EXHIBIT 10.26
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED
PARTICIPATION AGREEMENT AND OTHER OPERATIVE DOCUMENTS
AND TERMINATION OF CERTAIN OPERATIVE DOCUMENTS
This FIRST AMENDMENT TO SECOND AMENDED AND RESTATED PARTICIPATION
AGREEMENT AND OTHER OPERATIVE DOCUMENTS AND TERMINATION OF CERTAIN OPERATIVE
DOCUMENTS (this "Agreement"), dated as of May 30, 2001, is by and among ASYST
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TECHNOLOGIES, INC., a California corporation (together with its permitted
successors and assigns, the "Lessee"); LEASE PLAN NORTH AMERICA, INC., an
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Illinois corporation, as Lessor (together with its permitted successors and
assigns, the "Lessor") and as a Participant, ABN AMRO BANK N.V. and the Persons
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named on the signature pages hereto (together with their respective permitted
successors, assigns and transferees, each, a "Participant", and collectively,
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the "Participants") as Participants; and ABN AMRO BANK N.V., as Agent (in such
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capacity, together with its successors in such capacity, the "Agent") for the
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Participants. Capitalized terms used herein and not otherwise defined shall
have the meaning assigned such term in the Participation Agreement (as defined
below).
RECITALS:
A. The Lessor, the Lessee, the Agent and the Participants are parties to
that certain Second Amended and Restated Participation Agreement, dated as of
February 21, 2001 (as amended, restated, supplemented or otherwise modified from
time to time, the "Participation Agreement"); and
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B. Prior to the date hereof, the Lessee informed the Lessor and the Agent
that the Lessee had elected to not proceed with construction of the Improvements
on the Property; and
C. As of the date hereof, the Lessee has delivered to the Lessor a
Purchase Notice in respect of all of the Property in accordance with the
provisions of Section 20.1 of the Lease, pursuant to which the Lessee has
evidenced its election to purchase (or to cause its designee to purchase) all of
the Property on a date on or before December 31, 2001; and
D. In connection with the foregoing, the parties desire to amend certain
provisions of the Participation Agreement, the Lease and the Minimum Cash
Balance Collateral Agreement and desire to terminate the Construction Agency
Agreement, the Construction Agency Agreement Assignment and the Cash Collateral
Agreement, all on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the parties hereto agree as follows:
1. Amendments to Participation Agreement. Subject to the satisfaction of
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the conditions set forth in Section 9 below, the Participation Agreement is
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hereby amended as follows:
(a) The Participation Agreement is hereby amended by deleting Section
3.6(e) thereof in its entirety and inserting the following in substitution
therefor:
On the First Amendment Effective Date, the Participants'
Commitments shall be reduced automatically without any notice or other
action by the Lessee, the Lessor or any Participant hereunder, to be
equal to the then aggregate outstanding principal amount of the
respective Participant's Participation Interests as of such date.
Thereafter, on June 4, 2001, the Lessee shall pay to the Agent, on
behalf of the Lessor, the aggregate outstanding amount of the
Improvements Asset Termination Value as of such date (and the Agent
shall distribute such payment to the Improvements Participants in
accordance with Section 3.12(ii), as if such payment were a payment of
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the Improvements Asset Termination Value described in Section
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3.12(c)). On the date such payment is made (the "Improvements
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Prepayment Date"), the Participants' Commitments shall be further
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reduced automatically without any notice or other action by the
Lessee, the Lessor or any Participant hereunder, to be equal to the
then aggregate outstanding principal amount of the respective
Participant's Participation Interests after giving effect to such
payment of the Improvements Asset Termination Value on such
Improvements Prepayment Date.
(b) The Participation Agreement is hereby further amended by deleting
Section 3.7(f) in its entirety.
(c) Section 4.1 of the Participation Agreement is hereby amended by
deleting the phrase "to the earlier of (i) the Completion Date or (ii) the
Outside Completion Date" in the third line of said section and inserting the
phrase "to the First Amendment Effective Date" in substitution therefor.
(d) The Participation Agreement is hereby amended by deleting Section
8.4(b) thereof in its entirety and inserting the following in substitution
therefor:
The Property consists of the Land Interest and is located in
Fremont, California. The Property and the use thereof by the Lessee
and its agents, assignees, employees, invitees, lessees, licensees,
contractors and tenants, if any, complies in all material respects
with all Requirements of Law (including, without limitation, Title III
of the Americans with Disabilities Act, all zoning and land use laws,
all Environmental Laws and all building, planning, zoning and fire
codes), except for such Requirements of Law as the Lessee shall be
contesting in good faith by appropriate proceedings and in accordance
with the applicable provisions of the Lease, and complies with all
Insurance Requirements. There is no action, suit or proceeding
(including any proceeding in condemnation or eminent domain or under
any Environmental Law) pending or, to the best of the Lessee's
knowledge, threatened with respect to the Lessee, its Affiliates or
the Property which materially adversely affects the title to, or
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the use, operation or value of, the Property. Except as may be
disclosed to the Lessor and the Agent in writing in accordance with
Section 15.1(c) of the Lease, no fire or other casualty with respect
to the Property has occurred.
(e) The Participation Agreement is hereby amended by inserting the
following as the new last sentence of the preamble to Section 10.2:
Notwithstanding anything contained in the Operative Documents to
the contrary, the Lessee shall not be required to comply with the
provisions of Sections 10.2(a), (b), (c), (d) or (f) during the period
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from June 30, 2001 through December 31, 2001.
(f) The Participation Agreement is hereby amended by deleting Section
10.2(e) in its entirety and inserting the following in substitution therefor:
(e) Minimum Cash Balance. On the Improvements Closing Date, the
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Lessee established, and shall at all times thereafter during the Term
maintain, an account with LaSalle Bank N.A. (the "Minimum Cash Balance
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Account") into which the Lessee has deposited cash and/or Qualified
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Securities in an aggregate amount equal to $52,500,000 as of the First
Amendment Effective Date. Notwithstanding anything contained to the
contrary in the Operative Documents, in no event shall the Lessee
create, permit or suffer to exist any Liens on the Minimum Cash
Balance Collateral or the Minimum Cash Balance Account other than
those in favor of the Agent, for the benefit of the Participants, in
accordance with the terms hereof. On the Improvements Closing Date,
the Lessee executed and delivered a Minimum Cash Balance Collateral
Agreement in the form of Exhibit P hereto (the "Minimum Cash Balance
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Collateral Agreement"), and on the First Amendment Effective Date the
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Lessee shall grant a first priority perfected security interest in,
and Lien on, the Minimum Cash Balance Account and the Minimum Cash
Balance Collateral in favor of the Agent, for the benefit of the
Participants. On the Improvements Prepayment Date, the Lessee shall be
permitted to reduce the balance of the Minimum Cash Balance Collateral
Account to an aggregate of $43,050,000 (and the Agent shall cause
LaSalle Bank N.A. to return all funds on deposit therein in excess of
such amount to the Lessee on such date), and thereafter the Lessee
shall not be permitted to withdraw any amounts on deposit in the
Minimum Cash Balance Account at any time during the Term other than as
permitted in the Minimum Cash Balance Collateral Agreement.
(g) The Participation Agreement, including Schedule I thereto, is
hereby further amended by deleting the words "Completion Date" wherever they
appear (other than in Section 6.2(d), Section 7, or any other Section amended in
paragraphs (a) through (h) above), and inserting the words "First Amendment
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Effective Date" in substitution therefor.
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(h) Schedule IV to the Participation Agreement is hereby amended by
deleting the columns headed "Cash Collateralized Applicable Margin Tranche A and
Tranche B Advances" and "Cash Collateralized Applicable Margin Tranche C
Advances" in their entirety.
2. Amendments to Appendix 1. Subject to the satisfaction of the
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conditions set forth in Section 9 below, Appendix 1 to the Participation
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Agreement is hereby amended as follows:
(a) Appendix 1 to the Participation Agreement is hereby amended by
deleting the defined term "Commitment Fee Payment Date" in its entirety and
inserting the following in substitution therefor:
"Commitment Fee Payment Date" means each March 31/st/, June
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30/th/, September 30/th/ and December 31/st/ of each year through the
First Amendment Effective Date and the First Amendment Effective Date.
(b) Appendix 1 to the Participation Agreement is hereby amended by
deleting the defined term "Commitment Period" in its entirety and inserting the
following in substitution therefor:
"Commitment Period" means the period from and including the
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Closing Date to but not including the First Amendment Effective Date.
(c) Appendix 1 to the Participation Agreement is hereby amended by
deleting the defined term "Construction Period" in its entirety and inserting
the following in substitution therefor:
"Construction Period" means, with respect to the Property, the
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period commencing on the Improvements Closing Date and ending on the
First Amendment Effective Date.
(d) Appendix 1 to the Participation Agreement is hereby amended by
inserting the defined terms "First Amendment" and "First Amendment Effective
Date" in proper alphabetical order as follows:
"First Amendment" means that certain First Amendment to Second
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Amended and Restated Participation Agreement and Other Operative
Documents and Termination of Certain Operative Documents dated as of
May __, 2001 by and among the Lessee, the Agent, the Lessor and the
Participants.
"First Amendment Effective Date" has the meaning ascribed to such
term in the First Amendment.
(e) Appendix 1 to the Participation Agreement is hereby amended by
inserting the defined term "Improvements Prepayment Date" in proper alphabetical
order as follows:
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"Improvements Prepayment Date" has the meaning ascribed to such
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term in Section 3.6(e) of the Participation Agreement.
(f) Appendix 1 to the Participation Agreement is hereby further
amended by deleting the words "Completion Date" wherever they appear in the
following defined terms and inserting the words "First Amendment Effective Date"
in substitution therefor: "Commitment Percentage"; "Improvements Residual Value
Guarantee Amount"; "Interest Payment Advance"; "Participation Interest";
"Prepaid Rent"; "Rent Commencement Date"; "Supplemental Rent"; "Tranche A
Participation Interest Commitment Percentage"; "Tranche B Participation Interest
Commitment Percentage"; and "Tranche C Equity Interest Commitment Percentage".
3. Amendments to Lease. Subject to the satisfaction of the conditions
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set forth in Section 9 below, the Lease is hereby amended as follows:
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(a) The Lease is hereby amended by deleting Section 10.1(d) in its
entirety.
(b) Section 17.1(a) of the Lease is hereby amended by (i) deleting
the semicolon at the end of such Section, and (ii) inserting a new clause (iii)
at the end of such section as follows:
or (iii) the aggregate outstanding amount of the Improvements
Asset Termination Value on or before June 4, 2001 as required by
Section 3.6(e) of the Participation Agreement;
(c) Section 20.1 of the Lease is hereby amended by inserting the
following sentence as the new last sentence thereof:
Notwithstanding anything contained herein to the contrary, the
Lessee's election to exercise the Purchase Option shall not preclude
the Lessee from subsequently exercising the Partial Purchase Option in
accordance with the foregoing provisions of this Section 20.1, so long
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as the purchase of a portion of the Property pursuant to such Partial
Purchase Option occurs prior to the Lessee's (or its designee's)
purchase of all of the remaining Property. Upon such an exercise of
the Partial Purchase Option, the Lessee's exercise of the Purchase
Option shall be deemed to be amended so as to constitute an election
to purchase all of the Property remaining as of the date on which such
purchase pursuant to the Purchase Option is consummated.
(d) The Lease is hereby further amended by replacing the phrase
"Completion Date" with the phrase "First Amendment Effective Date" in each place
in which such phrase appears.
4. Amendments to Minimum Cash Balance Collateral Agreement. Subject to
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the satisfaction of the conditions set forth in Section 9 below, the Minimum
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Cash Balance Collateral Agreement is hereby amended as follows:
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(a) The Minimum Cash Balance Collateral Agreement is hereby amended
by deleting Recital C in its entirety and inserting the following in
substitution therefor:
Pursuant to Section 10.2(e) of the Participation Agreement,
on the Improvements Closing Date, the Lessee established, and
shall at all times thereafter during the Term maintain, an
account with LaSalle Bank N.A. The Lessee has deposited cash
and/or Qualified Securities in an aggregate amount equal to
$52,500,000 as of the First Amendment Effective Date. The Lessee
is further required, on the First Amendment Effective Date, to
grant first priority perfected Liens on such account and all
amounts on deposit or to be deposited therein to the Agent, for
the benefit of the Lessor Parties. This Agreement sets forth the
terms and conditions governing such account and all amounts on
deposit or to be deposited therein and the granting of such Liens.
(b) The Minimum Cash Balance Collateral Agreement is hereby amended
by deleting the defined term "Required Cash Balance Amount" in its entirety and
inserting the following in substitution therefor:
"Required Cash Balance Amount" means (a) at any time prior to
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the Improvements Prepayment Date, $52,500,000, and (b) from and
after the Improvements Prepayment Date, $43,050,000.
(c) The Minimum Cash Balance Collateral Agreement is hereby amended
by deleting the defined term "Security Interest Grant Date" in its entirety and
inserting the following in substitution therefor:
"Security Interest Grant Date" means the First Amendment
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Effective Date.
(d) The Minimum Cash Balance Collateral Agreement is hereby amended
by deleting the first and second sentences of Section 2.3 in their entirety and
inserting the following in substitution therefor:
As of the First Amendment Effective Date, the Lessee has
deposited cash and/or Qualified Securities in an aggregate amount
equal to $52,500,000 (determined based on the Value as of each
relevant deposit date (each a "Deposit Date") of all Qualified
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Securities so delivered as of such date). The parties acknowledge
that no Minimum Cash Balance Collateral was previously delivered
to the Depositary Bank prior to the Improvements Closing Date and
that all cash and Qualified Securities delivered hereunder have
been or will be delivered pursuant to Section 10.2(e) of the
Participation Agreement, this Section 2.3 and the Control
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Agreement.
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(e) Section 2.4 of the Minimum Cash Balance Collateral Agreement is
hereby amended by inserting the following as the new last sentence of the first
paragraph of such Section:
Without limitation of the foregoing, on the Improvements
Prepayment Date and assuming the prior satisfaction of the
conditions precedent to the First Amendment, the Agent shall
cause the Depositary Bank to return to the Lessee all Minimum
Cash Balance Collateral in excess of the Required Cash Balance
Amount as of such date, subject only to confirmation of the Value
of the remaining Minimum Cash Balance Collateral in accordance
with the foregoing.
(f) The Minimum Cash Balance Collateral Agreement is hereby amended
by deleting clause (i) of the first sentence of the second paragraph of Section
2.4 in its entirety and inserting the following in substitution therefor:
(i) if the Lessee so directs, in connection with the
payment of the Land Interest Residual Value Guarantee Amount or
the Improvement Residual Value Guarantee Amount pursuant to
Section 22.1 of the Lease or a purchase by the Lessee of the
Property or portion thereof pursuant to any of Sections 16.2,
16.3, 20.1, 20.2 or 20.3 of the Lease (provided that the Lessee
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shall be deemed to have so directed in the case of payment of the
Purchase Option Price pursuant to the Purchase Notice delivered
as of the First Amendment Effective Date) or
5. Termination of Certain Operative Documents. Subject to the
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satisfaction of the conditions set forth in Section 9 below, as of the First
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Amendment Effective Date, each of the Construction Agency Agreement, the
Construction Agency Agreement Assignment and the Cash Collateral Agreement shall
be terminated and of no further force and effect.
6. Waiver. The Lessee has advised the Lessor, the Agent and the
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Participants that the Lessee has determined to not proceed with the construction
of the Improvements at the Property. Failure to commence construction of the
Improvements on or before May 21, 2001 constitutes a Construction Agency
Agreement Event of Default under Section 5.1(b) of the Construction Agency
Agreement. Subject to the satisfaction of the conditions set forth in Section 9
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below, the Lessor, the Agent and the Participants hereby agree to waive such
Construction Agency Agreement Event of Default.
7. Representation and Warranties. Lessee hereby represents and warrants
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to the Lessor, the Agent and the Participants that the following are true and
correct on the date of this Agreement and that, after giving effect to the
amendments and waiver set forth above, the following will be true and correct on
the First Amendment Effective Date (as defined below):
(a) The representations and warranties of Lessee set forth in Section
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8.3 of the Participation Agreement and in the other Operative Documents are true
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and correct in all material respects as if made on such date (except for
representations and warranties expressly made as of a specified date, which
shall be true as of such date);
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(b) No Default or Event of Default has occurred and is continuing;
and
(c) Except as otherwise expressly set forth in Section 5 of this
Agreement, each of the Operative Documents is in full force and effect.
(Without limiting the scope of the term "Operative Documents," Lessee
expressly acknowledges in making the representations and warranties set forth in
this Section 7 that, on and after the date hereof, such term includes this
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Agreement.)
8. First Amendment Effective Date. The amendments and waiver effected
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above shall become effective as of May __, 2001 (the "First Amendment Effective
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Date"), subject to satisfaction of each of the following conditions precedent:
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(a) receipt by McGuireWoods LLP, counsel to the Agent, of a copy of
this Agreement duly executed by Lessee, the Lessor, the Agent and the
Participants;
(b) receipt by the Lessor of a Purchase Notice setting forth the
Lessee's irrevocable election to exercise the Purchase Option in respect of all
of the Property on a purchase date to occur on or before December 31, 2001, for
a Purchase Option Price equal to the Asset Termination Value in respect of all
of the Property as of such purchase date, and otherwise in accordance with the
provisions of the Lease and the other Operative Documents;
(c) receipt by the Agent or its counsel of all documents, instruments
or agreements necessary to cause the Lien of the Agent on the Minimum Cash
Balance Collateral to be fully perfected as of the First Amendment Effective
Date; and
(d) Lessee agrees to pay all costs and expenses incurred by the Agent
and the Lessor in connection with this Agreement, and without limitation of the
foregoing agrees on the First Amendment Effective Date to pay all invoiced and
outstanding Transaction Expenses of the Agent or the Lessor.
9. Miscellaneous.
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(a) Except as specifically amended, waived or terminated above, the
Participation Agreement and each of the Schedules, Exhibits and Appendices
thereto, and each of the other Operative Documents, shall remain in full force
and effect and each such Operative Document (excluding those expressly
terminated hereunder), as modified by this Agreement, is hereby ratified and
confirmed in all respects. The waiver contained herein is only effective as to
this Agreement and not for any other purpose.
(b) Upon the effectiveness of this Agreement each reference in (i)
the Participation Agreement, the Lease or the Minimum Cash Balance Collateral
Agreement to "this Agreement," "hereunder," "hereof," or words of similar import
and (ii) any other Operative Document to "the Participation Agreement", "the
Lease" or "the Minimum Cash Balance Collateral Agreement" shall, in each case,
mean and be a reference to such Operative Document as amended hereby.
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(c) Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
(d) This Agreement may be executed in any number of separate
counterparts, each of which shall collectively and separately constitute one
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
10. GOVERNING LAW. THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY
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THE LAWS OF THE STATE OF CALIFORNIA (EXCLUDING ANY CONFLICT OF LAW OR CHOICE OF
LAW RULES WHICH MIGHT LEAD TO THE APPLICATION OF THE INTERNAL LAWS OF ANY OTHER
JURISDICTION) AS TO ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be duly
executed and delivered by its proper and duly authorized officer as of the date
first written above.
ASYST TECHNOLOGIES, INC., as Lessee
By: /s/ Douglas J. McCutcheon
Name: Douglas J. McCutcheon
Title:Senior Vice President, Chief
Financial Officer
LEASE PLAN NORTH AMERICA, INC., as Lessor
and as a Participant
By: /s/ Elizabeth R. McClellan
Name: Elizabeth R. McClellan
Title: Vice President
ABN AMRO BANK N.V., as Agent and as
a Participant
By: /s/ Joseph Endoso
Name: Joseph Endoso
Title: Senior Vice President
By: /s/ Ruby R. Galang
Name: Ruby R. Galang
Title: Vice President
FLEET NATIONAL BANK, as a Participant
By: /s/ Lee A. Merkle-Raymond
Name: Lee A. Merkle-Raymond
Title: Director
WELLS FARGO BANK, N.A., as a Participant
By: /s/ Patty Juarez
Name: Patty Juarez
Title: Vice President
COMERICA BANK - CALIFORNIA, as a
Participant
By: /s/ Robert Schutt
Name: Robert Schutt
Title: Vice President
KEYBANK NATIONAL ASSOCIATION, as a
Participant
By: /s/ Julien Michaels
Name: Julien Michaels
Title: Vice President