Attached files
| file | filename |
|---|---|
| 10-Q - 10-Q - ADEPT TECHNOLOGY INC | d847213d10q.htm |
| EX-10.2 - EX-10.2 - ADEPT TECHNOLOGY INC | d847213dex102.htm |
| EX-32.1 - EX-32.1 - ADEPT TECHNOLOGY INC | d847213dex321.htm |
| EX-31.2 - EX-31.2 - ADEPT TECHNOLOGY INC | d847213dex312.htm |
| EXCEL - IDEA: XBRL DOCUMENT - ADEPT TECHNOLOGY INC | Financial_Report.xls |
| EX-31.1 - EX-31.1 - ADEPT TECHNOLOGY INC | d847213dex311.htm |
Exhibit 10.1
FIRST AMENDMENT
TO
LOAN AND SECURITY AGREEMENT AND WAIVER
This First Amendment to Loan and Security Agreement and Waiver (“Amendment”) is entered into as of January 31, 2015, by and between COMERICA BANK (“Bank”) and ADEPT TECHNOLOGY, INC. (“Borrower”).
RECITALS
Borrower and Bank are parties to that Loan and Security Agreement dated as June 9, 2014, as it may be amended from time to time ( “Agreement”). The parties desire to amend the Agreement further in accordance with the terms of this Amendment.
NOW, THEREFORE, the parties agree as follows:
1. Borrower failed to comply with Section 6.7 of the Agreement (Accounts) by not closing its accounts with Silicon Valley Bank by January 3, 2015 (“Covenant Violation”). Borrower requested that Bank waive the Covenant Violation. Bank hereby waives the Covenant Violation. This waiver is specific as to content and time, shall be limited precisely as written, and shall not constitute a waiver of any other current or future default or Event of Default or breach of any covenant contained in the Agreement or the terms and conditions of any other Loan Documents. Bank expressly reserves all of its various rights, remedies, powers and privileges under the Agreement and the other Loan Documents due to any other default, Event of Default or breach not waived herein.
2. Exhibit A to the Agreement is amended by adding or amending and restating the following defined terms to read in their entirety as follows:
“Non-Formula Amount” means One Million Dollars ($1,000,000).”
3. Section 6.7(a) of the Agreement is amended and restated to read in its entirety as follows:
| “(a) | EBITDA Loss. (i) An EBITDA loss of not greater than the following amounts for the following periods: |
| Testing Period |
Maximum EBITDA Loss | |
| Quarter ended December 31, 2014 |
||
| Quarter ending March 31, 2015 |
||
| Quarter ending June 30, 2015 |
||
| Twelve month period ending June 30, 2015 |
(ii) An EBITDA loss of not greater than (a) $xxx for any fiscal quarter of Borrower in 2016 and (b) $xxx for the twelve-month period ending June 30, 2016.”
4. The term “Account Closing Date” set forth in Section 6.6 of the Agreement shall now mean January 30, 2015 and not January 3, 2015.
5. Exhibits E and F to the Agreement are deleted and replaced with Exhibits E and F attached hereto.
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6. No course of dealing on the part of Bank or its officers, nor any failure or delay in the exercise of any right by Bank, shall operate as a waiver thereof, and any single or partial exercise of any such right shall not preclude any later exercise of any such right. Bank’s failure at any time to require strict performance by Borrower of any provision shall not affect any right of Bank thereafter to demand strict compliance and performance. Any suspension or waiver of a right must be in writing signed by an officer of Bank.
7. Unless otherwise defined, all initially capitalized terms in this Amendment shall be as defined in the Agreement. The Agreement, as amended hereby, shall be and remain in full force and effect in accordance with its respective terms and is hereby ratified and confirmed in all respects. The execution, delivery, and performance of this Amendment shall not operate as a waiver of, or as an amendment of, any right, power, or remedy of Bank under the Agreement, as in effect prior to the date hereof.
8. Borrower represents and warrants that the representations and warranties contained in the Agreement are true and correct as of the date of this Amendment , and that (except for the Existing Defaults) no Event of Default has occurred and is continuing.
9. As a condition to the effectiveness of this Amendment, Bank shall have received, in form and substance satisfactory to Bank, the following:
| (a) | this Amendment, duly executed by Borrower; |
| (b) | Corporate Resolutions and Incumbency Certification, duly executed by Borrower; |
| (c) | a Prime Referenced Rate Addendum to Loan and Security Agreement, duly executed by Borrower; |
| (d) | affirmation of guaranty, duly executed by the guarantors; |
| (e) | a non-refundable amendment fee in the amount of $5,000, which may be debited from any of Borrower’s accounts with Bank; |
| (f) | all reasonable Bank Expenses incurred through the date of this Amendment, which may be debited from any of Borrower’s accounts with Bank; and |
| (g) | such other documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate. |
10. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have executed this First Amendment to Loan and Security Agreement and Waiver as of the first date above written.
| ADEPT TECHNOLOGY, INC. | ||
| By: | /s/ Seth Halio | |
| Title: | Chief Financial Officer | |
| COMERICA BANK | ||
| By: | /s/ Sean Noonan | |
| Title: | Vice President | |
[Signature Page to First Amendment to Loan and Security Agreement and Waiver (5060818)]
EXHIBIT E
COMPLIANCE CERTIFICATE
| Please send all Required Reporting to: | Comerica Bank Technology & Life Sciences Division Loan Analysis Department 250 Lytton Avenue 3rd Floor, MC 4240 Palo Alto CA 94301 Phone: (650) 462-6060 Fax: (650) 462-6061 |
FROM: Adept Technology, Inc.
The undersigned authorized Officer of Adept Technology, Inc. (“Borrower”), hereby certifies that in accordance with the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”), (i) Borrower is in complete compliance for the period ending , 201 with all required covenants, including without limitation the ongoing registration of intellectual property rights in accordance with Section 6.8, except as noted below and (ii) all representations and warranties of Borrower stated in the Agreement are true and correct in all material respects as of the date hereof; provided, however, that those representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as of such date. Attached herewith are the required documents supporting the above certification (“Supporting Documents”). The Officer further certifies the Supporting Documents are prepared in accordance with Generally Accepted Accounting Principles (GAAP) and are consistently applied form one period to the next except as explained in an accompanying letter or footnotes.
Please indicate compliance status by circling Yes/No under “Complies” or “Applicable” column,
| REPORTING COVENANTS | REQUIRED | COMPLIES | ||||||
| Company Prepared Monthly F/S | Monthly, within 30 days | YES | NO | |||||
| Company Prepared Quarterly F/S | Quarterly, within 45 days | YES | NO | |||||
| Compliance Certificate | Monthly, within 30 days | YES | NO | |||||
| CPA Audited. Unqualified F/S | Annually, within 90 days of FYE | YES | NO | |||||
| Borrowing Base Cert, A/R & A/P Agings | Monthly, within 30 days | YES | NO | |||||
| Annual Business Plan | Annually, on or before July 31 | YES | NO | |||||
| Intellectual Property Report | Annually, within 90 days of FYE | YES | NO | |||||
| Audit | Semi-annual | YES | NO | |||||
| If Public: | ||||||||
| 10-Q | Quarterly, within 5 days of SEC filing (50 days) | YES | NO | |||||
| 10-K | Annually, within 5 days of SEC filing (95 days) | YES | NO | |||||
| Total amount of Borrower’s cash and investments | Amount: $____________________________ | YES | NO | |||||
| Total amount of Borrower’s cash and investments maintained with Bank | Amount: $____________________________ | YES | NO | |||||
| DESCRIPTION | APPLICABLE |
|||||||||||
| Legal Action > $500,000 (Sect. 6.2(iv)) | Notify promptly upon notice | __________________________ | YES | NO | ||||||||
| Inventory Disputes> $500,000 (Sect. 6.3) | Notify promptly upon notice | __________________________ | YES | NO | ||||||||
| Mergers & Acquisitions (Sect. 7.3) | Notify promptly upon notice | __________________________ | YES | NO | ||||||||
| Cross default with other agreements >$500,000 (Sect. 8.6) | Notify promptly upon notice | __________________________ | YES | NO | ||||||||
| Judgments/Settlements > $750,000 (Sect. 8.8) | Notify promptly upon notice | __________________________ | YES | NO | ||||||||
| Capital Expenditures > $1,000,000 (Sect. 7.12) | Notify promptly upon notice | __________________________ | YES | NO | ||||||||
| Borrower’s and Subsidiaries’ aggregate foreign account balance > $2,000,000 (Sect. 6.6) | Notify promptly upon notice | __________________________ | YES | NO | ||||||||
| Transfers to foreign accounts > $500,000 (Sect. 6.6) | Notify promptly upon notice | __________________________ | YES | NO | ||||||||
| FINANCIAL COVENANTS | REQUIRED | ACTUAL | COMPLIES |
|||||||||
| TO BE TESTED MONTHLY, UNLESS OTHERWISE NOTED |
||||||||||||
| Maximum EBITDA Loss (tested quarterly and annually) | See Section 6.7(a) | $_______________________ | YES | NO | ||||||||
| Minimum Cash at Bank (maintained at all times and reported monthly) | $1,000,000 | $_______________________ | YES | NO | ||||||||
| FINANCIAL COVENANTS | REQUIRED | ACTUAL | COMPLIES |
|||||||||
| Permitted Indebtedness for equipment leases | <$100,000 | $________________________ | YES | NO | ||||||||
| Permitted Investments for stock repurchase | <$100,000 | $________________________ | YES | NO | ||||||||
| Permitted Investments for subsidiaries by Borrower | <$1,000,000 (total prior to termination of the Agreement) |
$________________________ | YES | NO | ||||||||
| Permitted Investments to subs. that are not guarantors by subs. | <$500,000 | $________________________ | YES | NO | ||||||||
| Permitted Investments for employee loans | <$100,000 | $________________________ | YES | NO | ||||||||
| Permitted Investments for employee travel advances | <$200,000 | $________________________ | YES | NO | ||||||||
| Permitted Investments for joint ventures | <$100,000 | $________________________ | YES | NO | ||||||||
| Permitted Liens for equipment leases | <$100,000 | $________________________ | YES | NO | ||||||||
| Permitted Transfers | <$100,000 | $________________________ | YES | NO | ||||||||
| Permitted Unsecured Credit Cards | <$100,000 | $________________________ | YES | NO | ||||||||
| Permitted Other Unsecured Indebtedness | <$200,000 | $________________________ | YES | NO | ||||||||
Exhibit E – Page 1
Please Enter Below Comments Regarding Violations:
The undersigned further acknowledges that at any time Borrower is not in compliance with all the terms set forth in the Agreement, including, without limitation, the financial covenants, no Credit Extensions will be made.
Very truly yours,
| ADEPT TECHNOLOGY, INC. | ||
| Authorized Signer | ||
| Name | ||
| Title | ||
Exhibit E – Page 2
EXHIBIT F
PRICING ADDENDUM
(See Attached)
Exhibit F – Page 1
|
Corporation Resolutions and Incumbency Certification Authority to Procure Loans |
I certify that I am the duly elected and qualified Secretary of ADEPT TECHNOLOGY, INC.; that the following is a true and correct copy of resolutions duly adopted by the Board of Directors of the Corporation in accordance with its bylaws and applicable statutes.
Copy of Resolutions:
Be it Resolved, That:
| 1. | Any one (1) of the following CEO or CFO (insert titles only) of the Corporation is authorized, for, on behalf of, and in the name of the Corporation to: |
| (a) | Negotiate and procure loans, letters of credit and other credit or financial accommodations from Comerica Bank (“Bank”), including, without limitation, that Loan and Security Agreement dated as June 9, 2014, as amended from time to time, including but not limited to that First Amendment to Loan and Security Agreement and Waiver dated as of January 31, 2015 (collectively, the “Agreement”); |
| (b) | Discount with the Bank, commercial or other business paper belonging to the Corporation made or drawn by or upon third parties, without limit as to amount; |
| (c) | Purchase, sell, exchange, assign, endorse for transfer and/or deliver certificates and/or instruments representing stocks, bonds, evidences of Indebtedness or other securities owned by the Corporation, whether or not registered in the name of the Corporation; |
| (d) | Give security for any liabilities of the Corporation to the Bank by grant, security interest, assignment, lien, deed of trust or mortgage upon any real or personal property, tangible or intangible of the Corporation; |
| (e) | Issue a warrant or warrants to purchase the Corporation’s capital stock; |
| (f) | Execute and deliver in form and content as may be required by the Bank any and all notes, evidences of Indebtedness, applications for letters of credit, guaranties, subordination agreements, loan and security agreements, financing statements, assignments, liens, deeds of trust, mortgages, trust receipts and other agreements, instruments or documents to carry out the purposes of these Resolutions, any or all of which may relate to all or to substantially all of the Corporation’s property and assets; and |
| (g) | Appoint, delegate and authorize such other person(s) (the “Delegated Person(s)”) as may be designated in writing from time to time by the above referenced Authorized Signer(s), or any one or more of them, to (i) request loans, advances and/or letters of credit under any line of credit, loan or other credit or financial accommodation made available by Bank to or in favor of the Corporation, and to execute and/or deliver unto Bank, in form and content as may be required by the Bank, such agreements, instruments and documents as may be necessary or required to carry out such purposes, (ii) make loan payments for and on behalf of the Corporation, and (iii) execute and certify borrowing base certificates, account agings, inventory reports and collateral reports (together with any other documents, reports and certificates required to be delivered in connection with any of the foregoing) for and on behalf of the Corporation |
| 2. | Said Bank be and it is authorized and directed to pay the proceeds of any such loans or discounts as directed by the persons so authorized to sign, in accordance with the Agreement. |
| 3. | Any and all agreements, instruments and documents previously executed and acts and things previously done to carry out the purposes of these Resolutions are ratified, confirmed and approved as the act or acts of the Corporation. |
| 4. | These Resolutions shall continue in force, and the Bank may consider the holders of said offices and their signatures to be and continue to be as set forth in a certified copy of these Resolutions delivered to the Bank, until notice to the contrary in writing is duly served on the Bank (such notice to have no effect on any action previously taken by the Bank in reliance on these Resolutions). |
| 5. | Any person, corporation or other legal entity dealing with the Bank may rely upon a certificate signed by an officer of the Bank to the effect that these Resolutions and any agreement, instrument or document executed pursuant to them are still in full force and effect and binding upon the Corporation. |
| 6. | The Bank may consider the holders of the offices of the Corporation and their signatures, respectively, to be and continue to be as set forth in the Certificate of the Secretary of the Corporation until notice to the contrary in writing is duly served on the Bank. |
I further certify that the above Resolutions are in full force and effect as of the date of this Certificate; that these Resolutions and any borrowings or financial accommodations under these Resolutions have been properly noted in the corporate books and records, and have not been rescinded, annulled, revoked or modified; that neither the foregoing Resolutions nor any actions to be taken pursuant to them are or will be in contravention of any provision of the certificate of incorporation or bylaws of the Corporation or of any agreement, indenture or other instrument to which the Corporation is a party or by which it is bound; and that neither the certificate of incorporation nor bylaws of the Corporation nor any agreement, indenture or other instrument to which the Corporation is a party or by which it is bound require the vote or consent of shareholders of the Corporation to authorize any act, matter or thing described in the foregoing Resolutions.
I further certify that the following named persons have been duly elected to the offices set opposite their respective names, that they continue to hold these offices at the present time, and that the signatures which appear below are the genuine, original signatures of each respectively:
(PLEASE SUPPLY GENUINE SIGNATURES OF AUTHORIZED SIGNERS BELOW)
| NAME (Type or Print) | TITLE | SIGNATURE | ||
| Seth Halio |
CFO |
/s/ Seth Halio | ||
| Rob Cain |
CEO |
/s/ Rob Cain | ||
|
|
|
|
In Witness Whereof, I have affixed my name as Secretary and have caused the corporate seal (where available) of said Corporation to be affixed on January 31, 2015.
| /s/ Seth Halio |
| Secretary |
| The Above Statements are Correct. | /s/ Rob Cain | |
| SIGNATURE OF OFFICER OR DIRECTOR OR, IF NONE. A SHAREHOLDER OTHER THAN SECRETARY WHEN SECRETARY IS AUTHORIZED TO SIGN ALONE. | ||
Failure to complete the above when the Secretary is authorized to sign alone shall constitute a certification by the Secretary that the Secretary is the sole Shareholder, Director and Officer of the Corporation.
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AFFIRMATION OF GUARANTY
This AFFIRMATION OF GUARANTY (“Affirmation”) is made as of January , 2015, by the undersigned (individually and collectively, “Guarantor”) in favor of Comerica Bank (“Bank”).
RECITALS
A. Adept Technology, Inc. (“Borrower”) has obtained certain loans or other credit accommodations from Bank pursuant to that certain Loan and Security Agreement, dated as of June 9, 2014, as it may be amended from time to time (the “Loan Agreement”), which loans and certain credit accommodations are guaranteed by Guarantor pursuant to the terms of a Guaranty dated June 9, 2014, executed by Guarantor in favor of Bank (as it may be amended from time to time, the “Guaranty”). Borrower and Bank propose to enter into a First Amendment to Loan and Security Agreement and Waiver dated as of the date hereof (the “Amendment”).
B. Bank has agreed to enter into the Amendment provided, among other things, that, Guarantor acknowledges the entry by Borrower into the Amendment and agrees that the Guaranty will remain effective.
AGREEMENT
NOW, THEREFORE, Guarantor:
1. Consents to the execution, delivery and performance by Borrower of the Amendment and the documents and instruments executed in connection therewith, as well as all other amendments and modifications to the Loan Documents.
2. Acknowledges and agrees that the Guaranty is and shall remain in full force and effect in accordance with its terms with respect to all Obligations (as defined in the Loan Agreement) of Borrower, subject to no setoff, defense or counterclaim.
3. Represents and warrants that the representations and warranties contained in the Guaranty are true and correct in all material respects as of the date of this Affirmation.
4. Confirms that this Affirmation is not required by the terms of the Guaranty and need not be obtained in connection with any prior or future waivers or amendments or extensions of additional credit to Borrower.
[Signature page follows]
IN WITNESS WHEREOF, each Guarantor executed this Affirmation as of the first date above written.
| GUARANTORS: | ||
| ADEPT INMOTX, INC. | ||
| By: | /s/ Seth Halio | |
| Title: | VP Finance | |
| ADEPT TECHNOLOGY HOLDINGS, INC. | ||
| By: | /s/ Seth Halio | |
| Title: | Director | |
| ADEPT MOBILEROBOTS LLC | ||
| By: | /s/ Seth Halio | |
| Title: | Director | |
| ADEPT TECHNOLOGY INTERNATIONAL, LTD. | ||
| By: | /s/ Seth Halio | |
| Title: | Director | |
[Signature page to Affirmation of Guaranty (5060818)]