April 23, 2014 Mattson Technology, Inc. 47131 Bayside Parkway Fremont, CA 94538 Attn: Michael Dodson
EXHIBIT 10.1
April 23, 2014
▇▇▇▇▇▇▇ Technology, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Re: | Waiver and Amendment Agreement (this “Letter Agreement”) relating to that certain Credit Agreement, dated as of April 12, 2013, among ▇▇▇▇▇▇▇ Technology, Inc., a Delaware corporation (the “Borrower”), the Lenders named therein as parties thereto, and Silicon Valley Bank, a California corporation, in its capacity as administrative agent for such Lenders (in such capacity, the “Administrative Agent”) (as amended prior to the date hereof, the “Credit Agreement”, the terms defined therein and not otherwise defined herein being used herein as therein defined). |
Dear ▇▇. ▇▇▇▇▇▇:
An Event of Default has occurred under Section 8.1(c) of the Credit Agreement solely as a result of the breach by the Borrower of the minimum Consolidated Quick Ratio covenant set forth in Section 7.1(a) of the Credit Agreement with respect to the covenant test date thereunder that occurred on January 31, 2014 (such Event of Default, the “Specified Event of Default”). The Borrower has requested that the Administrative Agent and Silicon Valley Bank, a California corporation, as the current sole Lender under the Credit Agreement, waive the Specified Event of Default for all purposes under the Credit Agreement, and the Administrative Agent and such sole Lender have agreed to provide such waiver with effect from and after the Effective Date (defined below) and upon the terms and conditions set forth herein.
The Borrower has also requested that the Administrative Agent and the sole Lender agree to amend the Credit Agreement in the manner specified herein. The Administrative Agent and the sole Lender have agreed to so amend the Credit Agreement, subject to the terms and conditions set forth herein.
Accordingly, subject to the satisfaction of the conditions to effectiveness described in Section 4 hereof, the parties hereto hereby agree as follows:
1. Waiver. Notwithstanding anything to the contrary set forth in the Credit Agreement or the other Loan Documents, and subject to the satisfaction of the conditions to effectiveness specified in Section 4 hereof, the Administrative Agent and the sole Lender hereby waive the Specified Event of Default for all purposes under the Credit Agreement as of the Effective Date.
2. Amendments to Credit Agreement. With effect from and after the Effective Date, the Credit Agreement shall be amended as follows:
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(a) Section 6.1(c) of the Credit Agreement shall be amended and restated to read in its entirety as follows:
(c) as soon as available, but in any event not later than 30 days after the end of each month occurring during each fiscal year of the Borrower (other than the third, sixth, ninth and twelfth such months), the unaudited consolidated and consolidating balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such month and the related unaudited consolidated and consolidating statement of income for such month and the portion of the fiscal year through the end of such month, setting forth in each case in comparative form the figures for the previous year, certified by a Responsible Officer of the Borrower as being fairly stated in all material respects (subject to normal year-end audit adjustments); provided that, notwithstanding the foregoing or anything to the contrary set forth in Section 6.2, no such monthly financial statements in respect of any months other than the third, sixth, ninth and twelfth months of any fiscal year of the Borrower shall be required to be delivered by the Borrower at any time during which no Revolving Loans or Letters of Credit are outstanding.
(b) Section 6.2(b) of the Credit Agreement shall be amended and restated to read in its entirety as follows:
(b) (i) concurrently with the delivery of any financial statements pursuant to Section 6.1, (A) a certificate of a Responsible Officer stating that, to the best of such Responsible Officer’s knowledge, each Loan Party during such period has observed or performed all of its covenants and other agreements, and satisfied every condition contained in this Agreement and the other Loan Documents to which it is a party to be observed, performed or satisfied by it, and that such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate and (B) a Compliance Certificate containing all information and calculations necessary for determining compliance by each Group Member with the provisions of this Agreement referred to therein as of the last day of the month, fiscal quarter or fiscal year of the Borrower, as the case may be, and (ii) by no later than the date occurring 30 days after the end of each month, and to the extent not previously disclosed in writing to the Administrative Agent, (x) a list of any registered Intellectual Property issued to or acquired by any Loan Party during such month, and (y) a description of any change in the jurisdiction of organization of any Loan Party having occurred during such month;
(c) Section 6.2(g) of the Credit Agreement shall be amended and restated to read in its entirety as follows:
(g) as applicable, (i) concurrently with the delivery of any of the financial statements referred to in Section 6.1, (ii) not later than three days after the end of each week at all times during the existence of a Liquidity Event, (iii) prior to any borrowing of Revolving Loans to the extent the following reports were not delivered with respect to the prior month or week, as applicable, pursuant to any of the foregoing clauses (i) and (ii) of this subsection (g), and (iv) at any other time reasonably requested by the Administrative Agent: (A) a Borrowing Base Certificate accompanied by such supporting detail and documentation as shall be requested by the Administrative Agent in its reasonable discretion, (B) accounts receivable agings, aged by invoice date, (C) accounts payable agings, aged by invoice date, and outstanding or held check registers, if any, (D) a Deferred Revenue schedule, and (E)
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reconciliations of accounts receivable agings (aged by invoice date), transactions reports and general ledger;
(c) Section 6.2(h) of the Credit Agreement shall be amended and restated to read in its entirety as follows:
(h) by no later than 30 days after the end of each fiscal quarter of the Borrower occurring at any time during which no Revolving Loans or Letters of Credit are outstanding (or, as applicable, by no later than 30 days after the end of each month occurring at any time during which there are any Revolving Loans or Letters of Credit outstanding) and at any other time reasonably requested by the Administrative Agent, (i) a Liquidity Report specifying Liquidity as of, as applicable, the last day of such month, the last day of such fiscal quarter or the date specified by the Administrative Agent when such Liquidity Report is to be delivered pursuant to the request of the Administrative Agent at any such other time, and (ii) a report, in form and substance reasonably satisfactory to the Administrative Agent, indicating the amounts of cash, Cash Equivalents and Investment Property, as applicable, maintained in each Deposit Account and Securities Account of any Loan Party, which Deposit Accounts or Securities Accounts, as applicable, are maintained at any bank or other institution other than SVB as of, as applicable, the last day of such month, the last day of such fiscal quarter or the date specified by the Administrative Agent when such report is to be delivered pursuant to the request of the Administrative Agent at any such other time;
(d) Section 6.2(j) of the Credit Agreement shall be amended and restated to read in its entirety as follows:
(j) by no later than five Business Days after the end of each fiscal quarter of the Borrower occurring at any time during which no Revolving Loans or Letters of Credit are outstanding (or, as applicable, by no later than five Business Days after the end of each month occurring at any time during which there are any Revolving Loans or Letters of Credit outstanding) and at any other time reasonably requested by the Administrative Agent, a report, in form and substance reasonably satisfactory to the Administrative Agent, describing in reasonable detail the cash balances held as of, as applicable, the last day of such month, the last day of such fiscal quarter or the date specified by the Administrative Agent when such report is to be delivered pursuant to the request of the Administrative Agent at any such other time, by each Subsidiary of the Borrower that is not a Loan Party;
(e) Section 7.1(a) of the Credit Agreement shall be amended and restated to read in its entirety as follows:
(a)Minimum Consolidated Quick Ratio. Permit the Consolidated Quick Ratio, determined as at the last day of any fiscal quarter specified below, to be less than the ratio set forth below opposite such fiscal quarter:
Fiscal Quarter Ending | Consolidated Quick Ratio |
June 30, 2014 | 1.00:1.00 |
September 30, 2014 | 1.00:1.00 |
December 31, 2014 | 1.00:1.00 |
March 31, 2015 and Thereafter | 1.25:1.00 |
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(f) the form of Compliance Certificate set forth at Exhibit B to the Credit Agreement shall be amended and restated in the form set forth as Exhibit B to this Letter Agreement.
3. Representations and Warranties. In order to induce the Administrative Agent and the sole Lender to provide the waiver specified in Section 1 hereof and to amend the Credit Agreement in the manner specified in Section 2 hereof, the Borrower represents and warrants to the Administrative Agent and the sole Lender that:
(a) no Default or Event of Default (other than the Specified Event of Default) exists immediately before or immediately after giving effect to the waiver contemplated in Section 1 above;
(b) the execution, delivery and performance by the Borrower of this Letter Agreement have been duly authorized by all necessary corporate or other action on the part of the Borrower and do not and will not require any registration with, consent or approval of, or notice to or action by, any Person (including any Governmental Authority) in order to be effective and enforceable;
(c) this Letter Agreement and the other Loan Documents constitute the legal, valid and binding obligations of the Borrower and each other Loan Party party hereto or thereto, and are enforceable against each such Person in accordance with their respective terms, without defense, counterclaim or offset; and
(d) each of the representations and warranties made by each Loan Party in or pursuant to any Loan Document (i) that is qualified by materiality shall be true and correct, and (ii) that is not qualified by materiality, shall be true and correct in all material respects, in each case, on and as of the date hereof, except to the extent that any such representation and warranty specifically relates to an earlier date, in which case such representation and warranty shall have been true and correct in all material respects as of such earlier date.
4. Conditions to Effectiveness. This Letter Agreement shall become effective as of the date (the “Effective Date”) upon which each of the following conditions precedent is satisfied:
(a) the Administrative Agent shall have received from the Borrower and the Required Lenders duly executed original (or, if elected by the Administrative Agent, executed facsimiles followed promptly by executed originals) counterparts of this Letter Agreement;
(b) the Administrative Agent shall have received from the Guarantor party thereto a duly executed original of the Guarantor Acknowledgment and Consent attached hereto as Exhibit A;
(c) the Borrower shall have paid to the Administrative Agent, in immediately available funds, a waiver and loan modification fee in the amount of $12,500; and
(d) the Borrower shall have paid, in accordance with Section 10.5 of the Credit Agreement and Section 10 hereof, all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent (including the reasonable and documented fees and disbursements of outside counsel to the Administrative Agent) which have been invoiced to the Borrower prior to the Effective Date.
5. Reservation. The Borrower acknowledges and agrees that neither the execution nor the delivery by the Administrative Agent or the Required Lenders of this Letter Agreement shall (a) be deemed to create a course of dealing or otherwise obligate the Administrative Agent or any Lender to grant similar waivers or other modifications of the terms of the Credit Agreement under the same or similar circumstances in the future, or (b) be deemed to create an implied waiver of any right or remedy of the Administrative Agent or the sole
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Lender with respect to any term or provision of any Loan Document (including any term or provision relating to the occurrence of a Material Adverse Effect).
6. Governing Law. THIS LETTER AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA. This Letter Agreement is subject to the provisions of Section 10.14 of the Credit Agreement relating to jurisdiction, venue, jury trial waiver and judicial reference, which provisions are by this reference incorporated herein, mutatis mutandis, as if set forth herein in full.
7. Successors and Assigns. This Letter Agreement shall be binding upon and inure to the benefit of the parties hereto and to the benefit of their respective successors and assigns. No third party beneficiaries are intended in connection with this Letter Agreement.
8. Entire Agreement; Amendments. This Letter Agreement, together with the Credit Agreement and the other Loan Documents, contains the entire and exclusive agreement of the parties hereto with reference to the matters discussed herein and therein. This Letter Agreement supersedes all prior drafts and communications with respect hereto and may not be amended except in accordance with the provisions of Section 10.1 of the Credit Agreement.
9. Severability. If any term or provision of this Letter Agreement shall be deemed prohibited by or invalid under any applicable law, such provision shall be invalidated without affecting the remaining provisions of this Letter Agreement, respectively.
10. Reimbursement of Costs and Expenses. The Borrower covenants, in accordance with Section 10.5 of the Credit Agreement, to pay or reimburse the Administrative Agent, upon demand, for all reasonable and documented costs and expenses incurred by the Administrative Agent in connection with the development, preparation, negotiation, execution and delivery of this Letter Agreement.
11. Counterparts. This Letter Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts together shall constitute but one agreement.
12. Loan Document. This Letter Agreement shall constitute a Loan Document.
(Remainder of page intentionally left blank; signature page follows)Signature Page to Waiver and
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Please indicate your acknowledgement of and agreement with the terms and provisions set forth in this Letter Agreement by countersigning and returning two originally-executed counterpart signature pages hereto to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ at ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Very truly yours,
SILICON VALLEY BANK, as
Administrative Agent and sole Lender
By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
Title: | Vice President | |
ACKNOWLEDGED AND AGREED:
▇▇▇▇▇▇▇ TECHNOLOGY, INC., as
the Borrower
By: | /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
Name: | J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
Title: | Chief Operating Officer and Chief Financial Officer | |