Date: August 31, 1995
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To: The Mitsubishi Bank, Limited
GUARANTEE
The maximum amount guaranteed Three Hundred Million Japanese Yen
The term of this guarantee Valid Until August 21, 1996
In regard to any and all obligations the Principal presently owes and/or
may owe your Bank as a result of transactions at any time until the date set
forth above provided for in Article 1 of the Agreement of Bank Transactions as
well as the terms set forth below with regard to the performance of any such
obligations:
1. Even if you Bank changes or releases the security or other guarantees at
your Bank's convenience, the Guarantor shall not claim exemption from the
obligations.
2. The Guarantor shall not effect a setoff by any of the Principal's
deposits or credits with your Bank.
3.If and when the Guarantor performs any obligations of this guarantee, the
Guarantor shall not exercise any rights obtained from your Bank by subrogation
without the prior approval of your bank so long as transactions between the
Principal and your Bank continue. Upon your Bank's demand, the Guarantor shall
assign such rights and priority to your Bank without compensation.
4. In cases in which the Guarantor has given or gives in the future any
other guarantee in regard to any of the Principal's obligations to your Bank,
the total amount of the obligations guaranteed shall, unless otherwise agreed,
be the aggregate of such guarantees, and this guarantee shall not affect any
such other guarantees.
The Principal: Signature:
---------
Full Name:
Revenue
Stamp Address:
---------- The Guarantor: Signature: /s/
Full Name: William T. Wall
Address: Novellus Systems, Inc.
81 Vista Montana
San Jose, CA 95134
(All questions that may arise within or without courts of law in regard to the
meaning of the words, provisions and stipulations of the Agreement shall be
decided in accordance with the Japanese text.)
[GRAPHIC]
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COPY
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Date ,19
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TO: THE MITSUBISHI BANK, LIMITED
AGREEMENT ON BANK TRANSACTIONS
I/We do hereby agree to the terms and conditions set forth in the following
Articles in regard to my/our transactions with your Bank:
Article 1 (Scope of Application)
(1) I/We shall abide by this Agreement pertaining to the performance of
my/our obligations arising from loans against Bills of Exchange
(hereinafter referred to as "Bills"), discounts of Bills and Notes,
loans by deed, overdrafts, acceptances and guarantees, foreign
exchanges, and any and all other transactions.
(2) Even in cases in which your Bank has, through your Bank's transactions
with any third party, acquired Bills and Notes drawn, endorsed,
accepted, accepted by intervention, or guaranteed by me/us, I/we shall
also abide by this Agreement pertaining to the performance of my/our
obligations evidenced by such Bills and Notes.
Article 2 (Obligations in Bills and Notes and Money Borrowed)
In cases in which your Bank has granted me/us loans accompanied by Bills
and Notes, your Bank may demand from me/us the payment of my/our
obligations arising from the loans by exercising your Bank's rights either
on the Bills and Notes or on the loans.
Article 3 (Interest, Damages, etc.)
(1) In regard to the stipulations concerning the rates of interest,
discount charges, guarantee fees, handling commissions and rebates of
any thereof, and also concerning the time and method of payment
thereof, I/we shall agree, in the event of changes in the financial
situation or any other reasonable and probable causes arising, to the
revision of the stipulations to those in the range prevailing
generally
(2) In case I/we fail to perform any obligations which I/we owe your Bank,
I/we shall pay your Bank damages at the rate of 14% annum for the
amount payable. In this case the calculation will be made the actual
number of days on a 365-day basis.
Article 4 (Security)
(1) In cases in which a reasonable and probable cause necessitates the
preservation of your Bank's rights, I/we shall upon demand forthwith
furnish to your Bank such security or additional security, or such
guarantors or additional guarantors as may be approved by your Bank.
(2) Any and all security which has been furnished and that to be furnished
in the future to your Bank for specific obligations shall constitute
security that covers and secures not only such obligations, but also
any and all other obligations which I/we at present or in the future
may owe your Bank.
(3) Your Bank may collect or dispose of security in the manner, at the
time, and for the price, etc. generally deemed proper, not necessarily
following the procedures prescribed by law, and deduct expenses from
the proceeds and appropriate the remainder to the payment of my/our
obligations regardless of the priority prescribed by law; and in the
event any obligations still remain, I/we shall pay them forthwith.
(4) In cases in which I/we fail to perform any obligations which I/we owe
your Bank. Your Bank may collect or dispose of my/our movables, Bills
and Notes, and other instruments and securities in your Bank's
possession' and in such cases, I/we shall agree to your Bank's
handling the matter mutatis mutandis in the manner set forth in the
preceding Paragraph.
-3-
Article 5 (Acceleration of Payment)
(1) In case any one of the following events occurs to me/us, any and all
obligations I/we owe your Bank shall immediately become due and
payable without any notice or demand, etc. from your Bank: and I/we
shall pay such obligations forthwith;
1. When I/we have become unable to pay debts or application or
petition is submitted for bankruptcy, commencement of composition
of creditors, commencement of corporate reorganization
proceedings, commencement of company arrangement, or commencement
of special liquidation.
2. When the Clearing House in observance of its rules takes
procedures for suspension of my/our transactions with banks and
similar institutions.
3. When order or notice of provisional attachment. preservative
attachment or attachment is dispatched in respect of my/our or
the guarantor's deposits and/or any other credits with your Bank.
4. When my/our whereabouts become unknown to your Bank due to my/our
failure to notify your Bank of change of my/our address or any
other causes attributable to me/us.
(2) In any of the following cases, upon your Bank's demand, any and all
obligations I/we owe your Bank shall immediately become due and
payable; and I/we shall pay them forthwith:
1. When I/we fail to pay any of my/our obligations to your Bank when
it is due.
2. When property offered to your Bank as security is attached or
public auction procedure is commenced in respect of such
property.
3. When I/we violate the stipulation of any transactions with your
Bank.
4. When the guarantor fails under any one of the items of the
preceding items, when a reasonable and probable cause
necessitates the preservation of your Bank's rights.
5. In addition to each of the preceding items, when a reasonable and
probable cause necessitates the preservation of your Bank's
rights.
Article 6 (Repurchase of Discounted Bills and Notes)
(1) In cases in which I/we have has Bills and Notes discounted by your
Bank and any one of the items in Paragraph (1) of the preceding
Article occurs to me/us, then pertaining to all such Bills and Notes,
or in cases in which the principal obligators of my/our discounted
Bills and Notes fail to pay them on due dates or any one of the items
in Paragraph (1) of the preceding Article occurs to the principal
obligators, them pertaining to the Bills and Notes wherein such
persons are the principal obligates. I/we shall assume as a matter of
course the repurchasing obligations for the face value of my/our
discounted Bills and Notes without any notice or demand, etc. form
your Bank; and I/we shall pay them forthwith.
(2) In cases other than those provided for in the preceding Paragraph, in
which a reasonable and probable cause necessitates the preservation of
your Bank's rights pertaining to the Bills and Notes which your Bank
has discounted, I/we shall assume, upon your Bank's demand, the
repurchasing obligations for the face value of my/our discounted Bills
and Notes; and I/we shall pay them forthwith.
(3) As long as I/we do not perform the obligations set forth in the
preceding two paragraphs, your Bank may exercise any and all rights
as holder of the Bills and Notes.
Article 7 (Deductions in Accounts)
(1) In cases in which I/we must perform any obligations owed to your
Bank because they become due or because they become due or because of
acceleration of payment or because I/we have assumed the
-4-
repurchasing obligations or because your Bank has acquired the right
of claiming compensation from me/us or for any other causes, your Bank
may set off against any such obligations at any time any of my/our
deposits and/or any other credits with your Bank irrespective of the
due dates of such deposits and/or other credits.
(2) In cases in which your Bank is able to effect a setoff as mentioned in
the preceding paragraph, your Bank may also obtain withdrawals from
my/our deposits in lieu of my/our doing so, and may appropriate any
such withdrawals to payments of my/our obligations, omitting any
advance notice and also not adhering to established procedures.
(3) In cases in which your Bank makes any deductions in accounts according
to the provisions of the preceding two Paragraphs, interest on my/our
credits and obligations, discount charges and damages, etc. shall be
calculated up to the date on which the actual calculation is made by
your Bank for the purpose of deductions and the rate of interest and
tariffs shall be in accordance with those fixed by your Bank: and with
regard to the foreign exchange rate, the rate quoted at your Bank at
the time when the actual calculation is made by your Bank shall apply.
Article 7-2 (Ditto)
(1) I/we may set off any obligations I/we owe your Bank against my/our
deposits and/or any other credits with your Bank which have become
due, even when such obligations have not yet become due.
(2) When I/we effect a setoff under the provision of the preceding
Paragraph with regard to the Bills and Notes which your Bank has
discounted and assigned to a third party.
(3) With regard to my/our credits or obligations in foreign currency or in
free yen, I/we may not, notwithstanding the provisions of the
preceding two paragraphs, effect a setoff until and unless they have
become due and procedures required under foreign exchange laws and
regulations have been completed for them.
(4) In cases in which I/we effect a setoff under the provisions of the
preceding three Paragraphs, a notice of the setoff shall be made in
writing and I/we shall affix my/our seal impression (or signature)
which has previously been filed with our Bank to the certificate or
passbook representing my/our obligations and submit the same to your
Bank Forthwith.
(5) In cases in which I/we effect a setoff, interest on my/our credits and
obligations, discount charges and damages, etc. shall be calculated up
to the date on which my/our notice charges and damages, etc. shall be
calculated up to the date on which my.our notice of the setoff arrives
at your Bank, and the rate of interest and tariffs shall be in
accordance with those fixed by your Bank; and with regard to the
foreign exchange rate, the rate quoted at your Bank at the time when
the actual calculation is made by your Bank for the purpose of setoffs
shall allow. If there is an agreement providing for special charges
payable when obligations are paid prior to their due dates, I/we shall
abide by such agreement.
Article 8 (Presentment and Delivery of Bills and Notes)
(1) In cases in which there exist Bills and Notes pertaining to my/our
obligations, and your Bank makes deductions in accounts as set forth
in Article 7 without exercising your Bank's rights on the Bills and
Notes, your Bank need not simultaneously return to me/us any such
Bills and Notes.
(2) In cases in which there exist Bills and Notes which your Bank returns
to me/us as a result
-5-
of deductions in accounts made by your Bank or me/us under the
preceding two Articles. I/we shall appear at your Bank to receive
such Bills and Notes without delay: provided. however, that if such
Bills and Notes have not yet become due, your Bank may collect them
without returning them to me/us.
(3) In cases in which your Bank makes deductions in accounts as set froth
in Article 7 by exercising their rights on the Bills and Notes, your
Bank need not present nor deliver any such Bills and Notes to me.us in
the cases enumerated below; and as for my/our receiving such Bills and
Notes, the provisions of the preceding paragraph shall alloy mutatis
mutandis:
1. When your Bank does not know my/our whereabouts.
2. When I/we have designated your Bank as the place at which Bills
and Notes are made payable.
3. When it is deemed difficult to dispatch the Bills and Notes.
4. When it is deemed that presentment or delivery of the Bills and
Notes can not be made for unavoidable reasons as use for
collections, etc.
(4) In cases in which any of my/our obligations which require immediate
performance still exist after a deduction in accounts has been
effected as provided for in the preceding two Articles, and there also
exist obligators on the Bills and Notes besides me/us, your Bank may
appropriate the proceeds to the payment of my/our obligations.
Article 9 (Designation of Appropriation)
(1) In the event I/we made payments of your Bank made deductions in
accounts as provided for in Article 7, and if in such cases the amount
of such payments made by me/us or my/our deposits and any other
credits with your Bank are insufficient to liquidate all of my/our
obligations, your bank may appropriate the amount of such payments or
such deposits and other credits to satisfy my/our obligations in such
order and in such manner as your Bank deems proper and I/we shall
raise no objection to such appropriation.
Article 9-2 (Ditto)
(1) In the event I/we effect a setoff in accordance with Article 7-2, and
if in such case my/our deposits and any other credits with your Bank
are insufficient to liquidate all of my/our obligations, I/we may
appropriate such deposits and other credits to satisfy my/our
obligations in such order and in such manner as I/we designate.
(2) In the event I/we fail to designate the order and manner of
appropriation under the preceding Paragraph, your bank may appropriate
my/our deposits and other credits with your Bank to satisfy my/our
obligations in such order and in such manner as your Bank deems proper
and I/we shall raise no objection to such appropriation.
(3) In the event my/our designation under Paragraph (1) is likely to
interfere with the preservation of your Bank's rights, your Bank may,
upon lodging an objection thereto without delay, appropriate my/our
deposits and other credits with your Bank to satisfy my/our
obligations in such order and in such manner as your Bank designates
taking into consideration whether or not the obligations are secured
or guaranteed and if secured or guaranteed, the extent of coverage of
such security or guarantee, the degree of difficulty or disposition of
such security their due dates prospects for settlement of discounted
Bills and Notes, etc.
(4) In case of appropriation by your Bank under the preceding two
Paragraphs, your Bank may designate the order and manner or
appropriation on the assumption that my/our obligations which are in
fact not due have become due or that I/we have assumed the
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repurchasing obligations with regard to the Bills and Notes which your Bank
has discounted and which have not yet become due or that I/we have assumed
in advance the obligations to compensate your Bank with regard to the
acceptances and guarantees.
Article 10 (Assumption of Risks, Hold Harmless Clause, etc.)
(1) in cases in which Bills and Notes which I/we have furnished to your
Bank are lost, destroyed, damaged or delayed in arrival due to
unavoidable circumstances such as incidents, calamities, accidents
during transit, etc., I /we shall pay my/our obligations as recorded
on your Bank's nooks, vouchers, etc. and further, upon your Banks's
demand, I/we shall forthwith furnish your Bank with substitute Bills
and Notes or instruments. I/we shall make no claim whatsoever against
your Bank with regard to losses and damages arising in such cases.
(2) In cases in which security which I/we have furnished to your Bank is
lost or damaged due to unavoidable circumstances as set forth in the
preceding Paragraph. I/we shall make no claim whatsoever against your
Bank.
(3) Even if your Bank's rights on Bills and Notes are ineffective due to
lack of legal requirements in the Bills and Notes, or due to
invalidating entries thereon, or if your Bank's rights on the Bills
and Notes lapse die to inadequacy in the procedures for preservation
of your Bank's rights, I/we shall be liable for the face value of such
Bills and Notes.
(4) In transactions in which your Bank has deemed my/our seal impression
(or signature) genuine after checking with reasonable care the seal
impression (or signature) on Bills and Notes or instruments against
my/our seal impression (or specimen signature) filed with your Bank,
I/we shall bear any losses and damages arising from forgery,
alteration, wrongful use of Bills and Notes, instruments or seals (or
signatures) and shall be liable in accordance with the terms of any
such Bills and Notes or instruments.
(5) I/We shall bear the expenses incurred in exercising or preserving your
Bank's rights against me/us, or in collecting or disposing of any
security: and I/we shall also bear any expenses required in the event
I/we request your Bank to cooperate with me/us for the preservation of
my/our rights.
Article II (Changes in Matters Filed)
(1) In cases of a change in the matters filed with your Bank such as
my/seal (or signature), name, trade name, representative, address,
etc., I/we shall forthwith notify your Bank thereof in writing.
(2) In any case any notice given by your Bank or any documents, etc.
dispatched by your Bank are delayed or fail to reach me/us because of
my/our failure to notify your Bank in accordance with the preceding
Paragraph, the notice or documents, etc. shall be deemed to have
arrived at the time they normally should have arrived.
Article 12 (Report and Investigation)
(1) Upon your Bank's demand, I/we shall forthwith submit to your Bank
reports pertaining to my/our assets and liabilities, management or the
state of business; and I/we shall forthwith submit to your bank
reports thereof even in the absence of your Bank's demand.
(2) In cases in which material change has occurred or is likely to
occur pertaining to my/our assets and liabilities, management or
the state of business, I/we shall forthwith submit to your Bank
reports thereof even in the absence of your Bank's demand.
Article 13 (Applicable Offices)
(1) I/we agree that all of the terms and conditions of this Agreement
shall apply equally to all of our transactions with your Bank's head
office and branch offices.
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Article 14 (Jurisdiction by Agreement)
In the event the institution of a lawsuit in connection with a transaction
covered by this Agreement becomes necessary, I/we shall agree that the
Court having the jurisdiction in the locale in which the head office
or _________________ branch office of your Bank is situated shall be the
competent Court.
---------- Signature :
Revenue Full Name :
Stamp
Address :
----------
(All questions that may arise within or without courts of law in regard to
the meaning of the words, provisions and stipulations of this Agreement
shall be decided in accordance with the Japanese text.)
-8-
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA }
} s.s.
COUNTY OF SANTA CLARA }
ON THIS 31ST DAY OF AUGUST, 1995 BEFORE ME, R.E. STANDISH, NOTARY PUBLIC,
PERSONALLY APPEARED WILLIAM J. WALL --------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
/ / PERSONALLY KNOWN TO ME-OR -/ /PROVED TO ME ON THE BASIS OF SATISFACTORY
EVIDENCE TO BE THE PERSON /S WHOSE
NAME /S IS/ARE SUBSCRIBED TO THE WITHIN
INSTRUMENT AND ACKNOWLEDGED TO ME THAT
HE/SHE/THEY EXECUTED THE SAME IN
HIS/HER/THEIR AUTHORIZED CAPACITIES, AND
THAT HIS/ HER/ THEIR SIGNATURE /S ON THE
[SEAL] INSTRUMENT THE PERSON /S OR THE ENTITY
UPON BEHALF OF WHICH THE PERSON /S ACTED
EXECUTED THE INSTRUMENT.
WITNESS MY HAND AND OFFICIAL SEAL.
/S/ R.E STANDISH
----------------------------------------
(SEAL) R.E. STANDISH NOTARY PUBLIC
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW:
TITLE OR TYPE OF DOCUMENT GUARANTEE
----------------------------------------------------
NUMBER OF PAGES SIX (6) DATE OF DOCUMENT AUGUST 31, 1995
-------------- --------------------------------
SIGNERS OTHER THAN NAMED ABOVE
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/X/ INDIVIDUAL /X/ CORPORATE OFFICER(S) TITLES(S) C.F.O
----------------------
/ / PARTNERS / / LIMITED
/ / GENERAL
/ / ATTORNEY - IN - FACT
/ / TRUSTEE(S) / / TRUSTOR(S) / /BENEFICIARY/S/
/ / GUARDIAN/CONSERVATOR
/ / OTHER:
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[LOGO]
SIGNER IS REPRESENTING: NOVELLUS
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RESOLVED, that this Corporation, Novellus Systems, Inc. is hereby authorized to
give a letter of guarantee for a loan extended to its subsidiary, Nippon
Novellus Systems, KK by the Mitsubishi Bank, LTD. Naruse Branch 2-2
Minaminaruse, 1-chome Machida, Tokyo 194 Japan.
CORPORATE SECRETARY'S CERTIFICATE
I, WILLIAM J. WALL, Secretary of NOVELLUS SUSTEMS, INC., a corporation
organized and existing under the laws of the State of CALIFORNIA (the
"Corporation"), hereby certify that the foregoing is a full, true and correct
copy of resolutions of the Board of Director of the Corporation, duly and
regularly adopted by the Board of Directors of the Corporations in all respects
as required by law and the by-laws of the Corporation on JULY 21, 1995, at a
meeting at which a quorum of the Board of Directors of the Corporation was
present and the requisite number of such directors voted in favor of said
resolutions, or by the unanimous consent in writing of all members of the Board
of Directors of the Corporation to the adoption of said resolutions.
I further certify that said resolutions are still in full force and effect
and have not been amended or revoked, and that the specimen signatures appearing
below are the signatures of the officers authorized to sign for the Corporation
by virtue of such resolutions.
IN WITNESS WHEREOF, I have hereunto set my hand as Secretary of the
Corporation, and affixed the corporate seal of the Corporation, on JULY 21,
1995.
/s/William J. Wall
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SIGNATURE SECRETARY OF
Novellus Systems, Inc.
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AFFIX
CORPORATE
SEAL HERE A California CORPORATION
----------------------------