AMENDMENT NUMBER TWO TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Exhibit 10.61
AMENDMENT NUMBER TWO TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This Amendment Number Two to Amended and Restated Loan and Security Agreement
(“Amendment”) is entered into as of November 21, 2005, by and between COMERICA BANK
(“Bank”) and ASYST TECHNOLOGIES, INC., a California corporation (“Borrower”), in
light of the following:
A. Borrower and Bank have previously entered into that certain Amended and Restated Loan and
Security Agreement, dated as of May 15, 2004 (as amended from time to time, the “Loan
Agreement”).
B. In connection with the Loan Agreement, Borrower and Bank have entered into various other
agreements (such agreements, together with the Loan Agreement, are collectively referred to herein
as the “Loan Documents”).
C. Borrower and Bank desire to amend certain terms of the Loan Agreement as provided for and
on the conditions set forth in this Amendment.
NOW, THEREFORE, Borrower and Bank hereby amend and supplement the Loan Agreement as follows:
1. DEFINITIONS. All initially capitalized terms used in this Amendment shall have the
meanings given to them in the Loan Agreement, unless otherwise specifically defined herein.
2. AMENDMENTS.
(a) Section 2.1(b)(i) of the Loan Agreement is hereby amended to read as follows:
(i) Subject to and upon the terms and conditions of this Agreement (1)
Borrower may request Advances in an aggregate outstanding amount not to
exceed the lesser of (A) the Committed Revolving Line or (B) the Borrowing
Base, less any amounts outstanding under the Letter of Credit Sublimit, and
(2) amounts borrowed pursuant to this Section 2.1(b) may be repaid and
reborrowed at any time prior to the Revolving Maturity Date, at which time
all Advances under this Section 2.1(b) shall be immediately due and payable.
Advances shall be in a minimum amount of $1,000,000 each and integral
multiples of $50,000 in excess of the amount; provided that no more than
five LIBOR Rate Advances shall be outstanding at any time. Borrower may
prepay any Advances without penalty or premium other than LIBOR Funding
Losses. Borrower shall indemnify, defend, and hold Bank harmless against
any loss, reasonable cost, or reasonable expense incurred by Bank as a
result of (a) the payment of any principal of any LIBOR Rate Advance other
than on the last day of an Interest Period applicable thereto (including as
a
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result of an Event of Default), or (b) the failure to borrow, continue or
repay any LIBOR Rate Advance on the date specified in any
Payment/Advance notice provided pursuant to subsection (ii) below
(other than a default by Bank).
(b) Section 2.1(b) of the Loan Agreement is hereby amended to add a subsection (iii) to read
as follows:
(iii) Letter of Credit Sublimit. Subject to the availability under the
Revolving Line, and in reliance on the representations and warranties of Borrower
set forth herein, at any time and from time to time from the date hereof through the
Business Day immediately prior to the Revolving Maturity Date, Bank shall issue for
the account of Borrower such Letters of Credit as Borrower may request by delivering
to Bank a duly executed letter of credit application on Bank’s standard form;
provided, however, that the outstanding and undrawn amounts under all such Letters
of Credit (i) shall not at any time exceed the Letter of Credit Sublimit, and (ii)
shall be deemed to constitute Advances for the purpose of calculating availability
under the Revolving Line; and provided, further, however, that the term of each
Letter of Credit shall not exceed one year but may have “evergreen” renewal
provisions. Any drawn but unreimbursed amounts under any Letters of Credit shall be
charged as Advances against the Revolving Line. All Letters of Credit shall be in
form and substance acceptable to Bank in its sole discretion and shall be subject to
the terms and conditions of Bank’s form application and letter of credit agreement.
Borrower will pay any standard issuance and other fees that Bank notifies Borrower
it will charge for issuing and processing Letters of Credit.
(c) Section 2.1(b) of the Loan Agreement is hereby amended to add a subsection (iv) to read as
follows:
(iv) Collateralization of Obligations Extending Beyond Maturity. If
Borrower has not secured to Bank’s satisfaction its obligations with respect to any
Letters of Credit by the Revolving Maturity Date, then, effective as of such date,
the balance in any deposit accounts held by Bank and the certificates of deposit or
time deposit accounts issued by Bank in Borrower’s name (and any interest paid
thereon or proceeds thereof, including any amounts payable upon the maturity or
liquidation of such certificates or accounts), shall automatically secure such
obligations to the extent of the then continuing or outstanding and undrawn Letters
of Credit. Borrower authorizes Bank to hold such balances in pledge and to decline
to honor any drafts thereon or any requests by Borrower or any other Person to pay
or otherwise transfer any part of such balances for so long as the Letters of Credit
are outstanding or continue.
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(d) Section 9.1 of the Loan Agreement is hereby amended to add a new subsection (b) to read as
follows, and existing subsections (b) – (i) are each renumbered to (c) – (j), respectively:
(b) Demand that Borrower (i) deposit cash with Bank in an amount equal to the
amount of any Letters of Credit remaining undrawn, as
collateral security for the repayment of any future drawings under such Letters of
Credit, and (ii) pay in advance all Letter of Credit fees scheduled to be paid or
payable over the remaining term of the Letters of Credit, and Borrower shall
promptly deposit and pay such amounts;
(e) The definition of “Committed Revolving Line” set forth in Exhibit A to the Loan Agreement
is hereby amended to read as follows:
“Committed Revolving Line” means a credit extension of up to $40,000,000
(inclusive of any amounts outstanding under the Letter of Credit Sublimit),
determined as follows: the amount of the Committed Revolving Line shall
equal the sum of $25,000,000 plus the positive difference, if any, of (a)
$65,000,000, less (b) the aggregate funded and available Indebtedness of
Borrower’s Subsidiary Asyst Shinko, Inc.
(f) Exhibit A to the Loan Agreement is hereby amended to add thereto definitions of “Letter of
Credit” and “Letter of Credit Sublimit” as follows:
“Letter of Credit” means a commercial or standby letter of credit or similar
undertaking issued by Bank at Borrower’s request in accordance with Section
2.1(b)(iii).
“Letter of Credit Sublimit” means a sublimit for Letters of Credit under the
Revolving Line not to exceed $2,000,000.
(g) Section 11 of the Loan Agreement is hereby amended to read as follows:
11. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER
11.1 This Agreement shall be governed by, and construed in accordance with, the
internal laws of the State of California, without regard to principles of conflicts
of law. Each of Borrower and Bank hereby submits to the exclusive jurisdiction of
the state and Federal courts located in the County of Santa Xxxxx, State of
California.
11.2 JURY TRIAL WAIVER. THE UNDERSIGNED ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY
JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED UNDER CERTAIN CIRCUMSTANCES.
TO THE EXTENT PERMITTED BY LAW, EACH PARTY, AFTER CONSULTING (OR HAVING HAD THE
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OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS CHOICE, KNOWINGLY AND VOLUNTARILY, AND
FOR THE MUTUAL BENEFIT OF ALL PARTIES, WAIVES ANY RIGHT TO TRIAL BY JURY IN THE
EVENT OF LITIGATION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY RELATED LOAN
DOCUMENT OR ANY OTHER DOCUMENT, INSTRUMENT OR AGREEMENT BETWEEN THE UNDERSIGNED
PARTIES.
11.3 JUDICIAL REFERENCE PROVISION.
(a) In the event the Jury Trial Waiver set forth in Section 11.2 is not
enforceable, the parties elect to proceed under this Judicial Reference Provision.
(b) With the exception of the items specified in clause (c), below, any
controversy, dispute or claim (each, a “Claim”) between the parties arising out of
or relating to this Agreement or other Loan Document or any other document,
instrument or agreement between the undersigned parties (collectively in this
Section, the “Comerica Documents”), will be resolved by a reference proceeding in
California in accordance with the provisions of Sections 638 et seq. of the
California Code of Civil Procedure (“CCP”), or their successor sections, which shall
constitute the exclusive remedy for the resolution of any Claim, including whether
the Claim is subject to the reference proceeding. Except as otherwise provided in
the Comerica Documents, venue for the reference proceeding will be in the state or
federal court in the county or district where the real property involved in the
action, if any, is located or in the state or federal court in the county or
district where venue is otherwise appropriate under applicable law (the “Court”).
(c) The matters that shall not be subject to a reference are the following: (i)
nonjudicial foreclosure of any security interests in real or personal property, (ii)
exercise of self-help remedies (including, without limitation, set-off), (iii)
appointment of a receiver and (iv) temporary, provisional or ancillary remedies
(including, without limitation, writs of attachment, writs of possession, temporary
restraining orders or preliminary injunctions). This reference provision does not
limit the right of any party to exercise or oppose any of the rights and remedies
described in clauses (i) and (ii) or to seek or oppose from a court of competent
jurisdiction any of the items described in clauses (iii) and (iv). The exercise of,
or opposition to, any of those items does not waive the right of any party to a
reference pursuant to this reference provision as provided herein.
(d) The referee shall be a retired judge or justice selected by mutual written
agreement of the parties. If the parties do not agree within ten (10) days of a
written request to do so by any party, then, upon request of any party, the referee
shall be selected by the Presiding Judge of the Court (or his or her
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representative). A request for appointment of a referee may be heard on an ex parte
or expedited basis, and the parties agree that irreparable harm would result if ex
parte relief is not granted. Pursuant to CCP § 170.6, each party shall have one
peremptory challenge to the referee selected by the Presiding Judge of the Court (or
his or her representative).
(e) The parties agree that time is of the essence in conducting the reference
proceedings. Accordingly, the referee shall be requested, subject to change in the
time periods specified herein for good cause shown, to (i) set the matter for a
status and trial-setting conference within fifteen (15) days after the
date of selection of the referee, (ii) if practicable, try all issues of law or fact
within one hundred twenty (120) days after the date of the conference and (iii)
report a statement of decision within twenty (20) days after the matter has been
submitted for decision.
(f) The referee will have power to expand or limit the amount and duration of
discovery. The referee may set or extend discovery deadlines or cutoffs for good
cause, including a party’s failure to provide requested discovery for any reason
whatsoever. Unless otherwise ordered based upon good cause shown, no party shall be
entitled to “priority” in conducting discovery, depositions may be taken by either
party upon seven (7) days written notice, and all other discovery shall be responded
to within fifteen (15) days after service. All disputes relating to discovery which
cannot be resolved by the parties shall be submitted to the referee whose decision
shall be final and binding.
(g) Except as expressly set forth herein, the referee shall determine the
manner in which the reference proceeding is conducted including the time and place
of hearings, the order of presentation of evidence, and all other questions that
arise with respect to the course of the reference proceeding. All proceedings and
hearings conducted before the referee, except for trial, shall be conducted without
a court reporter, except that when any party so requests, a court reporter will be
used at any hearing conducted before the referee, and the referee will be provided a
courtesy copy of the transcript. The party making such a request shall have the
obligation to arrange for and pay the court reporter. Subject to the referee’s power
to award costs to the prevailing party, the parties will equally share the cost of
the referee and the court reporter at trial.
(h) The referee shall be required to determine all issues in accordance with
existing case law and the statutory laws of the State of California. The rules of
evidence applicable to proceedings at law in the State of California will be
applicable to the reference proceeding. The referee shall be empowered to enter
equitable as well as legal relief, enter equitable orders that will be binding on
the parties and rule on any motion which would be authorized in a court proceeding,
including without limitation motions for summary judgment or summary adjudication.
The referee shall issue a decision at the close
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of the reference proceeding which
disposes of all claims of the parties that are the subject of the reference.
Pursuant to CCP § 644, such decision shall be entered by the Court as a judgment or
an order in the same manner as if the action had been tried by the Court and any
such decision will be final, binding and conclusive. The parties reserve the right
to appeal from the final judgment or order or from any appealable decision or order
entered by the referee. The parties reserve the right to findings of fact,
conclusions of laws, a written statement of decision, and the right to move for a
new trial or a different judgment, which new trial, if granted, is also to be a
reference proceeding under this provision.
(i) If the enabling legislation which provides for appointment of a referee is
repealed (and no successor statute is enacted), any dispute between
the parties that would otherwise be determined by reference procedure will be
resolved and determined by arbitration. The arbitration will be conducted by a
retired judge or justice, in accordance with the California Arbitration Act §1280
through §1294.2 of the CCP as amended from time to time. The limitations with
respect to discovery set forth above shall apply to any such arbitration proceeding.
(j) THE PARTIES RECOGNIZE AND AGREE THAT ALL CONTROVERSIES, DISPUTES AND CLAIMS
RESOLVED UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A
JURY. AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF
ITS, HIS OR HER OWN CHOICE, EACH PARTY KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL
BENEFIT OF ALL PARTIES, AGREES THAT THIS REFERENCE PROVISION WILL APPLY TO ANY
CONTROVERSY, DISPUTE OR CLAIM BETWEEN OR AMONG THEM ARISING OUT OF OR IN ANY WAY
RELATED TO, THIS AGREEMENT OR OTHER LOAN DOCUMENTS OR THE OTHER COMERICA DOCUMENTS.
3. REPRESENTATIONS AND WARRANTIES. Borrower hereby affirms to Bank that all of Borrower’s
representations and warranties set forth in the Loan Agreement are true, complete and accurate in
all material respects as of the date hereof (after giving effect to the waiver amendments provided
herein).
4. NO DEFAULTS. Borrower hereby affirms to Bank that no Event of Default has occurred and
is continuing as of the date hereof (after giving effect to the waiver amendments provided herein).
5. CONDITION PRECEDENT. The effectiveness of this Amendment is expressly conditioned upon
the receipt by Bank of an executed copy of this Amendment.
6. COSTS AND EXPENSES. Borrower shall pay to Bank all of Bank’s out-of-pocket costs and
expenses (including, without limitation, the reasonable fees and expenses of its counsel, which
counsel may include any local counsel deemed necessary, search fees, filing and
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recording fees,
documentation fees, appraisal fees, travel expenses, and other fees) arising in connection with the
preparation, execution, and delivery of this Amendment and all related documents.
7. LIMITED EFFECT. In the event of a conflict between the terms and provisions of this
Amendment and the terms and provisions of the Loan Agreement, the terms and provisions of this
Amendment shall govern. In all other respects, the Loan Agreement, as amended and supplemented
hereby, shall remain in full force and effect.
8. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, each of which when so executed and
delivered shall be deemed to be an original. All such counterparts, taken together, shall
constitute but one and the same Amendment. This Amendment shall become effective upon the
execution of a counterpart of this Amendment by each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first set
forth above.
| COMERICA BANK | ||||||
| By: | /s/ Xxxxxxxxx Xxxxx | |||||
| Title: | Vice President | |||||
| ASYST TECHNOLOGIES, INC., a California corporation |
||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||
| Xxxxxxx X. Xxxxxxxx | ||||||
| Title: | Chief Executive Officer, President | |||||
| By: | /s/ Xxxxxx X. Xxxx | |||||
| Xxxxxx X. Xxxx | ||||||
| Title: |
Chief Financial Officer, Senior Vice President |
|||||
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