SECOND LOAN AGREEMENT
This Loan Agreement is made and entered into this 7th day of May, 1998
by and between Coherent, Inc., a Delaware corporation ("Coherent"), and Palomar
Medical Technologies, Inc., a Delaware corporation ("PMTI").
Subject to the terms and conditions contained herein, the parties agree
as follows:
1. LOAN. At Coherent's sole election and discretion, Coherent shall
loan PMTI from time to time amounts to be agreed upon between them, to help
finance PMTI's working capital requirements (the "Loans"), which loans shall be
evidenced by a promissory notes in the form set forth in Exhibit A (the "Note").
The parties agree that the outstanding loan balance as of the date hereof is
$1,780,315.22
2. PAYMENT. In accordance with the Sales Agency, Development and
License Agreement entered into between parties on November 17, 1997 (the
"Agreement"), Coherent will be using its reasonable best efforts to collect
PMTI's accounts receivable that are Collateral for the Note. As such accounts
receivable are collected by Coherent, the amounts due PMTI under the Agreement,
less a one-time 1.5% interest charge, shall be credited against the outstanding
balance of the Note.
3. SECURITY INTEREST. PMTI hereby creates and grants to Coherent a
security interest in the collateral described in Section 3 hereof to secure the
payment and performance of the following obligations of PMTI to Coherent:
(a) Payment of the indebtedness evidenced by the Note and any and all
modifications, extensions or renewals thereof,
(b) Performance and discharge of each and every obligation, covenant,
condition and agreement of PMTI herein contained.
4. COLLATERAL. The collateral in which the security interest is created
(the "Collateral") shall consist of those PMTI's accounts receivable identified
on Schedule A to the Note where Coherent has acted as PMTI's sales agent
pursuant to the Agreement, together with all proceeds thereto.
5. RECORDING. PMTI will execute, deliver and cause to be recorded or
filed in the manner and place required by law, any document or instrument that
may be requested by Coherent, including financing statements or other
instruments of similar character, to perfect and protect the lien of this
Security Agreement upon any and all of the Collateral.
6. EVENTS OF DEFAULT. An Event of Default (as hereinafter defined) of a
Note issued under this Agreement shall cause the Note to be immediately due and
payable. As used herein, an "Event of Default" shall be any of the following:
(a) The failure of PMTI to punctually and properly pay the indebtedness
evidenced by the Note in accordance with its terms.
(b) The failure of PMTI punctually and properly to observe, keep or
perform any covenant, agreement or condition required to be observed, kept or
performed by this Agreement.
(c) The failure of PMTI to make due and punctual performance of any
covenant, obligation or agreement in any note, bond, indenture, loan agreement,
note agreement, mortgage, security agreement or other instrument evidencing or
related thereto which constitutes an event of default under any such instrument
(or would give the holder of such instrument the right to accelerate payment of
such obligation), or such obligation is not paid as to principal or interest
when due, and such default shall continue for more than the period of notice
and/or grace, if any, therein specified and shall not have been waived or
otherwise cured.
7. RIGHTS OF SECURED PARTY. Coherent shall have all the rights as a
secured party under the laws of California, including the right to sell any part
of the Collateral at a public or private sale or bid as a purchaser of the
Collateral.
8. APPLICATION OF PROCEEDS OF SALE. The proceeds of the sale of any
Collateral sold pursuant to Section 6 hereof
shall be applied as follows:
FIRST: To the payment of costs and expenses of such sale,
including the fees and out-of-pocket expenses of counsel employed in connection
therewith, and the payment of all other costs and expenses incurred by Coherent
and in connection with the administration and enforcement of this Agreement;
SECOND: To the payment and discharge in full of all
obligations described in Section 3 hereof including, without limitation, sums
then owing in respect of the Note; and
THIRD: The balance (if any) of such proceeds shall be paid to
PMTI, its successors and assigns, or as a
court of competent jurisdiction may direct.
9. COVENANTS OF PMTI. PMTI covenants and warrants that, unless
compliance is waived by Coherent in writing:
(a) PMTI will immediately notify Coherent of any change in PMTI's name,
identity or corporate structure.
(b) PMTI will not further encumber, sell, contract for sale or
otherwise dispose of any of the Collateral until such time as the security
interest created by this Agreement has terminated.
(e) PMTI will take all actions necessary or appropriate to preserve and
defend its title to the Collateral and the validity of the lien created by this
Agreement.
(f) PMTI will promptly notify Coherent in writing of any event which
materially and adversely affects the ability of PMTI or Coherent to dispose of
the Collateral, or the rights or remedies of Coherent in relation thereto,
including, but not limited to, the levy of any legal process against the
Collateral.
(g) PMTI will, without expense to Coherent, do, execute, acknowledge
and deliver, or cause to be done, executed, acknowledged and delivered, all such
further acts and instruments as Coherent shall from time to time require in
order to facilitate the performance of this Agreement.
10. MISCELLANEOUS.
(a) No failure or delay by Coherent in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, and no single or partial
exercise thereof shall preclude any other of further exercise of the exercise of
any other right, power or privilege.
(b) Should any one or more of the provisions hereof be determined to be
illegal or unenforceable, all other provisions hereof shall be give effect
separately therefrom and shall not be affected thereby.
(c) The security interest created by this Agreement shall fully
terminate immediately upon the full and complete satisfaction and discharge of
all of the Obligations set forth in paragraph 3 hereof. Upon such termination,
Coherent shall execute and deliver to PMTI such termination statements and other
instruments of release of such security interest as PMTI may reasonably require.
(d) All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered or
mailed first class, postage prepaid, to the parties at the following addresses
(or such other address as shall be given in writing by either party to the
other):
To Coherent:
Coherent, Inc.
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attn: General Counsel
Facsimile No.: (000) 000-0000
To PMTI:
Palomar Medical Technologies, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: President
Facsimile No.: 000-000-0000
(e) This Agreement and security interest created hereby shall inure to
the benefit of the Coherent, its successor and assigns and any transferee of any
of the Obligations secured hereby, and shall be binding upon PMTI and his
successors and heirs.
(f) The laws of the State of California shall govern the validity of
this Agreement, the construction of its terms and the interpretation of the
rights and duties of the parties.
The foregoing Agreement is hereby executed as of the date first above
written.
COHERENT, INC.
a Delaware corporation
By: /s/
------------------------------
Xxxxx X. Xxxxxx
Title: Sr. VP and General Counsel
PALOMAR MEDICAL TECHNOLOGIES, INC.
a Delaware corporation
By: /s/
-------------------------------
Xxxxxxx X. Xxxxxxxx
Title: Vice President of Finance
PROMISSORY NOTE
$1,780,315.22 Santa Clara, California
May 7, 1998
FOR VALUE RECEIVED, the undersigned, Palomar Medical Technologies,
Inc., a Delaware corporation ("PMTI"), promises to pay to Coherent, Inc., a
Delaware corporation ("Coherent"), or order, the principal sum of ONE MILLION
SEVEN HUNDRED EIGHTY THOUSAND THREE HUNDRED FIFTEEN DOLLARS AND TWENTY-TWO CENTS
($1,780,315.22).
In accordance with the Sales Agency, Development and License Agreement
entered into between parties on November 17, 1997 (the "Agreement"), Coherent
will be using its reasonable best efforts to collect PMTI's accounts receivable
that collateralize this note. As such accounts receivable are collected, the
amounts due PMTI under the Agreement, less a one-time 1.5% interest charge,
shall be credited against the outstanding balance of this Note. This Note shall
be immediately due and payable in the Event of Default (as defined in the
Agreement).
PMTI shall reimburse Coherent for all costs and expenses incurred by it
and shall pay the reasonable fees and disbursements of counsel to Coherent in
connection with the enforcement of Coherent's rights hereunder.
No amendment, modification or waiver of any provision of this Note nor
consent to any departure by PMTI therefrom shall be effective unless the same
shall be in writing and signed by Coherent and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given.
PMTI hereby waives any requirement of notice of dishonor, notice of
protest and protest.
This Note shall be deemed to be a contract made under the laws of the
State of California and shall be construed in accordance with the laws of said
State. This Note shall be binding upon PMTI and its successors and assigns and
the terms hereof shall inure to the benefit of Coherent and its successors and
assigns, including subsequent holders hereof. The holding of any provision of
this Note to be invalid or unenforceable by a court of competent jurisdiction
shall not affect any other provisions and the other provisions of this Note
shall remain in full force and effect.
This Note is secured with certain collateral pursuant to the terms of
an agreement between the undersigned and Coherent, Inc. dated May 7, 1998. A
description of the accounts receivables constituting the collateral for this
Note is set forth on the attached Schedule A.
PALOMAR MEDICAL TECHNOLOGIES, INC.
By: /s/
-----------------------------
Xxxxxxx X. Xxxxxxxx
Vice President of Finance
SCHEDULE A
Description of Accounts Receivables
NAME OF CUSTOMER AMOUNT OF A/R DESCRIPTION OF EQUIPMENT DATE DUE DATE
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