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Exhibit 10.44
EXECUTION VERSION
SECOND AMENDMENT AND WAIVER
TO CREDIT AGREEMENT
THIS
SECOND AMENDMENT AND WAIVER TO CREDIT AGREEMENT, dated as of
November 13, 2006 (this " Amendment "), to the Existing
Credit Agreement (as defined below) is made by ASYST TECHNOLOGIES,
INC., a California corporation, and ASYST JAPAN, INC., a Japanese
corporation (collectively, the " Borrowers "), and certain
of the Lenders (such capitalized term and other capitalized terms
used in this preamble and the recitals below to have the meanings
set forth in, or are defined by reference in, Article I
below).
W I T N E S S E T H:
WHEREAS,
the Borrowers, the Lenders and Bank of America, N.A., as
Administrative Agent, are all parties to the Credit Agreement,
dated as of June 22, 2006 (as amended or otherwise modified
prior to the date hereof, the " Existing Credit Agreement ",
and as amended by this Amendment and as the same may be further
amended, supplemented, amended and restated or otherwise modified
from time to time, the " Credit Agreement "); and
WHEREAS,
the Borrowers have requested that the Lenders amend certain
provisions of the Existing Credit Agreement and the Lenders are
willing, on the terms and subject to the conditions hereinafter set
forth, to modify the Existing Credit Agreement as set forth
below;
NOW,
THEREFORE, the parties hereto hereby covenant and agree as
follows:
ARTICLE I
DEFINITIONS
SECTION
1.1. Certain Definitions . The following terms when used in
this Amendment shall have the following meanings (such meanings to
be equally applicable to the singular and plural forms
thereof):
"
Amendment " is defined in the preamble .
"
Amendment Effective Date " is defined in
Article IV .
"
Borrowers " is defined in the preamble .
"
Credit Agreement " is defined in the first recital
.
"
Existing Credit Agreement " is defined in the first
recital .
SECTION
1.2. Other Definitions . Terms for which meanings are
provided in the Credit Agreement are, unless otherwise defined
herein or the context otherwise requires, used in this Amendment
with such meanings.
ARTICLE II
AMENDMENTS TO CREDIT AGREEMENT
Subject
to the occurrence of the Amendment Effective Date, the provisions
of the Existing Credit Agreement referred to below are hereby
amended in accordance with this Article II .
SECTION
2.1. Amendments to Section 1.01 . Section 1.01 of
the Existing Credit Agreement is hereby amended as follows:
(a)
The definition of "Consolidated EBITDA" is hereby amended by
deleting the word "and" occurring immediately prior to clause
(a)(iv) of such definition, inserting "," in place thereof and
inserting the text "and (v) any non-cash charges in respect of
the Acquisition as a result of the application of FASB 141"
immediately following clause (a)(iii) of such definition.
(b)
The definition of "Excluded Accounts" is hereby amended in its
entirety to read as follows:
" Excluded Accounts "
means, collectively, Accounts of the Company and its Subsidiaries,
other than (a) Accounts held at Bank of America or any other
Secured Party, (b) Accounts, either individually or in the
aggregate with all such other Accounts (other than Accounts
maintained by ASI and its Subsidiaries), with an aggregate average
monthly balance (at any time of determination) of less than
$1,000,000 and (c) solely with respect to ASI and its
Subsidiaries, (i) Accounts that are solely used for payroll,
(ii) Accounts that are solely used for factoring arrangements
and that are not drawn upon by any Loan Party and
(iii) deposit or credit Accounts maintained with a bank or
other financial institution which has a line of credit commitment
to ASI to the extent such Accounts, either individually or in the
aggregate with all such other Accounts, have an aggregate average
monthly balance (at any time of determination) of less than
$5,000,000.
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ARTICLE III
WAIVERS
Subject
to the occurrence of the Amendment Effective Date, the Lenders
hereby waive:
(a)
Until December 29, 2006, compliance by Asyst Shinko Taiwan,
Inc. (" ASTI ") with the requirement to execute and deliver
a guaranty or guaranty supplement under which ASTI will guarantee
the obligations of the Loan Parties under the Loan Documents,
together with related Organization Documents, resolutions of the
board of directors or other managing body of ASI or other
satisfactory evidence of authorization (including board minutes) by
such managing body, certificates and legal opinions, in each case
pursuant to Section 6.13 of the Credit Agreement.
(b)
Until December 29, 2006, compliance by Asyst Shinko Korea,
Inc. (" ASKI ") with the requirement to execute and deliver
a guaranty or guaranty supplement under which ASKI will guarantee
the obligations of the Loan Parties under the Loan Documents,
together with related Organization Documents, resolutions of the
board of directors or other managing body of ASI or other
satisfactory evidence of authorization (including board minutes) by
such managing body, certificates and legal opinions, in each case
pursuant to Section 6.13 of
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