EXHIBIT 10.12
NEWPORT CORPORATION
FIRST AMENDMENT TO CREDIT AGREEMENT
ABN AMRO Bank N.V., Los Angeles International
Branch
Los Angeles, California
Ladies and Gentlemen:
Reference is hereby made to that certain Credit Agreement dated as of
December 20, 1995 (the "Credit Agreement") between the undersigned, Newport
Corporation, a Nevada corporation (the "Company") and you (the "Bank"). All
capitalized terms used herein without definition shall have the same meanings
herein as such terms have in the Credit Agreement.
The Company has requested that the Bank increase the amount of the
Revolving Credit under the Credit Agreement from $15,000,000 to $20,000,000,
extend the maturity date of the Revolving Credit under the Credit Agreement and
make certain other amendments to the Credit Agreement, and the Bank is willing
to do so under the terms and conditions set forth in this Amendment.
1. Amendments.
Upon your acceptance hereof in the space provided for that purpose below,
the Credit Agreement shall be and hereby is amended as follows:
(a) Sections 1.1 and 1.2 of the Credit Agreement shall each be amended by
deleting the amount "$15,000,000" appearing therein and by substituting therefor
the amount "$20,000,000".
(b) The first sentence of Section 2.1(b) of the Credit Agreement shall be
amended in its entirety and as so amended shall read as follows:
"The Domestic Rate Portion shall bear interest at the rate per annum
equal to the Domestic Rate as in effect from time to time, provided that if
the Domestic Rate Portion or any part thereof is not paid when due (whether
by lapse of time, acceleration or otherwise) such Portion shall bear
interest, whether before or after judgment, until payment in full thereof
at the rate per annum determined by adding 2% to the interest rate which
would otherwise be applicable thereto from time to time."
(c) The first sentence of Section 2.1(c) of the Credit Agreement shall be
amended in its entirety and as so amended shall read as follows:
"Each LIBOR Portion shall bear interest for each Interest Period
selected therefor at a rate per annum determined by adding 1% to the
Adjusted LIBOR for such Interest Period, provided that if any LIBOR Portion
is not paid when due (whether by lapse of time, acceleration or otherwise)
such Portion shall bear interest, whether before or after judgment, until
payment in full thereof through the end of the Interest Period then
applicable thereto at the rate per annum determined by adding 2% to the
interest rate which would otherwise be applicable thereto, and effective at
the end of such Interest Period such LIBOR Portion shall automatically be
converted into and added to the Domestic Rate Portion and shall thereafter
bear interest at the interest rate applicable to the Domestic Rate Portion
after default."
(d) Section 3.1(b) of the Credit Agreement shall be amended by deleting
"3/8 of 1%" appearing therein and by substituting therefor "1/4 of 1%" and shall
be further amended by deleting the word "Commitment" contained in the fourth
line thereof and by substituting "the lesser of (i) the Borrowing Base or (ii)
the Commitment" therefor.
(e) Section 3.1(c) of the Credit Agreement shall be amended by deleting
"1.50%" appearing therein and by substituting therefor "1.00%".
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(f) Section 6.4 of the Credit Agreement shall be amended by adding the
phrase "or guarantee requirements in connection with Permitted Indebtedness of
the Company or its Subsidiaries hereunder" after the word "requirements"
appearing in the fifth line of such Section.
(g) Section 8.15 of the Credit Agreement shall be amended by deleting
subpart (iv) of subsection (g) thereof, by deleting the period appearing at the
end of subsection (i) thereof and replacing such period with "; and", and by
adding a new subsection (j) thereto which reads as follows:
"(j) investments in addition to those otherwise permitted under
this Section 8.15 of a type described on Exhibit G hereto which bear the
equivalent of at least A-1 or AA by Standard & Poor's Corporation and
mature within one year."
(h) Section 8.16 of the Credit Agreement shall be amended by deleting the
phrase "5% of its tangible assets" appearing therein and by substituting
therefor "10% of the Company's tangible assets".
(i) Section 8.17 shall be amended by adding the phrase "except to another
Subsidiary" immediately preceding the semicolon appearing in the third line of
such Section.
(j) Section 8.23 shall be amended by deleting the phrase "form or"
appearing in such Section.
(k) Section 9.1(a) shall be amended in its entirety and as so amended
shall read as follows:
"(a) default in the payment of any principal of any Obligation or
any principal of any other indebtedness or obligation (whether direct,
contingent or otherwise) of the Company owing to the Bank when due, whether
at the stated maturity thereof or at any time provided for in this
Agreement or default for a period of ten (10) days in the payment when due
of any interest or other Obligation payable
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by the Company hereunder or under any other Loan Document (whether at the
stated maturity thereof or at any other time provided for in this
Agreement) or default for a period of ten (10) days in the payment when due
of any interest or other amount payable in respect of any other
indebtedness or obligation (whether direct, contingent or otherwise) of the
Company owing to the Bank; or"
(l) The introductory language in Section 9.1 of the Credit Agreement
shall be amended in its entirety and as so amended shall read as follows:
"Any one or more of the following (unless waived in writing by the
Bank) shall constitute an "Event of Default" hereunder:"
(m) Section 9.1(i) of the Credit Agreement shall be amended by deleting
"Subsidiary" therein and by substituting therefor "Restricted Subsidiary".
(n) Exhibit A to the Credit Agreement shall be amended in its entirety
and as so amended shall read as set forth on Exhibit A attached hereto and made
a part hereof.
(o) The Credit Agreement shall be amended by adding a new Exhibit G
thereto which reads as set forth on Exhibit G hereto.
(p) All references in the Credit Agreement to "Note" shall be deemed
references to the replacement Revolving Credit Note of the Company issued
pursuant to Section 2(a) of this Amendment.
2. Conditions Precedent.
The effectiveness of this Amendment is subject to the satisfaction of all
of the following conditions precedent:
(a) The Company and the Bank shall have executed and delivered this
Amendment and the Bank shall have received a duly executed replacement
Revolving Credit Note in the form of Exhibit A to the Credit Agreement as
amended hereby.
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(b) The Bank shall have received copies (executed or certified, as
may be appropriate) of all legal documents or proceedings taken in
connection with the execution and delivery of this Amendment to the extent
the Bank or its counsel may reasonably request.
(c) Legal matters incident to the execution and delivery of this
Amendment shall be satisfactory to the Bank and its counsel; and the Bank
shall have received the favorable written opinion of counsel for the
Company in form and substance satisfactory to the Bank and its counsel.
3. Representations.
In order to induce the Bank to execute and deliver this Amendment, the
Company hereby represents to the Bank that as of the date hereof, the
representations and warranties set forth in Section 6 of the Credit Agreement
are and shall be and remain true and correct (except that the representations
contained in Section 6.5 shall be deemed to refer to the most recent financial
statements of the Company delivered to the Bank) and the Company is in full
compliance with all of the terms and conditions of the Credit Agreement and no
Default or Event of Default has occurred and is continuing under the Credit
Agreement or shall result after giving effect to this Amendment.
4. Miscellaneous.
(a) Except as specifically amended herein, the Credit Agreement shall
continue in full force and effect in accordance with its original terms.
Reference to this specific Amendment need not be made in the Credit Agreement,
the 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 Agreement, any reference in any of such items to the
Credit Agreement being sufficient to refer to the Credit Agreement as amended
hereby.
(b) The Company agrees to pay on demand all costs and expenses of or
incurred by the Bank in connection with the
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negotiation, preparation, execution and delivery of this Amendment, including
the fees and expenses of counsel for the Bank.
(c) This Amendment 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 Amendment by signing any such counterpart and each of
such counterparts shall for all purposes be deemed to be an original. This
Amendment shall be governed by the internal laws of the State of California.
Dated as of October 31, 1996.
Newport Corporation
By
Its_______________________________
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Accepted and agreed to in Los Angeles, California as of the date and year
last above written.
ABN AMRO Bank N.V., Los
Angeles International Branch
By ABN AMRO North America, Inc.,
its Agent
By
Its__________________________
By
Its__________________________
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EXHIBIT A
NEWPORT CORPORATION
REVOLVING CREDIT NOTE
Chicago, Illinois
$20,000,000 October 31, 1996
On the Termination Date, for value received, the undersigned, Newport
Corporation, a Nevada corporation (the "Company"), hereby promises to pay to the
order of ABN AMRO Bank N.V. (the "Bank") at its office at 000 Xxxxx Xxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, the principal sum of (i) Twenty Million and
no/100 Dollars ($20,000,000), or (ii) such lesser amount as may at the time of
the maturity hereof, whether by acceleration or otherwise, be the aggregate
unpaid principal amount of all Loans owing from the Company to the Bank under
the Revolving Credit provided for in the Credit Agreement hereinafter mentioned.
This Note evidences Loans made and to be made to the Company by the Bank
under the Revolving Credit provided for under that certain Credit Agreement
dated as of December 20, 1995 as amended between the Company and the Bank (said
Credit Agreement, as the same may be amended, modified or restated from time to
time, being referred to herein as the "Credit Agreement"), and the Company
hereby promises to pay interest at the office described above on such Loans
evidenced hereby at the rates and at the times and in the manner specified
therefor in the Credit Agreement.
Each Loan made under the Revolving Credit against this Note, any repayment
of principal hereon, the status of each such Loan from time to time as part of
the Domestic Rate Portion or a LIBOR Portion and, in the case of any Fixed Rate
Portion, the interest rate and Interest Period applicable thereto shall be
endorsed by the holder hereof on a schedule to this Note or recorded on the
books and records of the holder hereof (provided that such entries shall be
endorsed on a schedule to this Note
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prior to any negotiation hereof). The Company agrees that in any action or
proceeding instituted to collect or enforce collection of this Note, the entries
endorsed on a schedule to this Note or recorded on the books and records of the
holder hereof shall be prima facie evidence of the unpaid principal balance of
this Note, the status of each Loan from time to time as part of the Domestic
Rate Portion or a LIBOR Portion and, in the case of any Fixed Rate Portion, the
interest rate and Interest Period applicable thereto.
This Note is issued by the Company under the terms and provisions of the
Credit Agreement and this Note and the holder hereof are entitled to all of the
benefits and security provided for thereby or referred to therein, to which
reference is hereby made for a statement thereof. This Note may be declared to
be, or be and become, due prior to its expressed maturity, voluntary prepayments
may be made hereon, and certain prepayments are required to be made hereon, all
in the events, on the terms and with the effects provided in the Credit
Agreement. All capitalized terms used herein without definition shall have the
same meanings herein as such terms are defined in the Credit Agreement.
This Note is issued in substitution and replacement for that certain
Revolving Credit Note of the Company dated December 20, 1995 payable to the
order of the Bank and heretofore issued by the Company pursuant to the Credit
Agreement.
The Company hereby promises to pay all costs and expenses (including
attorneys' fees) suffered or incurred by the holder hereof in collecting this
Note or enforcing any rights in any collateral therefor. The Company hereby
waives presentment for payment and demand. THIS NOTE SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Newport Corporation
By:_________________________________
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Name:_______________________
Title:______________________
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EXHIBIT G
U.S. TREASURY SECURITIES - Obligations of the U.S. government. Bills have a
maturity of one year or less and are sold on a discount basis. Notes have
maturities of one to seven years and bonds have longer maturities; both are
interest-bearing.
U.S. GOVERNMENT AGENCY SECURITIES - Obligations of the U.S. government agencies
or departments - some owned by the federal government, some sponsored by it but
privately held.
DOMESTIC OR EURODOLLAR CERTIFICATES OR DEPOSITS - U.S. dollar deposits or
certificates of deposit, held domestically or overseas from one day to five
years.
BANKERS ACCEPTANCES - Time drafts sold on a discount basis with a maturity of
six months or less, with a bank accepting primary responsibility for paying the
draft whether or not the customer has repaid the bank.
MONEY MARKET FUNDS - Daily funds invested in a portfolio of short-term
instruments, with special funds developed for corporate use.
COMMERCIAL PAPER - Company short-term unsecured promissory notes with a fixed
maturity, sold on a discount basis from one to 270 days.
MUNICIPAL GOVERNMENT NOTES AND BONDS - Securities issued by a state or local
government, usually tax-exempt.
FLOATING RATE MUNICIPAL NOTES AND BONDS - Variable rate long term municipal
bonds which may be "put back" to the issuer at par plus accrued interest at
frequent intervals.
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MUNICIPAL AUCTION RATE PREFERRED STOCK - Mutual funds based on a diversified
portfolio of municipal bonds, by law backed by assets equal to at least 200% of
face value, and bearing interest at auction set rates in frequent intervals.
TAXABLE MUNICIPAL AUCTION RATE NOTES - Notes issued by non-profit corporations
which have bear interest at auction set rates on a taxable basis.
CORPORATE NOTES - Corporate unsecured promissory notes with a fixed maturity
from nine months to 15 years.
CORPORATE AUCTION RATE PREFERRED STOCK - Corporate perpetual preferred stock
with a floating-rate dividend eligible for the 70% intercorporate dividend
received deduction. The dividend pricing mechanism ensures that the stock will
trade at par on auction dates.
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