EXHIBIT 10.26
THIRD MODIFICATION TO
SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
This Third Modification to Second Amended and Restated Loan and Security
Agreement (this "Modification") is entered into by and between FORMFACTOR, INC.,
a Delaware corporation ("Borrower") and COMERICA BANK-CALIFORNIA, a California
banking corporation, as successor by merger to Imperial Bank ("Lender") as of
May 14, 2002.
RECITALS
This Modification is entered into upon the basis of the following facts
and understandings of the parties, which facts and understandings are
acknowledged by the parties to be true and accurate:
Lender and Borrower previously entered into that certain Second Amended
and Restated Loan and Security Agreement, dated March 20, 2001, as modified by
that certain First Modification to Second Amended and Restated Loan and Security
Agreement, dated as of September 17th, 2001, and by that certain Second
Modification to Second Amended and Restated Loan and Security Agreement, dated
as of January 15, 2002. The certain Second Amended and Restated Loan and
Security Agreement, as so modified and as otherwise amended by any subsequent
modification, amendment, restatement, supplement or revision thereto shall
collectively be referred to herein as the "Agreement."
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as set forth
below.
AGREEMENT
1. Incorporation by Reference. The Recitals and the documents referred to
therein are incorporated herein by this reference. Except as otherwise noted,
the terms not defined herein shall have the meaning set forth in the Agreement.
2. Modification to the Agreement. Subject to the satisfaction of the
conditions precedent as set forth in Section 4 hereof, the Agreement is hereby
modified as set forth below.
(a) The definition of "Maturity Date" contained in the first
sentence of subsection 1.1.1 of the Agreement hereby is amended and restated in
its entirety and replaced with July 31, 2002.
(b) The first sentence of subsection 1.2.1 of the Agreement hereby
is amended and restated in its entirety and replaced with the following:
Subject to the terms and conditions of this Agreement, from time to
time from the Closing Date to the Maturity Date, Lender shall, upon
Borrower's request in accordance with this Agreement, make advances (each
a "Converting Non-Revolving Loan" and collectively, the "Converting
Non-Revolving Loans") to Borrower in an aggregate amount not to exceed
$2,000,000, the proceeds of which shall be used by Borrower only for the
acquisition of Equipment.
(c) Subsection 5.5.3 of the Agreement hereby is amended and restated
in its entirety and replaced with the following:
5.5.3 COMPLIANCE CERTIFICATE. At the same time as each request for a
Revolving Loan under subsection 1.1.1 of this Agreement and concurrently
with the submission of each financial statement of Borrower required under
this Agreement, a certificate signed by chief financial officer of
Borrower, stating that as of the date thereof, Borrower has performed and
observed each and every covenant contained in this Agreement to be
performed by it and that no event has occurred and no condition then
exists which constitutes an event of default hereunder or would constitute
such an event of default upon the lapse of time or upon the giving of
notice and the lapse of time specified herein; or, if any such event has
occurred or any such condition exists, specifying the nature thereof, all
in form and substance satisfactory to Lender;
(d) The following new Section 5.11 is hereby inserted in the
Agreement in its entirety immediately following existing section 5.10 thereof:
5.11 AUDITS. Borrower shall permit representatives of Lender to
conduct audits of Borrower's Books relating to the Accounts and other
Collateral and make extracts therefrom, with results satisfactory to
Lender, provided that Lender shall use its best efforts to not interfere
with the conduct of Borrower's business and to the extent possible to
arrange for verification of the Accounts directly with the account debtors
obligated thereon or otherwise, all under reasonable procedures acceptable
to Lender and at Borrower's sole expense, provided, however, that, prior
to an Event of Default, Borrower shall not be responsible for more than
one (1) such audit in each calendar year. Notwithstanding any of the
provisions contained in Section 1.1.1 of this Agreement or otherwise,
Borrower hereby acknowledges and agrees that upon completion of any such
audit Lender shall have the right to adjust the Maximum Revolving Amount,
in its sole and reasonable discretion, based on its review of the results
of such collateral audit. This right to conduct audits of Borrower's Books
relating to the Accounts and other Collateral is conditional upon (i) the
inspecting entities' execution of the Confidentiality Letter Agreement and
(ii) the treatment of all information contained in Borrower's Books as
confidential consistent with the Confidentiality Letter Agreement.
3. Legal Effect. Except as specifically set forth in this Modification,
all of the terms and conditions of the Agreement remain in full force and
effect. Except as expressly set forth herein, the execution, delivery, and
performance of this Modification shall not operate as a waiver of, or as an
amendment of, any right, power, or remedy of Lender under the Agreement, as in
effect prior to the date hereof. Borrower ratifies and reaffirms the continuing
effectiveness of all promissory notes, guaranties, security agreements,
mortgages, deeds of trust, environmental agreements, and all other instruments,
documents and agreements entered into in connection with the Agreement. Borrower
represents and warrants that the Representations and Warranties contained in the
Agreement are true and correct as of the date of this Modification, and that no
Event of Default has occurred and is continuing. The effectiveness of this
Modification and each of the documents, instruments and agreements entered into
in connection with this Modification, including without limit any replacement
promissory note entered into in connection herewith, is conditioned upon receipt
by Lender of this Modification, any other documents which Lender may require to
carry out the terms hereof, and including but not limited to each of the
following:
(a) a non-refundable legal documentation fee of $500, plus any
Lender expenses incurred through the date of this Modification;
(b) Borrower's corporate resolution, authorizing Borrower's entry
into this Modification; and
(c) Such other documents and completion of such other matters, as
Lender may reasonably deem necessary or appropriate to carry out the terms
hereof.
4. Miscellaneous Provisions.
(a) This is an integrated Modification and supersedes all prior
negotiations and agreements regarding the subject matter hereof. All amendments
hereto must be in writing and signed by the parties.
(b) This Modification may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one instrument.
IN WITNESS WHEREOF, the parties have agreed as of the date first set forth
above.
FORMFACTOR, INC., COMERICA BANK-CALIFORNIA,
a Delaware corporation a California corporation
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxxxxx X. Xxx
----------------------------------- -----------------------------------
Name: Xxxx Xxxxxxxxx Name: Xxxxxxxx X. Xxx
--------------------------------- ---------------------------------
Title: Chief Financial Officer Title: Vice President
-------------------------------- --------------------------------
Comerica SECOND MODIFICATION TO SECOND AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
This Second Modification to Second amended and Restated Loan and
Security Agreement (this "Modification") is entered into by and between
FORMFACTOR, INC., a Delaware corporation ("Borrower") and COMERICA
BANK-CALIFORNIA, a California banking corporation, as successor by merger to
Imperial Bank ("Bank") as of January 15, 2002.
RECITALS
This Modification is entered into upon the basis of the following facts
and understandings of the parties, which facts and understandings are
acknowledged by the parties to be true and accurate:
Bank and Borrower previously entered into that certain Second Amended
and Restated Loan and Security Agreement, dated March 20, 2001, as modified by
that certain First Modification to Second Amended and Restated Loan and Security
Agreement, dated as of September 17th, 2001. The certain Second Amended and
Restated Loan and Security Agreement, as so modified, and as otherwise amended
by any subsequent modification, amendment, restatement, supplement or revision
thereto shall collectively be referred to herein as the "Agreement".
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as set forth
below.
AGREEMENT
1. Incorporation by Reference. The Recitals and the documents referred
to therein are incorporated herein by this reference. Except as otherwise noted,
the terms not defined herein shall have the meaning set forth in the Agreement.
2. Modification to the Agreement. Subject to the satisfaction of the
conditions precedent as set forth in Section 4 hereof, the Agreement is hereby
modified as set forth below.
(a) Each reference in the Agreement to "Imperial Bank" is hereby
deleted and replaced with "Comerica Bank-California."
(b) Section 7.5 of the Agreement hereby is amended and restated
its entirety and replaced with the following:
7.5 LIMITATION ON LOSSES. Not incur, on a consolidated basis
measured as of the last day of each fiscal quarter, a net loss in excess
of: (i) $1,000,000 for the quarter ended December 29, 2001; (ii)
$5,000,000 for the quarter ended Xxxxx 00, 0000, (xxx) $1,500,000 for
the quarter ended June 29, 2002; and (iv) $-0- for the quarter ended
September 28, 2002 and as of each quarter and thereafter.
(c) Section 7.7 of the Agreement hereby is amended and restated
its entirety and replaced with the following:
7.7 CASH AND EQUIVALENTS. Maintain as of last day of the month
ended December 29, 2001 and as of the last day of each month thereafter,
cash and cash equivalents in an aggregate amount of not less than
$15,000,000.
3. Modification to Other Loan Documents. Subject to the satisfaction of
the conditions precedent as set forth in Section 4 hereof, each other document,
instrument of agreement entered into by Borrower with or in favor of Bank in
connection with the Agreement (collectively, the "Loan Documents') are hereby
modified as set forth below:
A. Each reference in the Loan Documents to "Imperial Bank" is
hereby deleted and replaced with "Comerica Bank - California."
4. Legal Effect. Except as specifically set forth in this Modification,
all of the terms and conditions of the Agreement remain in full force and
effect. Except as expressly set forth herein, the execution, delivery, and
performance of this Amendment shall not operate as a waiver of, or as an
amendment of, any right, power, or remedy of Bank under the Agreement, as in
effect prior to the date hereof. Borrower ratifies and reaffirms the continuing
effectiveness of all promissory notes, guaranties, security agreements,
mortgages, deeds of trust, environmental agreements, and all other instruments,
documents and agreements entered into in connection with the Agreement. Borrow
represents and warrants that the Representations and Warranties contained in the
Agreement are true and correct as of the date of this Amendment, and that no
Event of Default has occurred and is continuing. The effectiveness of this
Modification and each of the documents, instruments and agreements entered into
in connection with this Modification, including without limit any replacements
promissory note entered into in connection herewith, is conditioned upon receipt
by Bank of this Modification, any other documents which Bank may require to
carry out the terms hereof, and including but not limited to each of the
following:
(a) A non-refundable documentation fee of $250, plus any Bank
expenses incurred through the date of this Modification; and
(b) Such other documents and completion of such other matters, as
Bank may reasonably deem necessary or appropriate to carry out the terms hereof.
5. Miscellaneous Provisions.
(a) This is an integrated Modification and supersedes all prior
negotiations and agreements regarding the subject matter hereof. All amendments
hereto must be in writing and signed by the parties.
(b) This Modification may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, the parties have agreed as of the date first set
forth above.
FORMFACTOR, INC., COMERICA BANK - CALIFORNIA
a Delaware corporation a California banking corporation
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxxxxx Xxx
Name: Xxxx Xxxxxxxxx Name: Xxxxxxxx Xxx
Title: CFO Title: Vice President
