FIRST AMENDMENT TO EXPORT-IMPORT BANK OF THE
UNITED STATES WORKING CAPITAL GUARANTEE
PROGRAM BORROWER AGREEMENT
THIS FIRST AMENDMENT TO EXPORT-IMPORT BANK OF THE UNITED STATES WORKING
CAPITAL GUARANTEE PROGRAM BORROWER AGREEMENT (this "Amendment"), is entered into
by and among Adept Technology, Inc., a California corporation ("Borrower") and
The CIT Group/Commercial Services, Inc. on behalf of its affiliate The CIT
Group/Business Credit, Inc. ("Lender"), and shall be deemed effective as of July
10, 2001.
RECITALS
Whereas, Borrower executed an Export-Import Bank of the United States
Working Capital Guarantee Program Borrower Agreement dated as of April 5, 2001
(the "Borrower Agreement") in favor of the Export-Import Bank of the United
States ("Ex-Im Bank") and Lender as a condition to Lender's entry into the Loan
and Security Agreement (EXIM Facility) and Loan and Security Agreement (Non-EXIM
Facility) with Borrower each dated as of April 5, 2001 (collectively, the "CIT
Loan Agreements"); and
Whereas, Borrower and Lender wish to amend the Borrower Agreement to
permit the Borrower to undertake acquisitions of other business entities within
the same industry as Borrower without Ex-Im Bank's and Lender's prior written
consent so long as Borrower satisfies certain financial conditions.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises, covenants and conditions hereinafter set forth, the parties
hereto agree as follows:
ARTICLE 1
AMENDMENT
1.1 DEFINITIONS. Capitalized terms used but not defined in this
Amendment shall have the meanings given them in the Borrower Agreement.
1.2 AMENDMENTS TO BORROWER AGREEMENT. The Borrower Agreement is hereby
amended by inserting the following text at the end of Section 2.15:
"; provided that if no Event of Default (as defined in the Loan
Agreement) has occurred unless such Event of Default has been cured to the
extent permitted herein Borrower may undertake acquisitions of other business
entities within the same industry as Borrower without Lender's prior written
approval, so long as (i) immediately after giving effect to such acquisition,
Borrower's Aggregate Excess Availability (as defined in the Loan Agreement) plus
unrestricted and unencumbered (other than liens in favor of Lender) cash
equivalents and cash (in U.S. Dollars in domestic bank accounts) of the Borrower
and its subsidiaries is no less than $7,500,000, (ii) the proforma financial
projections (which shall be in form and substance reasonably acceptable to the
Lender) of the Borrower and its subsidiaries on a consolidated basis after
giving effect to any such acquisition reflects that the proforma consolidated
unrestricted and unencumbered (other than liens in favor of Lender) cash
equivalents and cash (in U.S. Dollars in domestic bank accounts) of the Borrower
and its subsidiaries plus the Borrower's Aggregate Excess Availability will be
positive over the 12 months immediately following the completion of any such
acquisition, and (iii) Borrower executes any and all documents or agreements or
performs such acts as Lender may reasonably require to preserve Lender's
perfected first priority security interest in the assets of Borrower and its
rights and remedies under the Loan Agreement and applicable law."
ARTICLE 2
MISCELLANEOUS
2.1 HEADINGS. The headings in this Amendment are intended solely for
convenience and shall not be construed as limiting or expanding the terms of
this Amendment.
2.2 COUNTERPARTS. This Amendment may be signed in any number of
counterparts with the same effect as if the signatures to each counterpart were
upon a single instrument. All counterparts shall be deemed an original of this
Amendment.
2.3 REAFFIRMATION OF LOAN AGREEMENT. Except as modified by the terms
herein, the Borrower Agreement and the CIT Loan Agreements remain in full force
and effect. If there is any conflict between the terms and provisions of this
Amendment and the terms and provisions of the Borrower Agreement and the CIT
Loan Agreements, the terms and provisions of this Amendment shall govern.
2.4 GOVERNING LAW. This Amendment shall be governed by, and construed
in accordance with, the law of the state California.
2.5 ATTORNEYS' FEES; COSTS. Borrower agrees to pay, on demand, all
reasonable attorneys' fees and costs incurred in connection with the
negotiation, documentation and execution of this Amendment. If any legal action
or proceeding shall be commenced at any time by any party to this Amendment in
connection with its interpretation or enforcement, the prevailing party or
parties in such action or proceeding shall be entitled to reimbursement of its
reasonable attorneys' fees and costs in connection therewith, in addition to all
other relief to which the prevailing party or parties may be entitled.
2.6 WAIVER OF JURY TRIAL. BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY ACTION, SUIT, PROCEEDING OR
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OTHER LITIGATION BROUGHT TO RESOLVE ANY DISPUTE ARISING UNDER, ARISING OUT OF OR
IN CONNECTION WITH THIS AMENDMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OR OMISSIONS OF LENDER, EX-IM
BANK, OR ANY OTHER PERSON, RELATING TO THIS AMENDMENT.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties executed this Amendment to be effective
as of the date first written above.
ADEPT TECHNOLOGY, INC.
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Director of Finance
THE CIT GROUP/COMMERCIAL
SERVICES, INC. on behalf of its affiliate
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxx Xxxxxx
-----------------
Name: Xxxx Xxxxxx
Title: Account Manager
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