Exhibit 10.1
Second Omnibus Amendment to
the Credit Agreements and Waiver
Dated as of July 26, 2002
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Reference is made to (i) that certain 3-Year Credit Agreement, as
amended, dated as of October 29, 1999 (the "3-Year Agreement") and (ii) that
certain 364-Day Credit Agreement, as amended, dated as of October 29, 1999 (the
"364-Day Agreement" and collectively with the 3-Year Agreement, the "Credit
Agreements"), among you (the "Bank") and Newport Corporation (the "Company").
Whereas, the Company has requested that the Bank waive certain events
of default under the Credit Agreements pursuant to the Company's failure to meet
certain financial covenants and make certain other amendments to the Credit
Agreements, and the Bank is willing to do so subject to the terms and conditions
hereinafter set forth;
Now, Therefore, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
thereby, covenant and agree as follows:
Section 1. Amendments.
Section 1.1. General. All terms used herein which are not otherwise
specifically defined herein shall have the same meaning herein as respectively
defined in the Credit Agreements as further amended hereby.
Section 1.2. Revolving Credit of the 3-Year Agreement. Section 1.1 of the
3-Year Agreement shall be hereby amended by deleting the amount "$10,000,000" in
line 8 thereof and substituting in its place the amount of "$5,000,000"
therefor.
Section 1.3. Revolving Credit Loans of the 3-Year Agreement. Section 1.2 of
the 3-Year Agreement shall be amended by deleting the amount "$10,000,000" in
line 6 thereof and substituting in its place the amount of "$5,000,000"
therefor.
Section 1.4. EBITDA Definitions. The definition of "EBITDA" in Section 4.1
of the Credit Agreements shall be and is hereby amended as follows:
"EBITDA" means, with reference to any period, Net
Income for such period plus all amounts deducted in arriving at
such Net Income amount in respect of (a) Interest Expense for
such period, plus (b) federal, state and local income taxes for
such period, plus (c) all amounts properly charged for
depreciation of fixed assets and amortization of intangible
assets during such period on the books of the Borrower and its
Subsidiaries; provided, however, that notwithstanding anything
in this definition to the contrary: (a) any gains on sales or
other dispositions of assets of the Company and its
Subsidiaries outside the ordinary course of their business
shall be given no effect in determining EBITDA; (b) interest
income as determined according to GAAP shall be given no effect
in determining EBITDA; and (c) all amounts resulting from
discontinued operations of the Company during fiscal year 2002
shall be given no effect in determining EBITDA.
Section 1.5. Notices. Section 9.8 of each of the Credit Agreements
shall be amended and restated in their entirety to read as follows:
Section 9.8. Notices. Except as otherwise specified
herein, all notices hereunder shall be in writing (including
cable or telecopy) and shall be given to the relevant party at
its address or telecopier number set forth below, or such other
address or telecopier number as such party may hereafter
specify by notice to the other given by United States certified
or registered mail, by telecopy or by other telecommunication
device capable of creating a written record of such notice and
its receipt. Notices hereunder shall be addressed:
to the Company at:
Newport Corporation
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Mr. Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
to the Bank at:
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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With a copy to:
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Each such notice, request or other communication shall be
effective (i) if given by telecopier, when such telecopy is
transmitted to the telecopier number specified in this Section
9.8 and a confirmation of such telecopy has been received by
the sender, (ii) if given by telex, when such telex is
transmitted to the telex number specified in this Section 9.8
and the answer back is received by sender, (iii) if given by
mail, five (5) days after such communication is deposited in
the mail, certified or registered with return receipt
requested, addressed as aforesaid or (iv) if given by any other
means, when delivered at the addresses specified in this
Section 9.8; provided that any notice given pursuant to Section
1 or Section 2 hereof shall be effective only upon receipt.
Section 2. Waiver.
(a) During the period ending June 30, 2002, the Company was in
violation of the financial covenants in Sections 7.8, 7.10 and 7.11 of the
Credit Agreements (the "Violations"). Subject to the satisfaction of the
conditions precedent set forth in Section 3 below, the Bank hereby acknowledges
the Violations described above and waives any Default or Event of Default that
exist under Sections 7.8, 7.10 and 7.11 of the Credit Agreements by virtue of
the Violations.
(b) The acknowledgement and waiver under this Section 2 shall be
limited specifically as written herein and shall be solely an acknowledgement
and waiver to the above described Violations, and it shall not constitute an
acknowledgement to any other transaction or a waiver of the application of
Sections 7.8, 7.10 and 7.11 of the Credit Agreements or any other transaction
governed thereby after giving effect to this Agreement.
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Section 3. Conditions Precedent.
The effectiveness of this Agreement is subject to the satisfaction of
all of the following conditions precedent:
Section 3.1. The Company and the Bank shall have executed and
delivered this Agreement.
Section 3.2. Legal matters incident to the execution and delivery
of this Agreement shall be satisfactory to the Bank and its counsel.
Section 4. Representations.
In order to induce the Bank to execute and deliver this Agreement, the
Company hereby represents to the Bank that as of the date hereof, and after
giving effect to the amendments and waivers set forth above, the representations
and warranties set forth in Section 5 of the Credit Agreements are and shall be
and remain true and correct (except that the representations contained in (i)
Section 5.5 shall be deemed to refer to the most recent financial statements of
the Company delivered to the Bank and (ii) Section 5.6 shall be deemed to refer
to the date of the most recent financial statements of the Company delivered to
the Bank) and the Company is in compliance with the terms and conditions of the
Credit Agreements and no Default or Event of Default has occurred and is
continuing under the Credit Agreements or shall result after giving effect to
this Agreement.
Section 5. Miscellaneous.
Section 5.1. Except as specifically amended herein, the Credit
Agreements shall continue in full force and effect in accordance with its
original terms. Reference to this specific Agreement need not be made in the
Credit Agreements, each respective Note, or any other instrument or document
executed in connection therewith, or in any certificate, letter or communication
issued or made pursuant to or with respect to the Credit Agreements, any
reference in any of such items to the Credit Agreements being sufficient to
refer to the Credit Agreements as amended hereby.
Section 5.2. The Company agrees to pay on demand all costs and
expenses of or incurred by the Bank in connection with the negotiation,
preparation, execution and delivery of this Agreement, including the fees and
expenses of counsel for the Bank.
Section 5.3. This Agreement may be executed in any number of
counterparts, and by the different parties on different counterpart signature
pages, all of which taken together shall constitute one and the same agreement.
Any of the parties hereto may execute this Agreement by signing any such
counterpart and each of such counterparts shall for all purposes be deemed to be
an original. This Agreement shall be governed by the internal laws of the State
of California.
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In Witness Whereof, the parties hereto, by their officers thereunto
duly authorized, have executed and delivered this Agreement as of the date first
above written.
Newport Corporation
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President of Finance
and Treasurer
This Agreement is accepted and agreed to as of the date first above
written.
ABN AMRO Bank N.V.
By /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
Diversified Industries Central
By /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
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