or business, except
that any Borrower may Dispose of any or all of its assets to Novellus or
the other Borrower.
30
6.3 Lines of Business.
Enter into any business, either directly or through any Subsidiary,
except for those businesses in which Novellus and its Subsidiaries are engaged
on the date of this Agreement or that are reasonably related thereto.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) a Borrower shall fail to pay any principal of any Revolving Loan
when due in accordance with the terms hereof; or Novellus or a Borrower
shall fail to pay any interest on any Revolving Loan, or any other amount
payable hereunder or under any other Loan Document, within five days after
any such interest or other amount becomes due in accordance with the terms
hereof; or
(b) any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or that is contained in any
certificate, document or financial or other statement furnished by it at
any time under or in connection with this Agreement or any such other Loan
Document shall prove to have been inaccurate in any material respect on or
as of the date made or deemed made; or
(c) any Loan Party shall default in the observance or performance of
any agreement contained in clause (i) or (ii) of Section 5.4(a) (with
respect to Novellus and the Borrowers only), Section 5.7(a) or Section 6
of this Agreement or Section 3.4 of the Guarantee and Collateral
Agreement; or
(d) any Loan Party shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section),
and such default shall continue unremedied for a period of 30 days after
notice to Novellus from the Administrative Agent or the Required Lenders;
or
(e) any Group Member shall (i) default in making any payment of any
principal of any Indebtedness (including any Guarantee Obligation, but
excluding the Revolving Loans) on the scheduled or original due date with
respect thereto; or (ii) default in making any payment of any interest on
any such Indebtedness beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created; or
(iii) default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or (in the case of
any such Indebtedness constituting a Guarantee Obligation) to become
payable; provided, that a default, event or condition described in clause
(i), (ii) or (iii) of this paragraph(e) shall not at any time constitute
an Event of Default unless, at such time, one or more defaults, events or
conditions of the type described in clauses (i), (ii) and (iii) of this
paragraph (e) shall have occurred and be continuing with respect to
Indebtedness the outstanding principal amount of which exceeds in the
aggregate $125,000,000; or
31
(f) (i) any Group Member shall commence any case, proceeding or
other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with
respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or any Group Member shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against any
Group Member any case, proceeding or other action of a nature referred to
in clause (i) above that (A) results in the entry of an order for relief
or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against any Group Member any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its assets that
results in the entry of an order for any such relief that shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60
days from the entry thereof; or (iv) any Group Member shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) any Group Member shall generally not, or shall be unable to,
or shall admit in writing its inability to, pay its debts as they become
due; or
(g) (i) any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of any
Group Member or any Commonly Controlled Entity, (iii) a Reportable Event
shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA,
(v) any Group Member or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or
condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (vi) above, such event or condition, together with all
other such events or conditions, if any, could, in the sole judgment of
the Required Lenders, reasonably be expected to have a Material Adverse
Effect; or
(h) one or more judgments or decrees shall be entered against any
Group Member involving in the aggregate a liability (not paid or fully
covered by insurance as to which the relevant insurance company has
acknowledged coverage) of $125,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 30 days from the entry thereof; or
(i) the Guarantee and Collateral Agreement or the Securities Account
Control Agreement shall cease, for any reason, to be in full force and
effect, or any Loan Party or any Affiliate of any Loan Party shall so
assert, or any Lien created by the Guarantee and Collateral Agreement
shall cease to be enforceable and of the same effect and priority
purported to be created thereby; or
32
(j) the guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason, to be in full force and
effect or any Loan Party or any Affiliate of any Loan Party shall so
assert; or
(k) the Acquisition shall not be consummated within 30 days of the
Closing Date;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to Novellus or a
Borrower, automatically the Revolving Commitments shall immediately terminate
and the Revolving Loans (with accrued interest thereon) and all other amounts
owing under this Agreement and the other Loan Documents shall immediately become
due and payable, and (B) if such event is any other Event of Default, either or
both of the following actions may be taken: (i) with the consent of the Required
Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the Borrowers declare the
Revolving Commitments to be terminated forthwith, whereupon the Revolving
Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrowers,
declare the Revolving Loans (with accrued interest thereon) and all other
amounts owing under this Agreement and the other Loan Documents to be due and
payable forthwith, whereupon the same shall immediately become due and payable.
Except as expressly provided above in this Section, presentment, demand, protest
and all other notices of any kind are hereby expressly waived by Novellus and
the Borrowers.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment.
Each Lender hereby irrevocably designates and appoints the
Administrative Agent as the agent of such Lender under this Agreement and the
other Loan Documents, and each such Lender irrevocably authorizes the
Administrative Agent, in such capacity, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
8.2 Delegation of Duties.
The Administrative Agent may execute any of its duties under this
Agreement and the other Loan Documents by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
8.3 Exculpatory Provisions.
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Document (except to the extent
that any of the foregoing resulted from its or such Person's own gross
negligence or willful
33
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Loan Party or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of any Loan Party a party thereto to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party.
8.4 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any instrument, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including counsel to
Novellus or either Borrower), independent accountants and other experts selected
by the Administrative Agent. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes unless a written notice
of assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement and the other Loan Documents in accordance with a request
of the Required Lenders (or, if so specified by this Agreement, all Lenders),
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders and all future holders of the Revolving Loans.
8.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default unless the
Administrative Agent has received notice from a Lender, Novellus or a Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
notice thereof to the Lenders. The Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably directed
by the Required Lenders (or, if so specified by this Agreement, all Lenders);
provided that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
8.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or affiliates have made any representations or warranties to it and that no act
by the Administrative Agent hereafter taken, including any review of the affairs
of a Loan Party or any affiliate of a Loan Party, shall be deemed to constitute
any representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative
34
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates and made its own
decision to make its Revolving Loans hereunder and enter into this Agreement.
Each Lender also represents that it will, independently and without reliance
upon the Administrative Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of
a Loan Party that may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
8.7 Indemnification.
The Lenders agree to indemnify the Administrative Agent in its
capacity as such (to the extent not reimbursed by Novellus or a Borrower and
without limiting the obligation of Novellus or the Borrowers to do so), ratably
according to their respective Aggregate Exposure Percentages in effect on the
date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Revolving Commitments
shall have terminated and the Revolving Loans shall have been paid in full,
ratably in accordance with such Aggregate Exposure Percentages immediately prior
to such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever that may at any time (whether before or after the payment
of the Revolving Loans) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of, the Revolving
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements that are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the
Administrative Agent's gross negligence or willful misconduct. The agreements in
this Section shall survive the payment of the Revolving Loans and all other
amounts payable hereunder.
8.8 Administrative Agent in Its Individual Capacity.
The Administrative Agent and its affiliates may make loans to,
accept deposits from and generally engage in any kind of business with any Loan
Party as though the Administrative Agent were not the Administrative Agent. With
respect to its Revolving Loans made or renewed by it, the Administrative Agent
shall have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
8.9 Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent upon 10
days' notice to the Lenders and the Borrowers. If the Administrative Agent shall
resign as Administrative Agent under
35
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 7(a) or Section
7(f) with respect to Novellus or a Borrower shall have occurred and be
continuing) be subject to approval by the Borrowers (which approval shall not be
unreasonably withheld or delayed), whereupon such successor agent shall succeed
to the rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Revolving Loans. If no
successor agent has accepted appointment as Administrative Agent by the date
that is 10 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective, and the Lenders shall assume and perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above. After any
retiring Administrative Agent's resignation as Administrative Agent, the
provisions of this Section 8 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement and the other Loan Documents.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers.
Neither this Agreement, any other Loan Document, nor any terms
hereof or thereof may be amended, supplemented or modified except in accordance
with the provisions of this Section 9.1. The Required Lenders and each Loan
Party party to the relevant Loan Document may, or, with the written consent of
the Required Lenders, the Administrative Agent and each Loan Party party to the
relevant Loan Document may, from time to time, (a) enter into written
amendments, supplements or modifications hereto and to the other Loan Documents
for the purpose of adding any provisions to this Agreement or the other Loan
Documents or changing in any manner the rights of the Lenders or of the Loan
Parties hereunder or thereunder or (b) waive, on such terms and conditions as
the Required Lenders or the Administrative Agent, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the
other Loan Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
modification shall (i) forgive the principal amount or extend the final
scheduled date of maturity of any Revolving Loan, reduce the stated rate of any
interest or fee payable hereunder (except in connection with the waiver of
applicability of any post-default increase in interest rates (which waiver shall
be effective with the consent of the Required Lenders)) or extend the scheduled
date of any payment thereof, or increase the amount or extend the expiration
date of any Lender's Revolving Commitment, in each case without the written
consent of each Lender directly affected thereby; (ii) eliminate or reduce the
voting rights of any Lender under this Section 9.1 without the written consent
of such Lender; (iii) reduce any percentage specified in the definition of
Required Lenders, consent to the assignment or transfer by Novellus or any
Borrower of any of its rights and obligations under this Agreement and the other
Loan Documents, release all or substantially all of the Collateral (other than
pursuant to the terms of the Guarantee and Collateral Agreement) or release
Novellus from its obligations under the Guarantee and Collateral Agreement, in
each case without the written consent of all Lenders; or (iv) amend, modify or
waive any provision of Section 8 without the written consent of the
Administrative Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Loan Parties, the Lenders, the Administrative Agent and all future
holders of the Revolving Loans. In the case of any waiver, the Loan Parties, the
Lenders and the Administrative Agent shall be restored to their former position
and rights hereunder and under the other Loan Documents, and any Default or
Event of Default waived shall be deemed to be cured and not continuing; but no
such
36
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
9.2 Notices.
All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by telecopy), and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or
made when delivered, or three Business Days after being deposited in the mail,
postage prepaid, or, in the case of telecopy notice, when received, addressed as
follows in the case of Novellus, the Borrowers and the Administrative Agent, and
as set forth in an administrative questionnaire delivered to the Administrative
Agent in the case of the Lenders, or to such other address as may be hereafter
notified by the respective parties hereto:
Novellus: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasury
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
GMBH: c/o Novellus
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasury
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
BV: c/o Novellus
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasury
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Administrative Agent: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telecopy: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telephone: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
with copies to:
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
and
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
37
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Section 2 unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or any
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
9.3 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of
the Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder or under the other Loan Documents shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties.
All representations and warranties made hereunder, in the other Loan
Documents and in any document, certificate or statement delivered pursuant
hereto or in connection herewith shall survive the execution and delivery of
this Agreement and the making of the Revolving Loans and other extensions of
credit hereunder.
9.5 Payment of Expenses and Taxes.
Novellus agrees (a) to pay or reimburse the Administrative Agent for
all its out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement and the other Loan Documents and any other
documents prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby, including
the reasonable fees and disbursements of counsel to the Administrative Agent
(which fees and disbursements of counsel shall be limited to $85,000 with
respect to the development, preparation and execution of this Agreement and the
other Loan Documents and any other documents prepared in connection herewith or
therewith) and filing and recording fees and expenses, with statements with
respect to the foregoing to be submitted to Novellus prior to the Closing Date
(in the case of amounts to be paid on the Closing Date) and from time to time
thereafter on a quarterly basis or such other periodic basis as the
Administrative Agent shall deem appropriate, (b) to pay or reimburse each Lender
and the Administrative Agent for all its costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including the
fees and disbursements of counsel (including the allocated fees and expenses of
in-house counsel) to each Lender and of counsel to the Administrative Agent, (c)
to pay, indemnify, and hold each Lender and the Administrative Agent harmless
from, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, that may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents,
38
and (d) to pay, indemnify, and hold each Lender and the Administrative Agent and
their respective officers, directors, employees, affiliates, agents and
controlling persons (each, an "Indemnitee") harmless from and against any and
all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other
documents, including any of the foregoing relating to the use of proceeds of the
Revolving Loans or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of any Group Member or any of the
Properties and the reasonable fees and expenses of legal counsel in connection
with claims, actions or proceedings by any Indemnitee against any Loan Party
under any Loan Document (all the foregoing in this clause (d), collectively, the
"Indemnified Liabilities"), provided, that Novellus shall have no obligation
hereunder to any Indemnitee with respect to Indemnified Liabilities to the
extent such Indemnified Liabilities resulted from the gross negligence or
willful misconduct of such Indemnitee. Without limiting the foregoing, and to
the extent permitted by applicable law, Novellus agrees not to assert and to
cause its Subsidiaries not to assert, and hereby waives and agrees to cause its
Subsidiaries to waive, all rights for contribution or any other rights of
recovery with respect to all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature, under or
related to Environmental Laws, that any of them might have by statute or
otherwise against any Indemnitee. All amounts due under this Section 9.5 shall
be payable not later than 10 days after written demand therefor. Statements
payable by Novellus pursuant to this Section 9.5 shall be submitted to Novellus
at the address, telecopy number and telephone number of Novellus set forth in
Section 9.2, or to such other Person or address as may be hereafter designated
by Novellus in a written notice to the Administrative Agent. The agreements in
this Section 9.5 shall survive repayment of the Revolving Loans and all other
amounts payable hereunder.
9.6 Successors and Assigns; Participations and Assignments.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that (i) each of Novellus and each Borrower may not
assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment or
transfer by Novellus or a Borrower without such consent shall be null and void)
and (ii) no Lender may assign or otherwise transfer its rights or obligations
hereunder except in accordance with this Section.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees (each, an "Assignee") all
or a portion of its rights and obligations under this Agreement (including all
or a portion of its Revolving Commitments and the Revolving Loans at the time
owing to it) with the prior written consent of:
(A) the Loan Parties (such consent not to be unreasonably withheld),
provided that no consent of the Loan Parties shall be required for an
assignment to a Lender, an affiliate of a Lender, an Approved Fund (as
defined below) or, if an Event of Default has occurred and is continuing,
any other Person; and
(B) the Administrative Agent (such consent not to be unreasonably
withheld).
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an affiliate of
a Lender or an Approved Fund or an assignment of the entire remaining
amount of the assigning Lender's Revolving Commitments or Revolving Loans,
the amount of the Revolving Commitments or Revolving Loans of the
assigning Lender subject to each such assignment (determined as of the
39
date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent) shall not be less than E15,000,000
unless each of the Loan Parties and the Administrative Agent otherwise
consent, provided that (1) no such consent of the Loan Parties shall be
required if an Event of Default has occurred and is continuing and (2)
such amounts shall be aggregated in respect of each Lender and its
affiliates or Approved Funds, if any;
(B) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500 (payable by the assigning Lender
or the Assignee); and
(C) the Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an administrative questionnaire.
For the purposes of this Section 9.6, "Approved Fund" means any
Person (other than a natural person) that is engaged in making, purchasing,
holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) below, from and after the effective date specified in each
Assignment and Assumption the Assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Assumption, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.12, 2.13, 2.14 and 9.5). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.6
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section.
(iv) The Administrative Agent, acting for this purpose as an agent
of the Borrowers, shall maintain at one of its offices a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Revolving Commitments of, and principal
amount of the Revolving Loans owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Loan Parties, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an Assignee, the Assignee's completed
administrative questionnaire (unless the Assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Loan Parties or
the Administrative Agent, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its Revolving
40
Commitments and the Revolving Loans owing to it); provided that (A) such
Lender's obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (C) the Loan Parties, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement may provide that such Lender
will not, without the consent of the Participant, agree to any amendment,
modification or waiver that (1) requires the consent of each Lender directly
affected thereby pursuant to the proviso to the second sentence of Section 9.1
and (2) directly affects such Participant. Subject to paragraph (c)(ii) of this
Section, the Loan Parties agree that each Participant shall be entitled to the
benefits of Sections 2.12, 2.13 and 2.14 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.7(b) as though it were a Lender, provided
such Participant shall be subject to Section 9.7(a) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.12 or 2.13 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Loan
Parties' prior written consent. Any Participant that is a Non-U.S. Lender shall
not be entitled to the benefits of Section 2.13 unless such Participant complies
with Section 2.13(d).
(d) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or Assignee for such Lender as a party hereto.
(e) The relevant Borrower, upon receipt of written notice from the
relevant Lender, agrees to issue Notes to any Lender requiring Notes to
facilitate transactions of the type described in paragraph (d) above.
(f) Notwithstanding the foregoing, any Conduit Lender may assign any
or all of the Revolving Loans it may have funded hereunder to its designating
Lender without the consent of the Loan Parties or the Administrative Agent and
without regard to the limitations set forth in Section 9.6(b). Each Loan Party,
each Lender and the Administrative Agent hereby confirms that it will not
institute against a Conduit Lender or join any other Person in instituting
against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceeding under any state bankruptcy or similar law, for one
year and one day after the payment in full of the latest maturing commercial
paper note issued by such Conduit Lender; provided, however, that each Lender
designating any Conduit Lender hereby agrees to indemnify, save and hold
harmless each other party hereto for any loss, cost, damage or expense arising
out of its inability to institute such a proceeding against such Conduit Lender
during such period of forbearance.
9.7 Adjustments; Set-off.
(a) Except to the extent that this Agreement expressly provides for
payments to be allocated to a particular Lender, if any Lender (a "Benefitted
Lender") shall, at any time after the Revolving Loans and other amounts payable
hereunder shall immediately become due and payable pursuant to Section 7,
receive any payment of all or part of the Obligations owing to it, or receive
any
41
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 7(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of the Obligations owing to
such other Lender, such Benefitted Lender shall purchase for cash from the other
Lenders a participating interest in such portion of the Obligations owing to
each such other Lender, or shall provide such other Lenders with the benefits of
any such collateral, as shall be necessary to cause such Benefitted Lender to
share the excess payment or benefits of such collateral ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such Benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to Novellus or
either Borrower, any such notice being expressly waived by Novellus and each
Borrower to the extent permitted by applicable law, upon any amount becoming due
and payable by Novellus or a Borrower hereunder (whether at the stated maturity,
by acceleration or otherwise), to set off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Lender or any branch or
agency thereof to or for the credit or the account of Novellus or a Borrower, as
the case may be; provided that to the extent any Lender exercises any such right
against Novellus, such Lender shall be limited to setting off and appropriating
and applying against such amount any and all deposits (general or special, time
or demand, provisional or final) in the Securities Account, in any currency, and
any other credits, indebtedness or claims with respect to the Securities
Account, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured. Each Lender agrees promptly to notify the
Borrowers and the Administrative Agent after any such setoff and application
made by such Lender, provided that the failure to give such notice shall not
affect the validity of such setoff and application.
9.8 Counterparts.
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
Delivery of an executed signature page of this Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof. A set of the copies of this Agreement signed by all the parties shall be
lodged with Novellus and the Administrative Agent.
9.9 Severability.
Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.10 Integration.
This Agreement and the other Loan Documents represent the entire
agreement of Novellus, the Borrowers, the Administrative Agent and the Lenders
with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
42
9.11 GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
9.12 Submission To Jurisdiction; Waivers.
Each of Novellus and each Borrower hereby irrevocably and
unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts
of the State of New York, the courts of the United States for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to Novellus
or the relevant Borrower, as the case may be, at its address set forth in
Section 9.2 or at such other address of which the Administrative Agent
shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential
damages.
9.13 Acknowledgements.
Each of Novellus and each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to Novellus or either Borrower arising
out of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between Administrative Agent and Lenders,
on one hand, and Novellus and the Borrowers, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor;
and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among Novellus, the Borrowers and the Lenders.
43
9.14 Releases of Guarantees and Liens.
(a) Notwithstanding anything to the contrary contained herein or in
any other Loan Document, the Administrative Agent is hereby irrevocably
authorized by each Lender (without requirement of notice to or consent of any
Lender except as expressly required by Section 9.1) to take any action requested
by Novellus or a Borrower having the effect of releasing any Collateral or
guarantee obligations (i) to the extent (A) required by the terms of the
Guarantee and Collateral Agreement or (B) necessary to permit consummation of
any transaction that has been consented to in accordance with Section 9.1 or
(ii) under the circumstances described in paragraph (b) below.
(b) At such time as the Revolving Loans and the other obligations
under the Loan Documents shall have been paid in full and the Revolving
Commitments have been terminated, the Collateral shall be released from the
Liens created by the Guarantee and Collateral Agreement, and the Guarantee and
Collateral Agreement and all obligations (other than those expressly stated to
survive such termination) of the Administrative Agent and each Loan Party under
the Guarantee and Collateral Agreement shall terminate, all without delivery of
any instrument or performance of any act by any Person.
9.15 Confidentiality.
Each of the Administrative Agent and each Lender agrees to keep confidential all
non-public information provided to it by any Loan Party, the Administrative
Agent or any Lender pursuant to or in connection with this Agreement that is
designated by the provider thereof as confidential; provided that nothing herein
shall prevent the Administrative Agent or any Lender from disclosing any such
information (a) to the Administrative Agent and any other Lender, (b) subject to
an agreement to comply with the provisions of this Section, to any Affiliate of
the Administrative Agent or any Lender, to any actual or prospective Transferee
or to any direct or indirect counterparty to any Swap Agreement (or any
professional advisor to such counterparty), (c) to its employees, directors,
agents, attorneys, accountants and other professional advisors or those of any
of its affiliates, (d) upon the request or demand of any Governmental Authority,
(e) in response to any order of any court or other Governmental Authority or as
may otherwise be required pursuant to any Requirement of Law, (f) if requested
or required to do so in connection with any litigation or similar proceeding,
(g) that has been publicly disclosed, (h) to the National Association of
Insurance Commissioners or any similar organization or any nationally recognized
rating agency that requires access to information about a Lender's investment
portfolio in connection with ratings issued with respect to such Lender, or (i)
in connection with the exercise of any remedy hereunder or under any other Loan
Document.
9.16 WAIVERS OF JURY TRIAL.
NOVELLUS, THE BORROWERS, THE ADMINISTRATIVE AGENT AND THE LENDERS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
9.17 USA Patriot Act.
Each Lender hereby notifies each Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act"), it is required to obtain, verify and record
information that identifies such Borrower, which information includes the name
and address of such Borrower and other information that will allow such Lender
to identify such Borrower in accordance with the Act.
44
9.18 Judgment Currency.
(a) If for the purpose of obtaining judgment in any court it is
necessary to convert a sum due hereunder in one currency into another currency,
the parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the first currency
with such other currency in the city in which it normally conducts its foreign
exchange operation for the first currency on the Business Day preceding the day
on which final judgment is given.
(b) The obligation of each Borrower in respect of any sum due from
it to any Lender hereunder shall, notwithstanding any judgment in a currency
(the "Judgment Currency") other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the "Agreement
Currency"), be discharged only to the extent that on the Business Day following
receipt by such Lender of any sum adjudged to be so due in the Judgment Currency
such Lender may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency; if the amount of Agreement
Currency so purchased is less than the sum originally due to such Lender in the
Agreement Currency, such Borrower agrees notwithstanding any such judgment to
indemnify such Lender against such loss, and if the amount of the Agreement
Currency so purchased exceeds the sum originally due to any Lender, such Lender
agrees to remit to such Borrower such excess.
45
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
NOVELLUS SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President, Treasurer
▇▇▇▇▇▇▇ 34 VERMOGENSVERWALTUNGS
GMBH
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Managing Director
NOVELLUS SYSTEMS BV
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Attorney-in-Fact
JPMORGAN CHASE BANK, as Administrative
Agent and as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President