Exhibit 10.29
EXECUTION VERSION
FIRST AMENDMENT TO CREDIT
AGREEMENT
This FIRST AMENDMENT TO CREDIT
AGREEMENT (this “ Amendment ”), dated as of
September 23, 2009, is entered into by and between NOVELLUS
SYSTEMS, INC., a California corporation (the “
Borrower ”) and BANK OF AMERICA, N.A., (the “
Lender ”).
RECITALS
A. The Borrower and the Lender are
parties to a Credit Agreement dated as of June 17, 2009 (as
amended, restated, extended, supplemented or otherwise modified
from time to time, the “ Credit Agreement ”),
pursuant to which the Lender extended certain credit facilities to
the Borrower.
B. The Borrower has requested that
the Lender agree to certain amendments to the Credit Agreement, and
the Lender has agreed to such request, subject to the terms and
conditions of this Amendment.
NOW, THEREFORE, for valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
1. Defined Terms . Unless
otherwise defined herein, capitalized terms used herein shall have
the meanings, if any, assigned to such terms in the Credit
Agreement. As used herein, “ Amendment Documents
” means this Amendment, the First Amendment to Security
Agreement, the Amended Control Agreement, the Credit Agreement (as
amended by this Amendment) and each certificate and other document
executed and delivered by the Borrower or pursuant to
Section 5 hereof.
2. Interpretation . The rules
of interpretation set forth in Sections 1.02 though
1.07 of the Credit Agreement shall be applicable to this
Amendment and are incorporated herein by this reference.
3. Amendments to Credit
Agreement . Subject to the terms and conditions hereof and with
effect from and after the Effective Date, the Credit Agreement
shall be amended as follows:
(a) Section 1.01 of the
Credit Agreement shall be amended by adding the following
definition, in appropriate alphabetical order:
“ Adjustment Factor
” means, in respect of any Approved Collateral denominated in
a currency other than EUR, 1.15, and, in respect of any Approved
Collateral denominated in EUR, 1.05.
(b) Section 1.01 of the
Credit Agreement shall be amended by amending and restating the
definition “ Approved Collateral ”, to read as
follows:
“ Approved Collateral
” means (i) Cash Collateral, and (ii) other
Collateral of the type(s) shown in Schedule 1.01(a) hereto,
provided such
other Collateral shall be maintained
either in an investment account with Bank of America, or with one
or more Affiliates of Bank of America, or with not more than one
non-Affiliate of Bank of America; provided , in either case
(i) or (ii), (1) no Approved Collateral shall be Foreign
Collateral, other than EURO-denominated money market funds of an
issuer located in Ireland or the United Kingdom, and (2) if
such Approved Collateral is Foreign Collateral, the Borrower shall
deliver to the Lender (A) legal opinions satisfactory to the
Lender under U.S. and the relevant foreign law confirming the
perfection of the Lender’s Lien thereon and the
enforceability of the relevant Collateral Documents and (B) an
opinion satisfactory to the Lender of tax counsel confirming the
absence of withholding taxes imposed by the jurisdiction in which
such Foreign Collateral is located.
(c) Section 1.01 of the
Credit Agreement shall be further amended, by amending and
restating the definition “ Collateral Value ” to
read as follows:
“ Collateral Value
” means, with respect to each type of Approved Collateral,
the amount determined by Lender at any given time as the Euro
Equivalent of the following Approved Collateral, the value of which
shall be determined by Lender as follows:
(a) If the Collateral is a mutual
fund, the Collateral Value shall be determined by the Lender by
multiplying (i) the most recent per share net asset value of
such mutual fund obtained from the Wall Street Journal or
Barron’s, times (ii) the number of shares of such mutual
fund held by the Lender as Collateral. In the event that such net
asset value is not available in the Wall Street Journal or
Barron’s, the Collateral Value shall be the value quoted to
the Lender by a reputable brokerage firm or published source
selected by the Lender.
(b) If the Collateral is corporate
bonds, the Collateral Value shall be determined by the Lender from
the most recent closing price for such bonds obtained from the Wall
Street Journal. If such closing price is not available in the Wall
Street Journal, the Collateral Value shall be the value quoted to
the Lender by a reputable brokerage firm or published source
selected by the Lender.
(c) If the Collateral is government
or agency obligations or bonds, the Collateral Value shall be
determined by the Lender from the most recent closing bid price for
such bonds obtained from the Wall Street Journal. If such closing
bid price is not available in the Wall Street Journal, the
Collateral Value shall be the value quoted to the Lender by a
reputable brokerage firm or published source selected by the
Lender.
(d) If the Collateral is Cash
Collateral, the Collateral Value shall be the stated balance of the
applicable deposit account.
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(e) For all other Collateral, the
Collateral Value shall be determined by the Lender in its sole
discretion.
(d) Section 1.01 of the
Credit Agreement shall be further amended, by adding the following
definition in appropriate alphabetical order:
“ Foreign Collateral
” means, at any time of determination, Collateral as to which
the effect of perfection of a security interest therein is
determined for purposes of Section 9-304 or 9-305 of the
Uniform Commercial Code of New York by reference to laws other than
the Uniform Commercial Code of any State or territory of the
U.S.
(e) Section 1.01 of the
Credit Agreement shall be further amended, by amending and
restating the definition “ Maintenance Borrowing Base
” to read as follows:
“ Maintenance Borrowing
Base ” means, as of any date of determination, the amount
determined by multiplying the applicable Collateral Value by the
Maintenance Borrowing Base Percentage shown for that type of
Approved Collateral in the table on Schedule 1.01(a) , and
dividing the result by the relevant Adjustment Factor. The
Maintenance Borrowing Base shall be calculated separately for each
type of Collateral. Where there is more than one type of Approved
Collateral, the Maintenance Borrowing Base shall be the sum of the
amounts determined by such calculations.
(f) Schedule 1.01(a) of the
Credit Agreement shall be amended and restated to read as set forth
at Annex I hereto.
(g) Schedule 1 to the form of
Borrowing Base Certificate set forth at Exhibit D of the
Credit Agreement shall be amended and restated in the form attached
hereto as Annex II .
4. Representations and
Warranties . The Borrower hereby represents and warrants to the
Lender as follows:
(a) After giving effect to this
Amendment, no Default has occurred and is continuing (or would
result from the amendment to the Credit Agreement contemplated
hereby).
(b) The Amendment Documents
constitute the legal, valid and binding obligations of the
Borrower, enforceable against it in accordance with their
respective terms, without defense, counterclaim or
offset.
(c) The execution, delivery and
performance by the Borrower of the Amendment Documents have been
duly authorized by all necessary corporate and other action and do
not and will not require any registration with, consent or approval
of, or notice to or action by, any Person (including any
Governmental Authority) in order to be effective and
enforceable.
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(d) The Amendment Documents
constitute the legal, valid and binding obligations of the
Borrower, enforceable against it in accordance with their
respective terms, without defense, counterclaim or
offset.
(e) After giving effect to this
Amendment, all representations and warranties of the Borrower
contained in Article V of the Credit Agreement are true
and correct on and as of the Effective Date, except to the extent
that any such representation and warranty specifically relates to
an earlier date, in which case they are true and correct as of such
earlier date.
(f) The Borrower is entering into
this Amendment on the basis of its own investigation and for its
own reasons, without reliance upon the Lender or any other
Person.
(g) There has occurred since
June 27, 2009 no event or circumstance that has resulted or
could reasonably be expected to result in a Material Adverse
Effect.
(h) The Obligations of the Borrower
under the Credit Agreement and each other Loan Document are not
subject to any defense, counterclaim, set-off, right of recoupment,
abatement or other claim.
5. Effective Date
.
(a) This Amendment will become
effective when each of the following conditions precedent has been
satisfied (the “ Effective Date ”):
(i) The Lender shall have received
from the Borrower a duly executed original (or, if elected by the
Lender, an executed facsimile copy) counterpart to this
Amendment.
(ii) The Lender shall have received
from the Borrower a duly executed original (or, if elected by the
Lender, an executed facsimile copy) counterpart to that certain
First Amendment to Security Agreement by the Borrower in favor of
the Lender, dated on or about the date hereof (the “ First
Amendment to Security Agreement ”).
(iii) The Lender shall have received
(A) appropriate Uniform Commercial Code financing statements
or amendments, for filing in all jurisdictions as may be necessary
or, in the opinion of the Lender, desirable to perfect or continue
perfected the security interest created by the Security Agreement,
as amended by the First Amendment to Security Agreement, and
(B) such documents and opinions as may be required by the
definition “Approved Collateral” in relation to any
Foreign Collateral proposed to be included as of the Effective
Date.
(iv) The Lender shall have received
from the Borrower a duly executed original (or, if elected by the
Lender, an executed facsimile copy) counterpart to that certain
Amended and Restated Collateral Account Control Agreement by and
among the Borrower, the Lender and Bank of America, N.A., as
custodian, dated on or about the date hereof (the “
Amended Control Agreement ”).
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(v) The Lender shall have received
from the Borrower a certificate signed by the secretary or
assistant secretary of the Borrower dated the Effective Date, in
form and substance satisfactory to the Lender, certifying evidence
of the authorization of the execution, delivery and performance by
such Persons of the Amendment Documents to which they are
party.
(vi) The Borrower shall have paid to
the Lender all reasonable cos
