AMENDMENT NO. 2 TO LOAN AGREEMENT
Exhibit
10.1
AMENDMENT
NO. 2 TO LOAN AGREEMENT
This Amendment No. 2 to Loan Agreement
(this "Amendment"), is made
and entered into as of September 30, 2009 between BANK OF AMERICA, N.A., a
national banking association ("Bank") and KEY TECHNOLOGY, INC., an
Oregon corporation ("Borrower").
W I T N E
S S E T H:
WHEREAS, pursuant to a Loan Agreement
dated as of December 10, 2008, Bank agreed to make credit facilities in the
aggregate principal sum of $16,400,000.00 available to Borrower (the "Loan").
WHEREAS, the Loan Agreement was amended
by Amendment No. 1 to Loan Agreement dated February 16, 2009. The
Loan Agreement, the First Amendment and this Amendment are hereinafter
collectively referred to as “Loan Agreement.”
NOW, THEREFORE, the parties hereto
mutually agree to modify the Loan Agreement as hereinafter provided, and do
hereby covenant and agree as follows:
1. Definitions. Capitalized terms
used but not defined in this Amendment shall have the meaning given to them in
the Loan Agreement.
2. Amendments. The Loan
Agreement is hereby amended as follows:
2.1 Subparagraph
1.1(a) of the Loan Agreement is hereby amended to read in its entirety as
follows:
“Line of Credit
Amount.
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(a)
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"During
the availability period described below, the Bank will provide a line of
credit to the Borrower. The amount of the line of credit (the
"Facility No. 1 Commitment") is hereby increased from $10,000,000.00 to
$15,000,000.00. Each and every reference in the Loan Documents
to the amount of this line of credit and/or the Facility No. 1 Commitment
shall be deemed to mean
$15,000,000.00."
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2.2 Paragraph
1.2 of the Loan Agreement is hereby amended to read in its entirety as
follows:
“Availability
Period.
The line
of credit is available between the date of this Amendment and September 30,
2011, or such earlier date as the availability may terminate as provided in this
Agreement (the "Facility No. 1 Expiration Date").”
2.3 Subparagraph
1.4(a) of the Loan Agreement is hereby amended to read in its entirety as
follows:
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“The
interest rate is a rate per year equal to the Bank's Prime Rate plus zero
(0%) percentage points.”
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2.4 The
last sentence of Subparagraph 1.5(a) of the Loan Agreement is hereby amended to
read in its entirety as follows:
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“The
interest rate is a rate per year equal to the BBA LIBOR Rate (Adjusted
Periodically) plus one and three-quarters (1.75%) percentage
points.”
2.5 Subparagraph
3.1(c) of the Loan Agreement is hereby amended to read in its entirety as
follows:
“(c)
Unused Commitment
Fee. The Borrower agrees to pay a fee on any difference
between the Facility No. 1 Commitment and the amount of credit it actually uses,
determined by the average of the daily amount of credit outstanding during the
specified period. The fee will be calculated at one-quarter of one
(0.25%) percent per year. This fee is due on the final day of the
availability period.”
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2.6
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The
following Subparagraph 3.1(h) is hereby added to the Loan
Agreement:
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“(h)
Annual Facility No. 1
Increase and Renewal Fee. Borrower agrees to pay an annual
increase and renewal fee in the amount of Fifteen Thousand and No/100 Dollars
($15,000.00) in connection with the Facility No. 1 Commitment. The
first increase and renewal fee is due on the date of this Amendment and a second
$15,000 payment is due and payable one (1) year from the date of this
Amendment.”
2.7 The
final paragraph of Paragraph 8.14 is hereby amended to read in its entirety as
follows:
“Notwithstanding
subparagraphs (a) and (b), above, Borrower may enter into mergers and
acquisitions without the Bank’s prior written consent so long as (i) the
aggregate amounts of the same do not exceed the lesser of (Y) Fifteen Million
and No/100 Dollars ($15,000,000.00) in any single calendar year, or (Z) Fifty
Million and No/100 Dollars ($50,000,000.00) in the aggregate, and (ii) Borrower
is in compliance with the covenants contained in this Agreement, provided
that as of and on the date of the closing of any acquisition
or merger the ratio of Funded Debt to EBITDA may not then exceed 3.0:1.0, as
calculated by Bank. On any and all other dates during the
availability of this facility, Funded Debt to EBITDA shall be calculated at a
ratio not to exceed 3.5:1.0 as described in Paragraph 8.4 of the
Agreement.”
2.8 The
following Paragraph 8.27 is hereby added to the Loan Agreement:
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“Bank as Principal
Depository.
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On
or before December 31, 2009, Borrower shall have opened new accounts with
the Bank and have deposited a minimum of new funds in the amount of
$5,000,000.00. On or before September 30, 2010, Borrower shall
maintain the Bank as its principal domestic depository bank, including for
the maintenance of business, cash management, operating and administrative
deposit accounts. Borrower’s failure to (a) open $5,000,000.00
in new accounts with the Bank on or before December 31, 2009, or (b) move
all domestic deposits and accounts to the Bank on or before September 30,
2010 shall constitute a default under the Loan
Agreement.”
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3. Conditions. This Amendment is
effective as of September 30, 2009. On or before October 30, 2009,
Borrower will deliver to Bank the following items, in form and content
acceptable to the Bank:
3.1 Payment
by the Borrower of the $15,000.00 fee described in Paragraph 2.6
above.
3.2 Payment
by the Borrower of all costs, expenses and attorneys' fees incurred by the Bank
in connection with this Amendment.
4. Representations
and Warranties. When the Borrower
signs this Amendment, the Borrower represents and warrants to the Bank that: (a)
there is no event of default which is, or with notice or lapse of time or both
would be, a default under the Loan Documents except those events, if any, that
have been disclosed in writing to the Bank or waived in writing by the Bank; (b)
the representations and warranties in the Loan Documents are true as of the date
of this Amendment as if made on the date of this Amendment; (c) this Amendment
is within the Borrower’s powers, has been duly authorized, and does not conflict
with any of the Borrower’s organizational papers; (d) this Amendment does not
conflict with any law, agreement, or obligations by which the Borrower is bound;
and (e) if the Borrower is a business entity or a trust, this Amendment is
within the Borrower's powers, has been duly authorized, and does not conflict
with any of the Borrower's organizational papers.
5. Effect of
Amendment. Except as herein
expressly changed, all terms, covenants and provisions of the Loan Documents, as
amended, remain in full force and effect and are hereby expressly ratified and
confirmed by the parties hereto. Upon execution of this Amendment by any party,
such party's signature may be provided to Bank by facsimile
transmission. Any signatures provided by facsimile transmission shall
be deemed originals and may be relied upon by Bank.
6. Counterparts. This
Amendment may be executed in counterparts, each of which when so executed shall
be deemed an original, but all such counterparts together shall constitute but
one and the same instrument.
ORAL
AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON
LAW.
This Amendment is executed as of the
date stated at the top of the first page.
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BANK:
BANK OF AMERICA,
N.A.,
a
national banking association
By:
/s/ Xxxx X.
Xxxxxx
Its:
SVP
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BORROWER:
KEY
TECHNOLOGY, INC.,
an
Oregon corporation
By:
/s/ Xxxx X.
Xxxxx
Its:
CFO –Senior
VP
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Address
where notices to
the
Bank are to be sent:
GCIB
Credit Services
0000
Xxxx Xxxxxx, 0xx
Xxxxx
Xxxxxxx,
XX 00000
Facsimile:(000)000-0000
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Address
where notices to
the
Borrower are to be sent:
000
Xxxxx Xxxxxx
Xxxxx
Xxxxx, Xxxxxxxxxx 00000
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