Exhibit 10.22










 

Exhibit
10.22

 

SECOND
AMENDMENT TO LOAN AGREEMENT

 

THIS
SECOND AMENDMENT TO LOAN AGREEMENT (the “Amendment”)
is made as of the 31
th
day of March, 2005, by and between KEY TECHNOLOGY, INC., an Oregon corporation
(the “Borrower”),
and BANNER BANK, a Washington banking corporation (the “Lender”).

 

RECITALS

 

A. Borrower
and Lender are parties to that certain Loan Agreement dated as of August 9,
2002 as amended by that certain Amendment to Loan Documents dated as of
December 11, 2002, by that certain Letter Agreement dated March 24,
2003, by that certain Change In Terms Agreement dated May 1, 2003, by that
certain Amendment to Loan Documents dated July 31, 2003, by that certain
Letter Agreement dated July 26, 2004 and by that certain Letter Agreement
dated December 7, 2004 (as the same may be amended, modified or extended
from time to time the “Loan
Agreement”)
and the related Loan Documents described therein.

 

B. Pursuant
to the terms of the Loan Agreement, Lender made non-revolving loans to Borrower
under a reducing non-revolving credit facility (the “Reducing
Non-Revolving Loans”),
which non-revolving credit facility has expired and Borrower has repaid the
Reducing Non-Revolving Loans.

 

C. The
revolving credit facility under the Loan Agreement is currently scheduled to
expire on April 10, 2005, and Borrower has requested Lender to extend the
expiration date of such revolving credit facility until April 10, 2006, and
to make certain other modifications to the Loan Agreement which Lender has
agreed to do, subject to, among other things, the execution and delivery of this
Amendment.

 

NOW,
THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration receipt of which is hereby acknowledged, Borrower and Lender
hereby agree as follows:

 

AGREEMENT

 

1. Definitions;
Interpretation.
Capitalized terms used herein and not otherwise defined shall have the meaning
given in the Loan Agreement. The rules of construction and interpretation
specified in Section 1.2
and Section 1.4
of the Loan Agreement also apply to this Amendment and are incorporated herein
by this reference.

 

2. Amendments
to Loan Agreement.
The Loan Agreement is amended as follows:

 

(a) Amendment
to Definitions.
In Section 1.1,
amendments are made to the definitions as follows:

 

(i) Business
Day.
The definition of “Business Day” is amended and restated to read as
follows:

 

“Business
Day”
means any day other than Saturday, Sunday or other day on which banks are
authorized or obligated to close in Walla Walla, Washington, except that in the
context of the selection of a Loan accruing interest at the Revolving LIBOR Rate
or the calculation of the Revolving LIBOR Rate for any Interest Period, in which
event “Business Day” means any day, other than Saturday or Sunday, on which
dealings in foreign currencies and exchange between banks may be carried on in
London, England and Walla Walla, Washington.

 

(ii) Eurodollar
Reserves.
The definition of “Eurodollar Reserves” is added to read as
follows:

 



SEA
1524722v5 58243-2



1












 

“Eurodollar
Reserves”
means a fraction (expressed as a decimal), the numerator of which is the number
one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including, without limitation, any special,
supplemental, marginal or emergency reserves) expressed as a decimal established
by the Board of Governors of the Federal Reserve System or any other banking
authority to which Lender is subject for Eurocurrency Liability (as defined in
Regulation D of such Board of Governors). It is agreed that for purposes hereof,
each Revolving Loan accruing interest at the Revolving LIBOR Rate shall be
deemed to constitute a Eurocurrency Liability and to be subject to the reserve
requirements of Regulation D, without benefit of credit or proration, exemptions
or offsets which might otherwise be available to Lender from time to time under
such Regulation D. Eurodollar Reserves shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage and shall apply to
Interest Periods commencing after the effective date of change.

 

(iii) Interest
Period.
The definition of “Interest Period” is added to read as follows:

 

“Interest
Period”
means, with respect to any LIBOR Rate Loan, the period commencing on the first
day Borrower elects to have such LIBOR Rate apply to such Loan and ending three
(3) months thereafter, as specified in the Interest Rate Notice given in respect
of such Loan, or as otherwise determined pursuant to Section 2.4(b);
provided,
however,
that no Interest Period may be selected for any Loan if it extends beyond the
Revolving Maturity Date.

 

(iv) Interest
Rate Notice.
The definition of “Interest Rate Notice” is added to read as
follows:

 

“Interest
Rate Notice”
has the meaning given in Section 2.4(b).

 

(v) LIBOR
Rate.
The definition of “LIBOR Rate” is added to read as follows:

 

“LIBOR
Rate”
means, for any Interest Period, an interest rate per annum equal to the product
of (i) the Eurodollar Rate in effect for any Interest Period and
(ii) the Eurodollar Reserves in effect on the first day of such Interest
Period. The “Eurodollar Rate” will be determined by reference to that rate which
appears on the display designated as “Page 3750” on the Telerate Service (or on
such other page on that service or such other service designated by the British
Banker’s Association for the display of that Association’s Interest Settlement
Rates for U.S. Dollar deposits) as of 11:00 a.m. (London time), on the day that
is two (2) Business Days prior to the first date of the proposed Interest
Period. If there are no applicable quotes available through Telerate Service,
the Eurodollar Rate will be determined by reference to that rate appearing on
the Reuters Screen LIBO Page as of 11:00 a.m. (London time), on the day that is
two (2) Business Days prior to the first date of the proposed Interest Period.
If more than one such rate appears on the display, the rate will be the
arithmetic mean of such rates. If there is no period equal to the Interest
Period on the display, the LIBOR Rate shall be determined by straight-line
interpolation to the nearest month (or week or day if expressed in weeks or
days) corresponding to the Interest Period between the two (2) nearest
neighboring periods on the display. Rounding, if necessary, shall be to the
nearest one-one hundred thousandth of one percent (.00001%). If there are no
applicable quotes available through Telerate Service or on the Reuters Screen
LIBO Page, then the Revolving LIBOR Rate shall be deemed unavailable as provided
in Section 2.4(d).

 

(vi) LIBOR
Rate Loan.
The definition of “LIBOR Rate Loan” is added to read as follows:

 

“LIBOR
Rate Loan”
means any Revolving Loan (or portion thereof) bearing interest at the Revolving
LIBOR Rate.

 



SEA
1524722v5 58243-2



2












 

(vi) Prime
Rate Loan.
The definition of “Prime Rate Loan” is added to read as follows:

 

“Prime
Rate Loan”
means any Revolving Loan (or portion thereof) bearing interest at the Revolving
Prime Rate and the Term Loan.

 

(vii) Revolving
Interest Rate.
The definition of “Revolving Interest Rate” is added to read as
follows:

 

“Revolving
Interest Rate”
means for each Revolving Loan (or portion of thereof) (i) the Prime Rate
minus
one and one half percent (1.50%) or (ii) the LIBOR Rate plus
one and one tenth percent (1.10%), in each case as designated by Borrower in an
Interest Rate Notice given with respect to such Revolving Loan (or portion
thereof) or as otherwise determined pursuant to Section 2.4(b).

 

(viii) Revolving
LIBOR Rate.
The definition of “Revolving LIBOR Rate” is added to read as
follows:

 

“Revolving
LIBOR Rate”
has the meaning given in Section 2.4(b).

 

(ix) Revolving
Prime Rate.
The definition of “Revolving Prime Rate” is added to read as
follows:

 

“Revolving
Prime Rate”
has the meaning given in Section 2.4(b).

 

(x) Revolving
Maturity Date.
The definition of “Revolving Maturity Date” is amended and restated to read as
follows:

 

“Revolving
Maturity Date”
means April 10, 2006.

 

(b) Amendments
to Section 2.4. Section 2.4
is amended and restated to read as follows:

 

Section
2.4 Interest
on Loans.

 

(a) General
Provisions.
Borrower agrees to pay to Lender interest on the unpaid principal amount of each
Loan from the date of such Loan until such Loan shall be due and payable at a
per annum rate as follows: (i) for each Revolving Loan interest shall
accrue at a per annum rate equal to the Revolving Interest Rate in effect from
time to time with respect to such Revolving Loan (or portions thereof) and
(ii) for the Term Loan interest shall accrue at a per annum rate equal to
the Prime Rate (changing as such Prime Rate changes); provided,
however,
that after the occurrence and during the continuation of an Event of Default,
interest shall accrue at a per annum rate equal to three percent (3%) above the
Prime Rate (changing as such Prime Rate changes). Accrued but unpaid interest on
each Loan shall be paid in arrears as follows: (1) for each Revolving Loan
(or portion thereof) bearing interest at the Revolving Prime Rate, on the first
Business Day of each calendar month and at the Revolving Maturity Date,
(2) for each Revolving Loan (or portion thereof) bearing interest at the
Revolving LIBOR Rate, on the last day of the Interest Period and (3) for
the Term Loan, on the first Business Day of each February, May, August and
November and at the Term Loan Maturity Date. Accrued interest on any Loan shall
be payable on demand after the occurrence of an Event of Default.

 

(b) Selection
of Alternative Rates.

 

(i) Borrower
may, subject to the requirements of this Section 2.4(b),
on two (2) Business Days’ prior notice, elect to have interest accrue on any
Revolving Loan (or any

 



SEA
1524722v5 58243-2



3












 

portion
thereof) at the rate of interest set forth in clause (ii) of the definition of
Revolving Interest Rate (the “Revolving
LIBOR Rate”)
for an Interest Period. Such notice (herein, an “Interest
Rate Notice”)
shall be deemed delivered when received by Lender except that an Interest Rate
Notice received by Lender after 11:00 a.m. (Walla Walla time) on any Business
Day, shall be deemed to have been delivered or received on the immediately
succeeding Business Day. All Interest Rate Notices shall be in writing. Each
such Interest Rate Notice shall identify, subject to the conditions of this
Section 2.4(b),
the Revolving Loan or portions thereof to accrue interest at the Revolving LIBOR
Rate and the Interest Period which Borrower selects. Each such Interest Rate
Notice shall be irrevocable and shall constitute a representation and warranty
by Borrower that (1) as of the date of such Interest Rate Notice, the
representations and warranties set forth in Article 4
hereof are true and correct in all material respects (subject to any waivers of
the terms thereof then in effect in accordance with the terms of this Agreement)
as of the date of such Interest Rate Notice unless such representation and
warranty is made as of a specific date, and (2) no Default or Event of
Default has occurred and is continuing.

 

(ii) Borrower’s
right to select the Revolving LIBOR Rate to apply to a Revolving Loan (or any
portion thereof) shall be subject to the following conditions: (1) the
aggregate of all Revolving Loans of the same type or portions thereof to accrue
interest at a particular Revolving LIBOR Rate for the same Interest Period shall
be an integral multiple of Fifty Thousand Dollars ($50,000) and not less than
Two Hundred Fifty Thousand Dollars ($250,000); (2) the Revolving LIBOR Rate
may not be selected for any Revolving Loan (or portion thereof) which is already
accruing interest at the Revolving LIBOR Rate unless such selection is only to
become effective at the maturity of the Interest Period then in effect;
(3) Lender shall not have given notice pursuant to Section 2.4(e)
that the selected Revolving LIBOR Rate is not available; and (4) no Default
or Event of Default shall have occurred and be continuing.

 

(iii) In
the absence of an effective request and acceptance thereof for the application
of a Revolving LIBOR Rate, the Revolving Loans (or remaining portions thereof)
shall accrue interest at the rate of interest set forth in clause (i) of the
definition of Revolving Interest Rate (the “Revolving
Prime Rate”).
Any Interest Rate Notice which specifies an Revolving LIBOR Rate but fails to
identify an Interest Period shall be deemed to be a request for the designated
Revolving LIBOR Rate for an Interest Period of three (3) months.

 

(iv) The
Interest Rate Notice may be given with and contained in any Notice of
Borrowing.

 

(v) If
Borrower delivers an Interest Rate Notice with any Notice of Borrowing for a
LIBOR Rate Loan and Borrower thereafter declines to take such LIBOR Rate Loan or
a condition precedent to the making of such LIBOR Rate Loan is not satisfied or
waived, Borrower shall indemnify Lender for all losses and any costs which
Lender may sustain as a consequence thereof including, without limitation, the
costs of re-employment of funds at rates lower than the cost to Lender of such
funds. A certificate from Lender setting forth the amount due to it pursuant to
this subparagraph (v) and the basis for, and the calculation of, such
amount shall be, absent a showing by Borrower of manifest or demonstrable error,
conclusive evidence of the amount due to it hereunder. Payment of the amount
owed shall be due within fifteen (15) days after Borrower’s receipt of such
certificate.

 

(c) Applicable
Days for Computation of Interest.
Computations of interest on Prime Rate Loans shall be made on the basis of a
year of 365/366 days, for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest is
payable. All other computations of interest and all computations of fees shall
be made on the basis of a year of 360 days, for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or fees are payable.

 



SEA
1524722v5 58243-2



4












 

(d) Unavailable
LIBOR Rate.
If Lender determines that for any reason, fair and adequate means do not exist
for establishing a particular Revolving LIBOR Rate or that a Revolving LIBOR
Rate will not adequately and fairly reflect the cost to Lender of making or
maintaining the principal amount of a particular LIBOR Rate Loan or that
accruing interest on any LIBOR Rate Loan has become unlawful or is contrary to
any internal policies (of general application), Lender may give notice of that
fact to Borrower and such determination shall be conclusive and binding absent
manifest error. After such notice has been given and until Lender notifies
Borrower that the circumstances giving rise to such notice no longer exist, the
interest rate or rates so identified in such notice shall no longer be
available. Any subsequent request by Borrower to have interest accrue at such a
Revolving LIBOR Rate shall be deemed to be a request for interest to accrue at
the Revolving Prime Rate. If the circumstances giving rise to the notice
described herein no longer exist, Lender shall notify Borrower in writing of
that fact, and Borrower shall then once again become entitled to request that
such Revolving LIBOR Rates apply to the Revolving Loans in accordance with
Section 2.4(b).

 

(e) Compensation
for Increased Costs.
In the event that after the date hereof Lender shall determine in good faith
that a change has occurred in any applicable law, regulation, treaty or
directive or interpretation thereof by any authority charged with the
administration or interpretation thereof, or any condition is imposed by any
authority after the date hereof or any change occurs in any condition imposed by
any authority on or prior to the date hereof which affects the amount of capital
required to be maintained by banks generally or corporations controlling banks
and Lender determines the amount by which Lender or any corporation controlling
Lender is required to maintain or increase its capital is increased by, or based
upon, the existence of this Agreement or of Lender’s Loans or Commitment
hereunder; which, as a result thereof, increases the cost to Lender of making or
maintaining the Loans or Commitments hereunder by an amount which Lender in its
sole judgment deems material, then and in any such case Borrower shall pay to
Lender on demand such amount or amounts as will compensate Lender for any
increased cost actually incurred by Lender. The demand for payment by Lender
shall be delivered to Borrower within a reasonable period after the additional
cost is incurred or the amount received is reduced or the subject payment is
made, and shall state the subjection or change which occurred or the reserve or
deposit requirements or other conditions which have been imposed upon Lender or
the request, direction or requirement with which it has complied, together with
the date thereof, the amount of such cost, reduction or payment and the manner
in which such amount has been calculated; provided, that Borrower shall in no
event be required to compensate Lender pursuant to this Section 2.4(c)
for any increased costs or deductions or payments incurred or made by Lender
more than ninety (90) days prior to the date Lender notifies Borrower thereof.
The statement of Lender as to the additional amounts payable pursuant to this
Section 2.4(c)
shall be, absent a showing by Borrower of manifest or demonstrable error,
conclusive evidence of the amounts due hereunder. The protection of this
Section 2.4(c)
shall be available to Lender regardless of any possible contention of invalidity
or inapplicability of the relevant law, regulation, treaty, directive, condition
or interpretation thereof. In the event that Borrower pays Lender the amount
necessary to compensate Lender for any charge, deduction or payment incurred or
made by Lender as provided in this Section 2.4(c)
and such charge, deduction or payment or any part thereof is subsequently
returned to Lender as a result of the final determination of the invalidity or
inapplicability of the relevant law, regulation, treaty, directive or condition,
then Lender shall remit to Borrower the amount paid by Borrower which has
actually been returned to Lender (together with any interest actually paid to
Lender on such returned amount).

 

(c) Amendment
to Section 2.6. Section 2.6(c)
is amended and restated to read as follows:

 

(c) Non-Business
Days.
Whenever any payment hereunder or under any other Loan Document shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day and such extension of time shall in such case be
included in the computation and payment of interest or commitment fees, as the
case may be.

 



SEA
1524722v5 58243-2



5












 

 Notwithstanding
the foregoing (i) any Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding Business Day
unless, such Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period that begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period

 

(d) Amendments
to Section 2.7. Section 2.7
is amended and restated to read as follows:

 

Section
2.7 Prepayments.
Prime Rate Loans may be repaid at any time without penalty or premium. If a
LIBOR Rate Loan is paid prior to the end of the Interest Period, Borrower shall
compensate Lender, upon written request by Lender (which request shall set forth
the basis for requesting such amounts), for all reasonable losses, expenses and
liabilities (including, without limitation, any interest paid by Lender of funds
borrowed by it to make or carry its LIBOR Rate Loans and any loss, expense or
liability sustained by the Lender in connection with the liquidation or
re-employment of such funds) which Lender may sustain as a result of such
payment. Such amounts shall be payable in all circumstances where a LIBOR Rate
Loan is paid prior to the end of the Interest Period, regardless of whether such
payment is voluntary, mandatory or the result of the Lender’s collection
efforts.

 

(e) Amendment
to Section 2.8. Section 2.8(a)
is amended and restated to read as follows:

 

(a) Payments
Before Default.
Payments made by Borrower in respect of amounts owing by it hereunder or under
any other Loan Document shall be applied in the manner directed by Borrower and,
in the absence of any such direction, such payments shall be applied
first,
against fees, expenses and indemnities due hereunder or under any other Loan
Document; second,
against any interest due on any Revolving Loan, the Term Loan or any Reducing
Non-Revolving Loan; third,
against any Term Loan principal then due; fourth,
against any principal on the Revolving Loans bearing interest at the Revolving
Prime Rate until all such Revolving Loans are paid in full; fifth,
against any principal on the LIBOR Rate Loans until all such LIBOR Rate Loans
are paid in full; and, thereafter, to Term Loan principal not then due (applied
to Borrower’s obligations in the inverse order of maturity).

 

(f) Amendment
to Section 2.9. Section 2.9(b)
is amended and restated to read as follows:

 

(b) Unused
Commitment Fees.
So long as Lender shall have any commitment to make Revolving Loans hereunder
and, until payment in full of each Revolving Loan, Borrower agrees to pay to
Lender, an unused commitment fee computed daily at a per annum rate equal to one
eighth of one percent (0.125%) on the actual daily difference between the Credit
Utilization and the Revolving Commitment Amount. Unused commitment fees shall be
payable in arrears on the first Business Day following the last Business Day of
each fiscal quarter of Borrower, on the Revolving Maturity Date, and on demand
after the occurrence of an Event of Default.

 

(g) Amendment
to Section 5.15. Section 5.15(b)
is amended and restated to read as follows:

 

(b) [Reserved]

 

(h) Amendment
to Schedules. Schedules 1,
2,
4
and 5
are each amended and restated as set forth in Schedules 1,
2,
4
and 5
attached hereto.

 

3. Conditions
to Effectiveness.
Notwithstanding anything contained herein to the contrary, this Amendment shall
not become effective until each of the following conditions is fully and
simultaneously satisfied:

 







6












 


                              
(a) Delivery
of Amendment.
Borrower and Lender shall have executed and delivered counterparts of this
Amendment to each other;

 


(b) Delivery
of Note.
Borrower shall have executed and delivered to Lender an Amended and Restated
Promissory Note in the form of Exhibit A-1
attached hereto (the “Restated
Note”);

 

(c) Payment
of Fees.
Borrower shall have paid to Lender an amendment fee in the amount of Twelve
Thousand Five Hundred Dollars ($12,500) in respect of Lender’s agreement to
enter into this Amendment;

 

(d) Corporate
Authority.
Lender shall have received such evidence of corporate authority and action as
Lender shall reasonably request demonstrating that the execution, delivery and
performance of this Amendment and the Restated Note has been duly authorized by
Borrower;

 

(e) Representations
True; No Default.
The representations of Borrower as set forth in Article 4
of the Loan Agreement shall be true on and as of the date of this Amendment with
the same force and effect as if made on and as of this date or, if any such
representation or warranty is stated to have been made as of or with respect to
a specific date, as of or with respect to such specific date. No Event of
Default and no event which, with notice or lapse of time or both, would
constitute an Event of Default, shall have occurred and be continuing or will
occur as a result of the execution, delivery or performance of the Amendment
Documents; and

 

(f) Other
Documents.
Lender shall have received such other documents, instruments, and undertakings
as Lender may reasonably request.

 

4. Representations
and Warranties.
Borrower hereby represents and warrants to Lender that each of the
representations and warranties set forth in Article 4
of the Loan Agreement is true and correct in each case as if made on and as of
the date of this Amendment or, if any such representation or warranty is stated
to have been made as of or with respect to a specific date, as of or with
respect to such specific date. Borrower expressly agrees that it shall be an
additional Event of Default under the Loan Agreement if any representation or
warranty made hereunder shall prove to have been incorrect in any material
respect when made.

 

5. No
Further Amendment.
Except as expressly modified by this Amendment, the Loan Agreement and the other
Loan Documents shall remain unmodified and in full force and effect and the
parties hereby ratify their respective obligations thereunder.

 

6. Reservation
of Rights.
Borrower acknowledges and agrees that the execution and delivery by Lender of
this Amendment shall not be deemed to create a course of dealing or otherwise
obligate Lender to forbear or execute similar amendments under the same or
similar circumstances in the future.

 

7. Miscellaneous.

 

(a) Entire
Agreement.
This Amendment and the other Amendment Documents comprise the entire agreement
of the parties with respect to the subject matter hereof and supersedes all
prior oral or written agreements, representations or commitments.

 

(b) Counterparts.
This Amendment may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original, and all of which taken together shall constitute one
and the same Amendment. Delivery of an originally executed signature page or
pages hereto, a counterpart signature page, or a photocopy thereof transmitted
by telephone facsimile transmission, shall be as effective as delivery of a
manually signed counterpart of this Amendment.

 

(c) Governing
Law.
This Amendment and the other agreements provided for herein and the rights and
obligations of the parties hereto and thereto shall be construed and interpreted
in accordance with the laws of the State of Washington, excluding its conflicts
of law rules.

 



SEA
1524722v5 58243-2



7












 

(d) Oral
Agreements Not Enforceable.

 

ORAL
AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO FOREBEAR FROM
ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON
LAW.

 

IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by
their respective officers or agents thereunto duly authorized as of the date
first above written.

 

BORROWER: KEY
TECHNOLOGY, INC., an Oregon corporation

 

By
/s/
Ronald W. Burgess

Its
SR
VP & CFO

 

LENDER: BANNER
BANK, a Washington banking corporation

 

By
/s/
Matt
Tucker

Its
SVP

 




 

SEA
1524722v5 58243-2 






8















SCHEDULE 1

 

LITIGATION

 


	
      1.
	
      From
      time to time in the normal course of business, the Borrower is party to
      litigation concerning patent infringement or employment issues, either as
      claimant or defendant.




 






SEA
1524722v5 58243-2



1















SCHEDULE 2

 

LIENS

 

Part
(a). Equipment
Leases.

 


	 	
      Lessor/Lien
      Holder

       
	
       

       

      Equipment/Collateral

       
	
       

       

      Location

       
	
       

       

      Inception
      Date

       

	
      1.

       
	
      Celtic
      Leasing Corp

       
	
      CNC
      laser cutting system

       

      4000
      Watt Bystar 3015

       
	
      Avery
      Street

       

      Walla
      Walla, WA

       
	
      October,
      2000

       

	
      2.

       
	
      Parametric
      Technology Corporation

       
	
      Pro-E
      / Acuity

       
	
      Avery
      Street

       

      Walla
      Walla, WA

       
	
      April,
      2002

       

	
      3.

       
	
      S.E.
      Rentals Pty Limited

       
	
      Printer
      / Copier

       
	
      Melbourne,
      Australia

       
	
      May,
      2002

       

	
      4.

       
	
      S.E.
      Rentals Pty Limited

       
	
      Phone
      System

       
	
      Melbourne,
      Australia

       
	
      May,
      2002

       




 

Part
(b). Real
Property Leases.

 


	
      1.
	
      Indenture
      of Lease dated December 30, 1999, as amended, between Borrower and
      John E. Mobley and Nancy L. Mobley, as assumed by Richard Lane and
      Lawrence Dozal




 


	
      2.
	
      Lease
      Agreement dated April 18, 1996 between Borrower and Port of Walla
      Walla, a municipal corporation in the state of
  Washington




 


	
      3.
	
      Lease
      Agreement dated October 17, 1989 between Borrower and Port of Walla
      Walla, a municipal corporation in the state of
  Washington




 


	
      4.
	
      Lease
      Agreement dated March 1, 2002 between Borrower and Regence Blue Cross
      Blue Shield of Oregon




 


	
      5.
	
      Lease
      Agreement dated May 1, 2004 between Borrower and Thomas F. Glynn and
      Winifred P Glynn, for office space in Dingley,
Australia




 

Part
(c). Liens
to be Released.

 


	
      1.
	
      The
      liens held by U.S. Bank National Association which are being released in
      connection with this transaction.




 



SEA
1524722v5 58243-2



1















SCHEDULE 4

 

ENVIRONMENTAL
MATTERS

 


	
      1.
	
      Borrower
      uses argon gas and liquid nitrogen in its manufacturing process, which is
      delivered to and stored in large bulk tanks on the exterior of Borrower’s
      manufacturing facilities.




 


	
      2.
	
      The
      use and disposal of ordinary cleaning materials for the office and kitchen
      and ordinary office supplies.




 


	
      3.
	
      Borrower’s
      manufacturing process produces scrap metal for which it is required to
      file Toxic Release Inventory Reporting - Form R with the Environmental
      Protection Agency.




 



SEA
1524722v5 58243-2



1












 

SCHEDULE 5

 

SUBSIDIARIES

 


	 	
      Name

       
	
      Type
      of Entity

       
	
      Jurisdiction

       
	
      Owner

       
	
      Percentage

       

	
      1.

       
	
      KTH
      USA, Inc.

       
	
      Corporation

       
	
      Oregon

       
	
      Key
      Technology, Inc.

       
	
      100%

       

	
      2.

       
	
      Key
      Technology AMVC LLC

       
	
      Limited
      Liability Company

       
	
      Oregon

       
	
      Key
      Technology, Inc.

       
	
      100%

       

	
      3.

       
	
      Key
      Technology Holdings USA LLC

       
	
      Limited
      Liability Company

       
	
      Oregon

       
	
      Key
      Technology, Inc.

       
	
      100%

       

	
      4.

       
	
      Suplusco
      Holding B.V.

       
	
      Corporation

       
	
      Netherlands

       
	
      Key
      Technology Holdings USA LLC

       
	
      100%

       

	
      5.

       
	
      Key
      Technology B.V.

       
	
      Corporation

       
	
      Netherlands

       
	
      Suplusco
      Holding B.V.

       
	
      100%

       

	
      6.

       
	
      Key
      Technology Australia Pty. Ltd.

       
	
      Corporation

       
	
      Australia

       
	
      Key
      Technology, Inc.

       
	
      100%

       









SEA
1524722v5 58243-2



2

















EXHIBIT
A-1

 

AMENDED
AND RESTATED REVOLVING NOTE

 

$10,000,000.00                                                                                           March 
31,
2005

Walla
Walla, Washington

 

FOR
VALUE RECEIVED, the undersigned, KEY TECHNOLOGY, INC., an Oregon corporation
(the “Borrower”),
hereby promises to pay to the order of BANNER BANK, a Washington banking
corporation (the “Lender”)
on the Revolving Maturity Date the unpaid principal balance of all Revolving
Loans made by Lender under this Note, in a maximum amount not to exceed Ten
Million Dollars ($10,000,000), together with interest thereon from the date
hereof until maturity at a per annum rate equal to the Revolving Interest Rate
as defined below (changing as the Revolving Interest Rate changes); provided,
however,
that after the occurrence and during the continuation of an Event of Default,
interest shall accrue at a per annum rate equal to three percent (3%) above the
Prime Rate (changing as such Prime Rate changes). Notwithstanding anything
herein to the contrary, interest shall not accrue at a rate in excess of the
maximum rate permitted by applicable law.

 

This
Note amends, restates and continues that certain Promissory Note made by
Borrower in favor of Lender dated August 9, 2002 in the amount of Ten
Million Dollars ($10,000,000).

 

Borrower
further agrees as follows:

 

1. All
payments of principal and interest on this Note shall be made by paying the same
in United States Dollars and in immediately available funds to Lender in
accordance with wire transfer instructions as may be provided to Borrower from
time to time, at its main office, Walla Walla, Washington, not later than 2:00
p.m. (Walla Walla time) on the date on which such payment shall become due. If
such payment is received after 2:00 p.m., then it will be deemed received on the
next Business Day.

 

2. On
each day that the aggregate outstanding principal balance of all Revolving Loans
exceeds the Borrowing Base, Borrower shall repay Revolving Loans in such an
amount as is necessary to reduce such aggregate outstanding principal balance to
an amount equal to or less than the Borrowing Base.

 

3. As
used herein “Revolving Interest Rate” shall mean for each Revolving Loan (or
portion thereof), the Revolving Prime Rate or the Revolving LIBOR Rate, as
designated by Borrower in an Interest Rate Notice given with respect to such
Revolving Loan (or portion thereof) or as otherwise determined pursuant to
Section 2.4(b)
of the Loan Agreement (as defined below). Accrued but unpaid interest on each
Revolving Loan (or portion thereof) bearing interest at the Revolving LIBOR Rate
(a “LIBOR
Rate Loan”)
shall be paid in arrears on the last day of each Interest Period. Accrued but
unpaid interest on each Revolving Loan (or portion thereof) bearing interest at
the Revolving Prime Rate (a “Prime
Rate Loan”)
shall be paid in arrears on the first Business Day of each calendar month, and
at the Revolving Maturity Date. Accrued interest on each Revolving Loan shall be
payable on demand after the occurrence of an Event of Default.

 

4. This
Note is issued under and is subject to the terms of that certain Loan Agreement
dated as of August 9, 2002, by and between Borrower and Lender (as amended
from time to time, the “Loan
Agreement”).
Capitalized terms not defined herein have the meanings set forth in the Loan
Agreement.

 

5. It
is expressly provided that if any of the Events of Default described in
Section 7.1(g)
or Section 7.1(h)
of the Loan Agreement shall occur, the entire unpaid balance of the principal
and interest hereunder shall be immediately due and payable in accordance with
the terms of the Loan Agreement. It is also expressly provided that upon the
occurrence of any other Event of Default, the entire remaining unpaid balance of
the principal and interest may be declared by Lender to be immediately due and
payable in accordance with the terms of the Loan Agreement.

 



SEA
1524722v5 58243-2
















6. Borrower
may repay Prime Rate Loans at any time without penalty or premium. Prepayment of
all or any portion of a LIBOR Rate Loan prior to the end of the Interest Period
then in effect with respect to such LIBOR Rate Loan, whether voluntary,
mandatory or as the result of Lender’s collection efforts, shall be subject to
the payment fees as described in Section 2.7
of the Loan Agreement.

 

7. The
unpaid principal balance of the Revolving Loans made hereunder shall be the
total amount advanced hereunder, less
the amount of the principal payments made hereon. This Note is given to avoid
the execution of an individual note for each Revolving Loan made by Lender to
Borrower. This Note evidences a revolving credit and up to the Revolving
Commitment Amount and during the Revolving Commitment Period, Borrower may pay,
prepay and reborrow. Lender is hereby authorized to record the date and amount
of each Revolving Loan it makes hereunder and the date and amount of each
payment of principal and interest thereon on a schedule annexed hereto and
constituting a part of this Note or maintained in connection herewith. Any such
recordation by Lender shall constitute prima facie evidence of the accuracy of
the information so recorded; provided,
however,
that the failure to make any such recordation or any error in any such
recordation shall not affect the obligations of Borrower hereunder.

 

8. Each
maker, surety, guarantor and endorser of this Note expressly waives all notices,
demands for payment, presentations for payment, notices of intention to
accelerate the maturity, protest and notice of protest.

 

9. In
the event this Note is placed in the hands of an attorney for collection, or
suit is brought on the same, or the same is collected through bankruptcy or
other judicial proceedings, Borrower agrees and promises to pay reasonable
attorneys’ fees and collection costs, including all out-of-pocket expenses and
the allocated costs and disbursements of internal counsel, incurred by
Lender.

 

10. This
Note has been executed and delivered in and shall be governed by and construed
in accordance with the laws of the State of Washington, excluding its conflict
of laws rules. Borrower hereby irrevocably submits to the non-exclusive
jurisdiction of any state or federal court sitting in the City of Walla Walla,
Walla Walla County, Washington, in any action or proceeding brought to enforce
or otherwise arising out of or relating to this Note and hereby waives any
objection to venue in any such court and any claim that such forum is an
inconvenient forum.

 

BORROWER: KEY
TECHNOLOGY, INC., an Oregon corporation

 

By
/s/
Ronald W. Burgess

Its
SR
VP & CFO

 




SEA
1524722v5 58243-2 






2















Schedule
1

to
Key Technology, Inc. Amended and Restated Revolving Note

 


	
       

       

       

       

      Date
	
      Amount
      of Loan
	
       

       

       

       

       

      Prime
      Rate
	
       

       

       

      Amount
      of Principal Paid
	
       

      Unpaid
      Principal Balance
	
       

       

       

       

       

      Notation
      By