exv10w58






Exhibit 10.58




 





Third Amendment to Credit Agreement




dated as of November 10, 2008




among




Asyst Technologies, Inc.,

Asyst Technologies Japan Holdings Company, Inc.,




and

Asyst Technologies Japan, Inc.




as Borrowers,


KeyBank National Association,

as Administrative Agent, Lender, Swing Line Lender and L/C Issuer




and


the Lenders Party hereto,

as Lenders




 






 









 




Third Amendment to Credit Agreement


     This Third Amendment to Credit Agreement (this “Amendment”) dated as of November 10,
2008 (the “Amendment Effective Date”) is entered into among Asyst Technologies, Inc., a
California corporation (the “Company” or “ATI”); Asyst Technologies Japan Holdings Company,
Inc., a Japanese corporation (formerly known as Asyst Japan, Inc., “AJH”); and Asyst
Technologies Japan, Inc., a Japanese corporation (formerly known as Asyst Shinko, Inc., “ATJ”;
and together with ATI and AJH being referred to hereafter collectively as the “Borrowers” and
individually each as a “Borrower”); KeyBank National Association (“Key”), as
Administrative Agent, Lender, Swing Line Lender and L/C Issuer (“Agent”) as provided herein,
Citibank, N.A. (“Citi”), as Syndication Agent and as Lender, Silicon Valley Bank
(“SVB”), as Documentation Agent and as Lender, and RBS Citizens NA (formerly known as
Citizens Bank NA), as Lender (“Citizens”, and together with Key, Citi and SVB, as Lenders, being
referred to collectively as the “Lenders” and individually each as a “Lender”) amends that certain
Credit Agreement dated as of July 27, 2007 (as previously amended, the “Credit Agreement”). All
capitalized terms used herein without definition shall have the same meanings herein as such terms
are defined or used in the Credit Agreement.


W i t n e s s e t h:


     Whereas, the parties hereto wish to amend the Credit Agreement to revise certain
provisions and requirements of the Credit Agreement; and


     Now, Therefore, in consideration of the mutual agreements contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:


     Section 1. Amendment to Section 7.11(f). From and after the Amendment Effective Date,
Section 7.11(f) of the Credit Agreement is hereby amended deleting the same in its entirety
and inserting the following in lieu thereof:


     “(f) Maximum Pre-Tax Loss. Permit any pre-tax loss (as shown on the Company’s
consolidated statement of income) to be greater than the following levels for each of the
periods set forth below:


	 	 	 	 	 
	Period	 	Maximum Pre-Tax Loss
	for the fiscal quarter ending September 30, 2008
	 	$	104,700,000	 
	for the fiscal quarter ending December 31, 2008
	 	$	20,700,000	 
	for the two (2) combined fiscal quarters ending
December 31, 2008 and March 31, 2009
	 	$	24,200,000	”




 








 






Third Amendment to Credit Agreement




     Section 2. Additional Agreement. Within thirty (30) days after the Amendment Effective Date,
the Company shall engage the services of a financial consultant (the “Consultant”) reasonably
satisfactory to the Administrative Agent (in Administrative Agent’s sole discretion), pursuant to
an agreement to provide advisory, reporting, monitoring and analytical services in scope and
substance reasonably satisfactory to the Administrative Agent in its sole discretion. The Company
shall be responsible for all fees and expenses payable to the Consultant and shall promptly pay the
same when due. Failure of the Company to engage the Consultant on the time and terms contained
herein shall constitute an Event of Default under the Credit Agreement.



     Section 3. Representations and Warranties. Each Loan Party hereby represents and warrants to
the Administrative Agent and each Lender as follows:




     (a) No Default or Event of Default has occurred and is continuing under the Credit
Agreement as amended hereby. No Default or Event of Default would result from the amendment
of the Credit Agreement contemplated hereby.




     (b) The execution, delivery and performance by the Loan Parties of this Amendment has
been duly authorized by all necessary corporate and other action 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 Amendment and each of the other Loan Documents (as amended by this Amendment)
constitute the legal, valid and binding respective obligations of each Loan Party, as
applicable, enforceable against it in accordance with their respective terms.




     (d) All representations and warranties of Borrowers in the Credit Agreement are true
and correct (except to the extent such representations and warranties expressly refer to an
earlier date, in which case they shall be true and correct as of such earlier date).




     (e) Loan Parties are each entering into this Amendment on the basis of its own
investigation and for its own reasons, without reliance upon the Lender or any other Person.




     (f) Each Loan Party’s respective obligations under the Credit Agreement and under the
other Loan Documents are not subject to any defense, counterclaim, set-off, right of
recoupment, abatement or other claim.



     Section 4. Continuing Effectiveness; Ratification of Guaranties and Loan Documents. As herein
amended, each of the Loan Documents (including, without limitation, each prior amendment to the
Credit Agreement) shall remain in full force and effect and each of the agreements, guarantees and
obligations contained therein (as amended hereby) is hereby ratified and confirmed in all respects.



     Section 5. Counterparts. This Amendment may be executed in any number of counterparts and by
the different parties on separate counterparts, and each such counterpart shall



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Third Amendment to Credit Agreement



be deemed to be an original but all such counterparts shall together constitute one and the
same Amendment.




     Section 6. Governing Law. This Amendment shall be a contract made under and governed by the
laws of the State of New York applicable to contracts made and to be performed entirely within such
state.



     Section 7. Successors and Assigns. This Amendment shall be binding upon the parties hereto
and their respective successors and assigns, and shall inure to the benefit of the parties hereto,
and their respective successors and assigns.



     Section 8. Effectiveness. The amendments set forth in Section 1 above shall deemed effective
as of the Amendment Effective Date provided that the Administrative Agent shall have first received
(a) counterparts of this Amendment executed by the Administrative Agent, the Required Lenders and
each Loan Party party hereto, and (b) an amendment fee (for the account of each Lender executing
this Amendment, pro rata in accordance with each such Lender’s portion of the total Commitments
hereunder) equal to ten (10) basis points (0.10%) of the total Commitments, as revised
($108,250,000).



[Signature Pages to Follow]




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Third Amendment to Credit Agreement


     The parties hereto have caused this Amendment to be duly executed and delivered by their duly
authorized officers as of the date first set forth above.


	 	 	 	 	 
	 	Asyst Technologies, Inc.
 	 
	 	By:  	/s/ Stephen S. Schwartz 	 
	 	 	Name:  	Stephen S. Schwartz 	 
	 	 	Its:   President and Chief Executive Officer 	 
	 



	 	 	 	 	 
	 	Asyst Technologies Japan Holdings Company, Inc.
 	 
	 	By:  	/s/ Tetsuo Yamashita 	 
	 	 	Name:  	Tetsuo Yamashita 	 
	 	 	Its:   Representative Director 	 
	 



	 	 	 	 	 
	 	Asyst Technologies Japan, Inc.
 	 
	 	By:  	/s/ Stephen S. Schwartz 	 
	 	 	Name:  	Stephen S. Schwartz 	 
	 	 	Its:   Representative Director 	 



 








 






	 	 	 	 	 



Third Amendment to Credit Agreement




	 	 	 	 	 
	 	KeyBank National Association, as

Administrative Agent, Lender, Swing Line Lender and

L/C Issuer

 	 
	 	/s/ Raed Alfayoumi
 	 
	 	By: Raed Alfayoumi 	 
	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



Third Amendment to Credit Agreement




	 	 	 	 	 
	 	Silicon Valley Bank, as Lender

 	 
	 	By:  	/s/ Tom Smith
 	 
	 	Title: 	 Managing Director 	 
	 	 	 	 



 









 






	 	 	 	 	 



Third Amendment to Credit Agreement




	 	 	 	 	 
	 	Asyst Technologies (Taiwan) Ltd.,

as a Taiwanese Subsidiary Guarantor

 	 
	 	By:  	/s/ Steve Debenham
 	 
	 	Title: Director 	 
	 	 	 	 



 









 






	 	 	 	 	 



Third Amendment to Credit Agreement




	 	 	 	 	 
	 	Asyst Korea, Ltd.,

as a Korean Subsidiary Guarantor

 	 
	 	By:  	/s/ Steve Debenham
 	 
	 	Title: Director 	 
	 	 	 



 









 






	 	 	 	 	 



Third Amendment to Credit Agreement




	 	 	 	 	 
	 	Asyst Technologies Japan, Inc. (Formerly

Asyst Shinko, Inc.),

as a Japanese Subsidiary Guarantor

 	 
	 	By:  	/s/ Stephen S. Schwartz
 	 
	 	Title: Representative Director  	 
	 	 	 	 



 









 






	 	 	 	 	 



Third Amendment to Credit Agreement




	 	 	 	 	 
	 	Asyst Technologies, Inc.,

as Guarantor

 	 
	 	By:  	/s/ Stephen S. Schwartz
 	 
	 	Title: President & Chief Executive Officer  	 
	 	 	 	 



 









 




	 	 	 	 	 



Third Amendment to Credit Agreement


	 	 	 	 	 
	 	Asyst Technologies Japan Holdings Company, Inc.

(Formerly Asyst Japan, Inc.),

as a Japanese Subsidiary Guarantor

 	 
	 	By:  	/s/ Tetsuo Yamashita
 	 
	 	Title: President 	 
	 	 	 	 



 








 




	 	 	 	 	 



Third Amendment to Credit Agreement


	 	 	 	 	 
	 	Asyst Automation Technologies Ireland Limited

(Fromerly: Asyst Shinko Ireland, Ltd.)

as Other Foreign Subsidiary Guarantor
 	 
	 	By:  	/s/ John Swenson 	 
	 	Title: Director 	 
	 	 	 	 



 








 






	 	 	 	 	 



Third Amendment to Credit Agreement




	 	 	 	 	 
	 	Asyst Shinko Taiwan, Inc.,

as a Taiwanese Subsidiary Guarantor

 	 
	 	By:  	/s/ Noboru Goto
 	 
	 	Title: Chairman 	 
	 	 	 	 



 









 






	 	 	 	 	 



Third Amendment to Credit Agreement




	 	 	 	 	 
	 	Asyst Shinko Korea, Inc.,

as a Korean Subsidiary Guarantor

 	 
	 	By:  	/s/ Steve Debenham
 	 
	 	Title: Director 	 
	 	 	 	 



 









 






	 	 	 	 	 



Third Amendment to Credit Agreement




	 	 	 	 	 
	 	Asyst Shinko America, Inc.,

as US Subsidiary Guarantor

 	 
	 	By:  	Steve Debenham
 	 
	 	Title: Director