EXHIBIT 10.13
Loan No. 1440
SECOND MODIFICATION AGREEMENT
SECURED LOAN
THIS SECOND MODIFICATION AGREEMENT ("Agreement") dated May 30, 2003 is entered
into by and between XXXXX FARGO BANK, NATIONAL ASSOCIATION ("Lender"), and
COMMUNICATIONS & POWER INDUSTRIES HOLDING CORPORATION, a Delaware corporation
("Borrower").
R E C I T A L S
A. Pursuant to the terms of a loan agreement between Borrower and Lender
dated December 22, 2000 ("Loan Agreement"), Lender made a loan to Borrower
in the principal amount of EIGHTEEN MILLION AND NO/100THS DOLLARS
($18,000,000.00) ("Loan"). The Loan is evidenced by a promissory note
dated as of the date of the Loan Agreement, executed by Borrower in favor
of Lender, in the principal amount of the Loan ("Note"), and is further
evidenced by the documents described in the Loan Agreement as "Loan
Documents". The Note is secured by, among other things, a deed of trust
("Deed of Trust") dated December 22, 2000, executed by Borrower, as
Trustor, to American Securities Company, as Trustee, in favor of Lender,
as Beneficiary. The Deed of Trust was recorded December 22, 2000, as
Document No. 2000-162764, in the Official Records of San Mateo County,
California.
B. The Note, Deed of Trust and Loan Agreement have been previously amended
and modified by modification agreements dated: June 1, 2002 (the "First
Modification").
C. The outstanding principal balance under the Loan as of the date hereof is
SEVENTEEN MILLION FIVE HUNDRED THOUSAND AND NO/100THS ($17,500,000.00).
D. The Note, Deed of Trust, Loan Agreement, this Agreement, the other
documents described in the Loan Agreement as "Loan Documents", together
with all modifications and amendments thereto and any document required
hereunder, are collectively referred to herein as the "Loan Documents".
E. By this Agreement, Borrower and Lender intend to modify and amend certain
terms and provisions of the Loan Documents.
NOW, THEREFORE, Borrower and Lender agree as follows:
1. CONDITIONS PRECEDENT. The following are conditions precedent to Lender's
obligations under this Agreement:
1.1 If required by Lender, receipt and approval by Lender of a date down
to Title Policy No. SM-461651 dated December 22, 2000, issued by
First American Title Insurance Company ("Title Company") and
assurance acceptable to Lender, including, without limitation, CLTA
Endorsement No. 110.5, without deletion or exception other than
those expressly approved by Lender in writing, that the priority and
validity of the Deed of Trust has not been and will not be impaired
by this Agreement or the transactions contemplated hereby;
1.2 Receipt by Lender of the executed originals of this Agreement, the
short form of this Agreement (if any) and any and all other
documents and agreements which are required by this Agreement or by
any other Loan Document, each in form and content acceptable to
Lender;
1.3 Recordation in the Official Records of the County where the Property
is located of (i) the short form of this Agreement (if any), and
(ii) any other documents which are required to be recorded by this
Agreement or by any other Loan Document (if any);
1.4 Reimbursement to Lender by Borrower of Lender's costs and expenses
incurred in connection with this Agreement and the transactions
contemplated hereby, including, without limitation, title insurance
costs, recording fees, attorneys' fees, appraisal, engineers' and
inspection fees and documentation costs and charges, whether such
services are furnished by Lender's employees or agents or by
independent contractors;
1.5 The representations and warranties contained in this Agreement are
true and correct;
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1.6 All payments due and owing to Lender under the Loan Documents have
been paid current as of the effective date of this Agreement;
1.7 The payment to Lender of an extension fee in the amount of
$43,750.00; and
1.8 The payment to Lender of a documentation fee in the amount of
$500.00.
2. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and warrants
that no Default, breach or failure of condition has occurred, or would
exist with notice or the lapse of time or both, under any of the Loan
Documents (as modified by this Agreement) and that all representations and
warranties herein and in the other Loan Documents are true and correct,
which representations and warranties shall survive execution of this
Agreement.
3. MODIFICATION OF LOAN DOCUMENTS. The Loan Documents are hereby supplemented
and modified to incorporate the following, which shall supersede and
prevail over any conflicting provisions of the Loan Documents:
3.1 EXTENSION OF MATURITY DATE. Effective as of June 1, 2003, the
Maturity Date recited in the Note, as amended, is hereby extended to
January 31, 2004.
3.2 INTEREST. Except as otherwise provided in this Agreement, the
interest rate recited and calculated in the manner provided for in
the Note and Loan Documents shall remain unchanged. Borrower shall
continue to pay interest at the time and place and in the manner
provided in the Note and Loan Documents, as amended by this
Agreement.
4. FORMATION AND ORGANIZATIONAL DOCUMENTS. Borrower has previously delivered
to Lender all of the relevant formation and organizational documents of
Borrower, of the partners or joint venturers of Borrower (if any), and of
all guarantors of the Loan (if any), and all such formation documents
remain in full force and effect and have not been amended or modified
since they were delivered to Lender. Borrower hereby certifies that: (i)
the above documents are all of the relevant formation and organizational
documents of Borrower; (ii) they remain in full force and effect; and
(iii) they have not been amended or modified since they were previously
delivered to Lender.
5. HAZARDOUS MATERIALS; CCP SECTION 726.5; SECTION 736. Without in any way
limiting any other provision of this Agreement, Borrower expressly
reaffirms as of the date hereof, and continuing hereafter: (i) each and
every representation and warranty in the Loan Documents respecting
"Hazardous Materials"; and (ii) each and every covenant and indemnity in
the Loan Documents respecting "Hazardous Materials". In addition, Borrower
and Lender agree that: (i) this Section is intended as Lender's written
request for information (and Borrower's response) concerning the
environmental condition of the real property security under the terms of
California Code of Civil Procedure Section 726.5; and (ii) each
representation and/or covenant in this Agreement or any other Loan
Document (together with any indemnity applicable to a breach of any such
representation and/or covenant) with respect to the environmental
condition of the real property security is intended by Lender and Borrower
to be an "environmental provision" for purposes of California Code of
Civil Procedure Section 736.
6. WAIVERS. In further consideration of Lender entering into this Agreement,
Borrower waives, with respect to the Loan, any and all rights to which
Borrower is or may be entitled pursuant to Section 580a (the so-called
"Fair Market Antideficiency Rule"), 580d (the so-called "Private Sale
Antideficiency Rule") and 726 (the so-called "One Form of Action Rule") of
the California Code of Civil Procedure, as amended or recodified from time
to time, together with any other antideficiency or similar laws which
limit, qualify or reduce Borrower's obligations under the Loan Documents.
7. NON-IMPAIRMENT. Except as expressly provided herein, nothing in this
Agreement shall alter or affect any provision, condition, or covenant
contained in the Note or other Loan Document or affect or impair any
rights, powers, or remedies of Lender, it being the intent of the parties
hereto that the provisions of the Note and other Loan Documents shall
continue in full force and effect except as expressly modified hereby.
8. MISCELLANEOUS. This Agreement and the other Loan Documents shall be
governed by and interpreted in accordance with the laws of the State of
California, except if preempted by federal law. In any action brought or
arising out of this Agreement or the Loan Documents, Borrower, and the
general partners and joint venturers of Borrower, hereby consent to the
jurisdiction of any federal or state court having proper venue within the
State of
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California and also consent to the service of process by any means
authorized by California or federal law. The headings used in this
Agreement are for convenience only and shall be disregarded in
interpreting the substantive provisions of this Agreement. All capitalized
terms used herein, which are not defined herein, shall have the meanings
given to them in the other Loan Documents. Time is of the essence of each
term of the Loan Documents, including this Agreement. If any provision of
this Agreement or any of the other Loan Documents shall be determined by a
court of competent jurisdiction to be invalid, illegal or unenforceable,
that portion shall be deemed severed from this Agreement and the remaining
parts shall remain in full force as though the invalid, illegal, or
unenforceable portion had never been a part thereof.
9. INTEGRATION; INTERPRETATION. The Loan Documents, including this Agreement,
contain or expressly incorporate by reference the entire agreement of the
parties with respect to the matters contemplated therein and supersede all
prior negotiations or agreements, written or oral. The Loan Documents
shall not be modified except by written instrument executed by all
parties. Any reference to the Loan Documents includes any amendments,
renewals or extensions now or hereafter approved by Lender in writing.
10. EXECUTION IN COUNTERPARTS. To facilitate execution, this document may be
executed in as many counterparts as may be convenient or required. It
shall not be necessary that the signature of, or on behalf of, each party,
or that the signature of all persons required to bind any party, appear on
each counterpart. All counterparts shall collectively constitute a single
document. It shall not be necessary in making proof of this document to
produce or account for more than a single counterpart containing the
respective signatures of, or on behalf of, each of the parties hereto. Any
signature page to any counterpart may be detached from such counterpart
without impairing the legal effect of the signatures thereon and
thereafter attached to another counterpart identical thereto except having
attached to it additional signature pages.
IN WITNESS WHEREOF, Borrower and Lender have caused this Agreement to be duly
executed as of the date first above written.
"LENDER"
XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By: __________________________________
Xxx Xxxxxxxxx
Its: Vice President
"BORROWER"
COMMUNICATIONS & POWER INDUSTRIES
HOLDING CORPORATION,
a Delaware corporation
By: _____________________________________
Its: _____________________________________
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JUNIOR LIENOR'S CONSENT AND SUBORDINATION AGREEMENT
NOTICE: THIS JUNIOR LIENOR CONSENT AND SUBORDINATION AGREEMENT RESULTS IN
YOUR SECURITY INTEREST IN THE PROPERTY REMAINING SUBJECT TO AND OF A LOWER
PRIORITY THAN THE LIEN OF THE DEED OF TRUST AS MODIFIED BY THE FOREGOING
SECOND MODIFICATION AGREEMENT.
The undersigned ("Junior Lienor"), as owner and holder of a security interest
("Junior Security Interest") evidenced by that certain unrecorded Lease, which
is junior, subordinate and subject to the terms, covenants, conditions and
restrictions of the Deed of Trust, as modified by the foregoing Modification
Agreement, hereby acknowledges its consent to the terms and provisions of the
foregoing Second Modification Agreement and the transactions contemplated
thereby. The undersigned further reaffirms the full force and effectiveness of
that certain Subordination Agreement, dated December 22, 2000, between the
undersigned and Communications & Power Industries Holding Corporation, a
Delaware corporation and acknowledges that the Junior Security Interest is
junior, subordinate and subject to the Deed of Trust, as modified by the
foregoing Second Modification Agreement.
NOTICE: THE LOAN DOCUMENTS MAY CONTAIN A PROVISION WHICH MAY ALLOW THE
PERSON OBLIGATED ON YOUR REAL PROPERTY SECURITY TO EXPEND A PORTION OF THE
LOAN FOR OTHER PURPOSES THAN IMPROVEMENT OF THE PROPERTY.
Agreed and Acknowledged:
Dated as of: May 30, 2003 "JUNIOR LIENOR"
COMMUNICATIONS & POWER INDUSTRIES, INC.,
a Delaware corporation
By: _____________________________________
Its: _____________________________________
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HAZARDOUS INDEMNITOR'S CONSENT
The undersigned ("Indemnitor") consents to the foregoing Second Modification
Agreement and the transactions contemplated thereby and reaffirms its
obligations under the Unsecured Hazardous Materials Indemnity Agreement
("Indemnity") dated December 22, 2000, and its waivers, as set forth in the
Indemnity, of each and every one of the possible defenses to such obligations.
Indemnitor further reaffirms that its obligations under the Indemnity are
separate and distinct from Borrower's obligations.
Indemnitor, as indemnitor under the Indemnity, understands that the Lender's
exercise of a non-judicial foreclosure sale under the subject Deed of Trust
will, by virtue of California Code of Civil Procedure Section 580d, result in
the destruction of any subrogation, reimbursement or contribution rights which
Indemnitor, as indemnitor under the Indemnity, may have against the Borrower.
Indemnitor, as indemnitor under the Indemnity, further understands that such
exercise by Lender and the consequent destruction of subrogation, reimbursement
or contribution rights would constitute a defense to the enforcement of the
Indemnity by Lender. With this explicit understanding, Indemnitor, as indemnitor
under the Indemnity, nevertheless specifically waives any and all rights and
defenses arising out of an election of remedies by Lender, even though that
election of remedies, such as a nonjudicial foreclosure with respect to security
for a guaranteed obligation, has destroyed Indemnitor's, as indemnitor under the
Indemnity, rights of subrogation and reimbursement against the principal by the
operation of Section 580d of the California Code of Civil Procedure or
otherwise. Indemnitor, as indemnitor under the Indemnity, further specifically
waives any and all rights and defenses that Indemnitor, as indemnitor under the
Indemnity, may have because Borrower's debt is secured by real property; this
means, among other things, that: (1) Lender may collect from Indemnitor, as
indemnitor under the Indemnity, without first foreclosing on any real or
personal property collateral pledged by Borrower; (2) if Lender forecloses on
any real property collateral pledged by Borrower, then (A) the amount of the
debt may be reduced only by the price for which that collateral is sold at the
foreclosure sale, even if the collateral is worth more than the sale price, and
(B) Lender may collect from Indemnitor, as indemnitor under the Indemnity, even
if Lender, by foreclosing on the real property collateral, has destroyed any
right Indemnitor, as indemnitor under the Indemnity, may have to collect from
Borrower. The foregoing sentence is an unconditional and irrevocable waiver of
any rights and defenses Indemnitor, as indemnitor under the Indemnity, may have
because Borrower's debt is secured by real property. These rights and defenses
being waived by Indemnitor, as indemnitor under the Indemnity, include, but are
not limited to, any rights or defenses based upon Section 580a, 580d or 726 of
the California Code of Civil Procedure. This understanding and waiver is made in
addition to and not in limitation of any of the existing terms and conditions of
the Indemnity.
AGREED:
Dated as of: May 30, 2003 "INDEMNITOR"
COMMUNICATIONS & POWER INDUSTRIES HOLDING
CORPORATION, a Delaware corporation
By: ____________________________________
Name: ____________________________________
Its: ____________________________________
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