Exhibit 10.1
April 23, 1999
Coherent, Inc.
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxx, Treasurer
Re: BRIDGE LOAN FACILITY
Ladies/Gentlemen:
Bank of America National Trust and Savings Association ("LENDER") is pleased to
make available to Coherent, Inc., a Delaware corporation ("BORROWER") a bridge
facility on the terms and subject to the conditions set forth below. Terms not
defined herein have the meanings assigned to them in by reference in PARAGRAPH 4
hereof or in EXHIBIT A hereto.
1. THE FACILITY.
(a) THE COMMITMENT. Subject to the terms and conditions set forth
herein, Xxxxxx agrees to make available to Borrower a single
loan on the Closing Date (the "LOAN") in an aggregate
principal amount of $70,000,000, or such lesser amount as may
be requested by Borrower on the Closing Date (the
"COMMITMENT"). Once repaid or prepaid by Borrower, the Loan
may not be reborrowed.
(b) BORROWINGS, CONVERSIONS, CONTINUATIONS. Borrower may request
that the Loan be made as or converted to a Base Rate Loan or
Offshore Rate Loan by irrevocable notice to be received by
Lender not later than 8:00 a.m. on the Business Day of the
borrowing or conversion. If Borrower fails to give a notice of
conversion or continuation prior to the end of any Interest
Period in respect of any Offshore Rate Loan, Borrower shall be
deemed to have requested that such Loan be converted to a Base
Rate Loan on the last day of the applicable Interest Period.
Each Offshore Rate Loan shall be in a minimum principal amount
of $5,000,000 or a multiple of $100,000 in excess thereof.
(c) INTEREST. At the option of Borrower, the Loan or any part
thereof which is at least equal to the minimum amount set
forth above shall bear interest at a rate per annum equal to
(i) the Offshore Rate PLUS 1.50%; or (ii) the Base Rate.
Interest on Base Rate Loans when the Base Rate is determined
by Xxxxxx's "prime" or "reference" rate shall be calculated on
the basis of a year of 365 or 366 days and
actual days elapsed. All other interest hereunder shall be
calculated on the basis of a year of 360 days and actual days
elapsed.
Xxxxxxxx promises to pay interest on the Loan on the Maturity
Date. If the time for any payment is extended by operation of
law or otherwise, interest shall continue to accrue for such
extended period.
After the date any principal amount of the Loan is due and
payable (whether on the Maturity Date, upon acceleration or
otherwise), or after any other monetary obligation hereunder
shall have become due and payable, Borrower shall pay, but
only to the extent permitted by law, interest (after as well
as before judgment) on such amounts at a rate per annum equal
to the Base Rate plus 3%. Such interest shall be payable on
demand.
In no case shall interest hereunder exceed the amount that
Lender may charge or collect under applicable law.
(d) EVIDENCE OF LOANS. The Loan and all payments thereon shall be
evidenced by Xxxxxx's loan accounts and records; PROVIDED,
HOWEVER, that upon the request of Xxxxxx, the Loan may be
evidenced by a grid promissory note in the form of EXHIBIT B
hereto, instead of or in addition to such loan accounts and
records. Such loan accounts, records and promissory note shall
be PRIMA FACIE evidence of the amount of the Loan and payments
thereon. Any failure to record any Loan or payment thereon or
any error in doing so shall not limit or otherwise affect the
obligation of Borrower to pay any amount owing with respect to
the Loan.
(e) REPAYMENT. Xxxxxxxx promises to pay to Lender the principal
amount of all Loans then outstanding on the Maturity Date.
Borrower shall make all payments required hereunder on the
date of payment in same day funds in United States Dollars at
the office of Lender located at 0000 Xxxxxxx Xxxxxxxxx,
Xxxxxxx, XX 00000 or such other address as Lender may from
time to time designate in writing.
All payments by Borrower to Lender hereunder shall be made to
Lender in full without set-off or counterclaim and free and
clear of and exempt from, and without deduction or withholding
for or on account of, any present or future taxes, levies,
imposts, duties or charges of whatsoever nature imposed by any
government or any political subdivision or taxing authority
thereof. Xxxxxxxx shall reimburse Lender for any taxes imposed
on or withheld from such payments (other than taxes imposed on
Xxxxxx's income, and franchise taxes imposed on Lender, by the
jurisdiction under the laws of which Xxxxxx is organized or
any political subdivision thereof).
1
(g) PREPAYMENTS. Borrower may, upon same-day notice, prepay the
Loan or a portion thereof on any Business Day; PROVIDED that
Borrower pays all Breakage Costs (if any) associated with such
prepayment on the date of such prepayment. Prepayments of
Offshore Rate Loans must be accompanied by a payment of
interest on the amount so prepaid. Prepayments of Offshore
Rate Loans must be in a principal amount of (i) at least
$5,000,000 or a multiple of $1,000,000 in excess thereof, or
(ii) if less, the entire amount of the outstanding Loan.
2. CONDITIONS PRECEDENT TO THE LOAN. As a condition precedent to
making the Loan hereunder, the following must have occurred:
(i) Lender shall have received from Borrower the enclosed
duplicate of this Agreement duly executed and
delivered on behalf of Xxxxxxxx;
(ii) Lender shall have received from Borrower in form
satisfactory to Lender: (x) a certified borrowing
resolution or other evidence of Xxxxxxxx's authority
to borrow; (y) a certificate of incumbency; and (z)
such other documents (including legal opinions) as
Lender may reasonably request;
(iii) If requested by Xxxxxx, Xxxxxx shall have received
from Borrower a promissory note as contemplated in
PARAGRAPH 1(d) above;
(iv) Borrower shall have paid to Lender a closing fee in
the amount agreed to by Xxxxxxxx and Lender in a
letter agreement dated on or about April 20, 1999;
(v) Borrower and Lender shall have entered into an
amendment to the Credit Agreement in form and
substance satisfactory to Lender;
(vi) Borrower must furnish Lender with a notice of
borrowing in form and substance reasonably
satisfactory to Lender;
(vii) each representation and warranty set forth in
PARAGRAPH 3 below shall be true and correct in all
material respects as if made on the date of such
borrowing;
(viii) no Default or Event of Default shall have occurred
and be continuing on the date of such borrowing; and
(ix) the Closing Date shall have occurred on or before
April 23, 1999.
The notice of borrowing shall be deemed a representation and
warranty by Borrower that the conditions referred to in
clauses (vii) and (viii) above have been met.
2
3. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS. It
is a corporation duly organized or formed, validly existing
and in good standing under the laws of the state of its
organization or formation, has the power and authority and the
legal right to own and operate its properties, to lease the
properties it operates and to conduct its business, is duly
qualified and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such
qualification, and is in compliance with all applicable laws
except to the extent that noncompliance does not have a
Material Adverse Effect.
(b) POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. The execution,
delivery and performance of this Agreement and the other Loan
Documents by Borrower are within its powers and have been duly
authorized by all necessary action, and this Agreement is and
the other Loan Documents, when executed, will be, legal, valid
and binding obligations of Borrower, enforceable in accordance
with their respective terms. The execution, delivery and
performance of this Agreement and the other Loan Documents are
not in contravention of law or of the terms of Borrower's
organic documents and will not result in the breach of or
constitute a default under, or result in the creation of a
lien under any indenture, agreement or undertaking to which
Borrower is a party or by which it or its property may be
bound or affected.
(c) FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT. The audited
consolidated balance sheet and statements of earnings and cash
flow of Borrower and its Subsidiaries as of September 26,
1998, present fairly the consolidated financial condition of
Borrower and its Subsidiaries as of such date, and since such
date, there has been no event or circumstance that has a
Material Adverse Effect.
(d) NO MATERIAL LITIGATION. No litigation or governmental
proceeding is pending or, to the best knowledge of Borrower,
threatened by or against Borrower which, if adversely
determined, has a Material Adverse Effect.
(e) NO DEFAULT. No Default or Event of Default has occurred and is
continuing.
(f) USE OF PROCEEDS. The proceeds of the Loans will be used solely
to finance the acquisition of all of the shares or assets of
Star Medical Technologies, Inc. in compliance with the
provisions of the Loan Documents and of Regulation U of the
Board of Governors of the Federal Reserve Bank and any other
requirement of applicable law.
(g) ERISA. Each Plan is in compliance in all material respects
with the applicable provisions of ERISA, the Code, and other
Federal or state law, including all requirements under the
Code or ERISA for filing reports, and benefits have been
3
paid in accordance with the provisions of such Plan except
where the failure to be in compliance in all material respects
does not have a Material Adverse Effect.
(h) ENVIRONMENTAL MATTERS. All facilities owned or leased by
Borrower or its Subsidiaries have been and continue to be in
material compliance with all material environmental laws and
regulations.
(i) YEAR 2000. On the basis of a comprehensive review and
assessment of the Borrower's and its subsidiaries' systems and
equipment and inquiry made of the Borrower's and its
subsidiaries' material suppliers and vendors, the Borrower
reasonably believes that the Borrower's "Year 2000 problem"
(that is, the inability of computers, as well as embedded
microchips in non-computing devices, to perform properly
date-sensitive functions with respect to certain dates prior
to and after December 31, 1999), including costs of
remediation, will not result in a Material Adverse Effect. The
Borrower and its subsidiaries have developed feasible
contingency plans adequately to ensure uninterrupted and
unimpaired business operation in the event of failure of their
own or, to the extent reasonably foreseeable, a third party's
systems or equipment due to the Year 2000 problem, including
those of vendors and suppliers.
(j) FULL DISCLOSURE. No written statement made by Borrower to
Lender in connection with this Agreement, or in connection
with any Loan, contains any untrue statement of a material
fact or omits a material fact necessary to make the statement
made not misleading in any material respect.
4. COVENANTS. So long as principal of and interest on any Loan or any
other amount payable hereunder or under any other Loan Document remains
unpaid or unsatisfied or the Commitment has not been terminated,
Borrower shall comply with all the covenants and agreements applicable
to it contained in Articles 6 (Affirmative Covenants) and 7 (Negative
Covenants) of the Credit Agreement, it being agreed that such covenants
and agreements shall survive any termination, cancellation, discharge
or replacement of the Credit Agreement. Unless otherwise provided in
this Agreement or unless the context otherwise requires, all
capitalized terms used in such Articles 6 and 7 shall have the meanings
set forth in the Credit Agreement. The covenants and agreements of
Borrower contained in such Articles 6 and 7 (including all exhibits,
schedules and defined terms referred to therein) are hereby
incorporated herein by reference with appropriate substitutions,
including the following:
(a) all references to "this Agreement" shall be deemed to be
references to this Agreement;
(b) all references to "Bank" shall be deemed to be references to
Lender;
(c) all references to "Default" and "Event of Default" shall be
deemed to be references to a Default and an Event of Default,
respectively; and
4
(d) all references to "Loans" shall be deemed to be references to
the Loan.
Borrower further covenants to Lender that it will give notice to Lender
of the occurrence of the Private Placement on the date thereof.
5. EVENTS OF DEFAULT. The following are "EVENTS OF DEFAULT:"
(a) Borrower fails to pay any principal of the Loan, or any other
amount payable hereunder or under any other Loan Document, as
and on the date when due; or
(b) Borrower fails to pay any interest on the Loan, or any
commitment fees due hereunder, or any portion thereof, within
three days after the date when due; or Borrower fails to pay
any other fees or amount payable to Lender under any Loan
Document, or any portion thereof, within five days after the
date due; or
(c) Any representation or warranty in any Loan Document or in any
certificate, agreement, instrument or other document made or
delivered by Borrower pursuant to or in connection with any
Loan Document proves to have been incorrect in any material
respect when made or deemed made; or
(d) Borrower fails to comply with any covenant or agreement
incorporated herein by reference pursuant to PARAGRAPH 4
above, subject to any applicable grace period and/or notice
requirement set forth in Article 8 of the Credit Agreement (it
being understood and agreed that any such notice requirement
shall be met by Xxxxxx's giving the applicable notice to
Borrower); or
(e) Any "Event of Default" specified in Article 8 of the Credit
Agreement occurs and is continuing.
Upon the occurrence of an Event of Default, Xxxxxx may declare the
Commitment to be terminated by written notice to Xxxxxxxx, whereupon
the Commitment shall be terminated, and/or declare all sums outstanding
hereunder and under the other Loan Documents to be immediately due and
payable, together with all interest thereon, without other notice of
default, presentment or demand for payment, protest or notice of
nonpayment or dishonor, or other notices or demands of any kind or
character, all of which are hereby expressly waived; PROVIDED, HOWEVER,
that upon the occurrence of any event specified in Section 8.01(f)(ii)
or Section 8.01(g) of the Credit Agreement, the Commitment shall
automatically terminate, and all sums outstanding hereunder and under
each other Loan Document shall become immediately due and payable,
together with all interest thereon, without other notice of default,
presentment or demand for payment, protest or notice of nonpayment or
dishonor, or other notices or demands of any kind or character, all of
which are hereby expressly waived.
6. MISCELLANEOUS.
5
(a) All financial computations required under this Agreement shall
be made, and all financial information required under this
Agreement shall be prepared, in accordance with generally
accepted accounting principles consistently applied.
(b) All references herein and in the other Loan Documents to any
time of day shall mean the local (standard or daylight, as in
effect) time of San Francisco, CA.
(c) All Breakage Costs shall be for the account of Borrower.
(d) If at any time Lender, in its sole discretion, determines that
(i) deposits in the amount of any requested Offshore Rate Loan
for any requested Interest Period are not available to Lender
in the offshore dollar interbank market, or (ii) the Offshore
Rate does not accurately reflect the funding cost to Lender of
lending such Loans, Lender's obligation to make Offshore Rate
Loans shall cease for the period during which such
circumstance exists.
(e) Borrower shall reimburse or compensate Lender, upon demand,
for all costs incurred, losses suffered or payments made by
Lender which are reasonably applied or allocated by Lender to
the transactions contemplated herein (all as determined by
Lender in its reasonable discretion) by reason of any and all
future reserve, deposit, capital adequacy or similar
requirements against (or against any class of or change in or
in the amount of) assets, liabilities or commitments of, or
extensions of credit by, Lender; and compliance by Lender with
any future directive, or requirements from any regulatory
authority, whether or not having the force of law.
(f) No amendment or waiver of any provision of this Agreement
(including any provision of the Credit Agreement incorporated
herein by reference pursuant to PARAGRAPH 4 above and any
waiver of PARAGRAPH 5(d) above) or of any other Loan Document
and no consent by Lender to any departure therefrom by
Borrower shall be effective unless such amendment, waiver or
consent shall be in writing and signed by a duly authorized
officer of Lender, and any such amendment, waiver or consent
shall then be effective only for the period and on the
conditions and for the specific instance specified in such
writing. No failure or delay by Xxxxxx in exercising any
right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise
of any other rights, power or privilege.
(g) Except as otherwise expressly provided herein, notices and
other communications to each party provided for herein shall
be in writing and shall be delivered by hand or overnight
courier service, mailed or sent by telecopy or electronic mail
to the address provided from time to time by such party. Any
such notice or other communication sent by overnight courier
service, mail or telecopy shall be effective on the earlier of
actual receipt and (i) if sent by overnight courier
6
service, the scheduled delivery date, (ii) if sent by mail,
the fourth Business Day after deposit in the U.S. mail first
class postage prepaid, and (iii) if sent by telecopy, when
transmission in legible form is complete. All notices and
other communications sent by the other means listed in the
first sentence of this paragraph shall be effective upon
receipt. Notwithstanding anything to the contrary contained
herein, all notices (by whatever means) to Lender pursuant to
PARAGRAPH 1(b) hereof shall be effective only upon receipt.
(h) This Agreement shall inure to the benefit of the parties
hereto and their respective successors and assigns, except
that Borrower may not assign its rights and obligations
hereunder. Lender may at any time (i) assign all or any part
of its rights and obligations hereunder to any other Person,
except a competitor of Borrower, with the consent of Borrower,
such consent not to be unreasonably withheld, PROVIDED that no
such consent shall be required if the assignment is to an
affiliate of Lender or if a Default or Event of Default
exists, and (ii) grant to any other Person participating
interests in all or part of its rights and obligations
hereunder without notice to Xxxxxxxx. Xxxxxxxx agrees to
execute any documents reasonably requested by Xxxxxx in
connection with any such assignment. All information provided
by or on behalf of Borrower to Lender or its affiliates may be
furnished by Lender to its affiliates and to any actual or
proposed assignee or participant, subject to the
confidentiality requirements of PARAGRAPH 6(l) below.
(i) Borrower shall pay Lender, on demand, all reasonable
out-of-pocket expenses and legal fees (including the allocated
costs for in-house legal services) incurred by Lender in
connection with the enforcement of this Agreement or any
instruments or agreements executed in connection herewith.
(j) If any provision of this Agreement or any other Loan Document
shall be held invalid or unenforceable in whole or in part,
such invalidity or unenforceability shall not affect the
remaining provisions hereof or thereof. This Agreement
supersedes all prior agreements and oral negotiations with
respect to the subject matter hereof.
(k) This Agreement may be executed in one or more counterparts,
and each counterpart, when so executed, shall be deemed an
original but all such counterparts shall constitute but one
and the same instrument.
(l) Lender agrees to use and to cause its affiliates to use
reasonable efforts, in accordance with safe and sound banking
practices and its customary practices for handling non-public
information, to maintain the confidentiality of any non-public
information supplied to Lender by Borrower or any of
Borrower's subsidiaries in connection with this Agreement;
PROVIDED, that nothing in this PARAGRAPH 6(l) shall be
construed to limit the disclosure of any such information (i)
to the extent required by statute, rule, regulation or
judicial process, (ii) to counsel, accountants
7
or other professional advisors to Lender, (iii) to bank
examiners, auditors or regulators of Lender, (iv) in
connection with any related litigation to which Lender is a
party, (v) to the extent necessary to enforce any right or
remedy of Lender hereunder, (vi) to any potential assignee or
participant who agrees to be bound by the provisions of this
PARAGRAPH 6(l), (vii) as such disclosure is expressly
permitted under the terms of any other document or agreement
regarding confidentiality to which Borrower or any of its
subsidiaries is party or is deemed party which Lender or an
affiliate of Lender; and (viii) to Lender's affiliates. -
(m) This Agreement and the other Loan Documents are governed by,
and shall be construed in accordance with, the laws of the
State of California and the applicable laws of the United
States of America. Borrower hereby submits to the nonexclusive
jurisdiction of the United States District Court and each
state court in the City of San Francisco for the purposes of
all legal proceedings arising out of or relating to any of the
Loan Documents or the transactions contemplated thereby.
Borrower irrevocably consents to the service of any and all
process in any such action or proceeding by the mailing of
copies of such process to Borrower at its address set forth
beneath its signature hereto. Borrower irrevocably waives, to
the fullest extent permitted by law, any objection which it
may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any
such proceeding brought in such a court has been brought in an
inconvenient forum.
(n) BORROWER AND XXXXXX EACH WAIVE THEIR RESPECTIVE RIGHTS TO A
TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(o) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
8
Please indicate your acceptance of the Commitment on the foregoing terms and
conditions by returning an executed copy of this Agreement to the undersigned
not later than April 23, 1999.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: _______________________________
Name: Xxxxxxx XxXxxxxxx
Title: Managing Director
ACCEPTED AND AGREED TO AS OF
THE DATE FIRST WRITTEN ABOVE:
COHERENT, INC.
By:____________________________
Name:__________________________
Title: ________________________
Date: April 23, 1999
9
EXHIBIT A
DEFINITIONS
Agreement: This letter agreement, as amended, restated,
extended, supplemented or otherwise modified in
writing from time to time.
Base Rate: A fluctuating rate per annum equal to the higher of
(a) the Federal Funds Rate plus 1/2 of 1% and (b) the
rate of interest publicly announced from time to time
by Xxxxxx as its "prime" or "reference" rate. The
Lender's prime or reference rate is a rate set by
Lender based upon various factors including Lender's
costs and desired return, general economic conditions
and other factors, and is used as a reference point
for pricing some loans, which may be priced at,
above, or below such announced rate. Any change in
the prime or reference rate announced by Xxxxxx shall
take effect at the opening of business on the day
specified in the public announcement of such change.
Base Rate Loan: Any portion of the Loan which bears interest based on
the Base Rate.
Breakage Costs: Any loss, cost or expense incurred by Lender
(including any loss of anticipated profits and any
loss or expense arising from the liquidation or
reemployment of funds obtained by Lender to maintain
the relevant Offshore Rate Loan or from fees payable
to terminate the deposits from which such funds were
obtained) as a result of (i) any continuation,
conversion, payment or prepayment of any Offshore
Rate Loan on a day other than the last day of the
Interest Period therefor (whether voluntary,
mandatory, automatic, by reason of acceleration, or
otherwise); or (ii) any failure by Borrower (for a
reason other than the failure of Lender to make a
Loan when all conditions to making such Loan have
been met by Borrower in accordance with the terms
hereof) to prepay, borrow, continue or convert any
Offshore Rate Loan on a date or in the amount
notified by Borrower. The certificate of Lender as to
its costs of funds, losses and expenses incurred
shall be PRIMA FACIE evidence of the amount payable.
Business Day: Any day other than a Saturday, Sunday, or other
day on which commercial banks are authorized to close
under the laws of, or are in fact closed in, the
State of California and, if such day relates to any
Offshore Rate Loan, means any such day on which
dealings in dollar deposits are conducted by and
between banks in the offshore dollar interbank
market.
Closing Date: The date on which the conditions to making the Loan
set forth in PARAGRAPH 2 hereof have been satisfied
by Borrower or waived by Xxxxxx.
Code: The Internal Revenue Code of 1986, as amended from
time to time.
Credit Agreement: The Credit Agreement, dated as of December 20, 1996,
between Xxxxxxxx and Lender, as it may be amended
from time to time.
Default: Any event that, with the giving of any notice, the
passage of time, or both, would be an Event of
Default.
ERISA: The Employee Retirement Income Security Act of 1974
and any regulations issued pursuant thereto, as
amended from time to time.
Event of Default: Has the meaning set forth in PARAGRAPH 5 hereof.
Federal Funds Rate: For any day, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal
funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such
day; PROVIDED that (a) if such day is not a Business
Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding
Business Day as so published on the next succeeding
Business Day, and (b) if no such rate is so published
on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate
charged to Lender on such day on such transactions as
determined by Xxxxxx.
Interest Period: For each Offshore Rate Loan, (a) initially, the
period commencing on the date the Offshore Rate Loan
is disbursed or converted from a Base Rate Loan and
(b) thereafter, the period commencing on the last day
of the preceding Interest Period, and, in each case,
ending on the earlier of (x) the Maturity Date and
(y) seven to 30 days after the disbursement thereof
or the conversion thereinto, as requested by
Xxxxxxxx; PROVIDED that:
(i) any Interest Period that would otherwise end
on a day that is not a Business Day shall be
extended to the next succeeding Business Day
unless such Business Day falls in another
calendar month, in which case such Interest
Period shall end on the next preceding
Business Day; and
(ii) any Interest Period which begins on the last
Business Day of a calendar month (or on a
day for which there is no numerically
corresponding day in the calendar month at
the end of such Interest Period) shall end
on the last Business Day of the calendar
month at the end of such Interest Period.
Loan Documents: This Agreement, and any promissory note, certificate,
fee letter, and other instrument, document or
agreement delivered in connection with this
Agreement.
Material Adverse Effect: Any set of circumstances or events
which (a) has or could reasonably be expected to have
any material adverse effect whatsoever upon the
validity or enforceability of any Loan Document, (b)
is or could reasonably be expected to be material and
adverse to the condition (financial or otherwise),
business operations or prospects of Borrower or (c)
materially impairs or could reasonably be expected to
materially impair the ability of Borrower to perform
its obligations and liabilities under this Agreement
or any other Loan Document.
Maturity Date: The date that is the earlier to occur of (i) the date
on which the Private Placement occurs, and (ii) the
date that is 30 days after the Closing Date.
Offshore Rate: For any Interest Period with respect to any Offshore
Rate Loan, a rate per annum determined pursuant to
the following formula:
Offshore Rate = OFFSHORE BASE RATE
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"OFFSHORE BASE RATE" means, for such Interest
Period:
the rate per annum of interest at which deposits
in dollars in the approximate amount of the
Offshore Rate Loan to be made, continued, or
converted into and having a maturity comparable to
such Interest Period would by offered by Xxxxxx's
Grand Cayman Branch, Grand Cayman, British West
Indies (or such other office as may be designated
for such purpose by the Bank), to major banks in
the offshore interbank market upon request of such
banks at approximately 8:00 a.m. on the first day
of such Interest Period.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day
during any Interest Period, the reserve percentage
(expressed as a decimal, rounded upward to the
next 1/100th of 1%) in effect on such day
applicable to Lender under regulations issued from
time to time by the Board of Governors of the
Federal Reserve System for determining the maximum
reserve requirement (including any emergency,
supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding
(currently referred to as "Eurocurrency
liabilities"). The Offshore Rate for each
outstanding Offshore Rate Loan shall be adjusted
automatically as of the effective date of any
change in the Eurodollar Reserve Percentage.
Offshore Rate Loan: Any portion of the Loan bearing interest based on the
Offshore Rate.
Plan: Any employee benefit plan maintained or contributed
to by Borrower or by any trade or business (whether
or not incorporated) under common control with
Borrower as defined in Section 4001(b) of ERISA and
insured by the Pension Benefit Guaranty Corporation
under Title IV of ERISA.
Private Placement: The issuance of unsecured debt by Borrower to be
evidenced by unsecured senior notes of Borrower in
the aggregate principal amount of $70,000,000.
Subsidiary: A corporation, partnership, joint venture, limited
liability company or other business entity of which a
majority of the shares of securities or other
interests having ordinary voting power for the
election of directors or other governing body (other
than securities or interests having such power only
by reason of the happening of a contingency) are at
the time beneficially owned, or the management of
which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or
both, by Borrower.
EXHIBIT B
FORM OF PROMISSORY NOTE
$70,000,000 ______________, ____
FOR VALUE RECEIVED, the undersigned, COHERENT, INC., a Delaware
corporation ("BORROWER"), hereby promises to pay to the order of BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION ("LENDER") the principal sum of Seventy
Million Dollars ($70,000,000) or, if less, the aggregate unpaid principal amount
of all Loans made by Lender to Borrower pursuant to the letter agreement, dated
as of April 23, 1999 (such letter agreement, as it may be amended, restated,
extended, supplemented or otherwise modified from time to time, being
hereinafter called the "AGREEMENT"), between Borrower and Lender, on the
Maturity Date. Xxxxxxxx further promises to pay interest on the unpaid principal
amount of the Loans evidenced hereby from time to time at the rates, on the
dates, and otherwise as provided in the Agreement.
Lender is authorized to endorse the amount and the date on which each
Loan is made or converted, the Interest Period therefor (if applicable) and each
payment of principal with respect thereto on the schedules annexed hereto and
made a part hereof, or on continuations thereof which shall be attached hereto
and made a part hereof; PROVIDED that any failure to so endorse such information
on such schedule or continuation thereof or any error in doing so shall not
limit or otherwise affect any obligation of Borrower under the Agreement or this
promissory note.
This promissory note is the promissory note referred to in, and is
entitled to the benefits of, the Agreement, which Agreement, among other things,
contains provisions for acceleration of the maturity of the Loans evidenced
hereby upon the happening of certain stated events and also for prepayments on
account of principal of the Loans prior to the maturity thereof upon the terms
and conditions therein specified.
Unless otherwise defined herein, terms defined in the Agreement are
used herein with their defined meanings therein. This promissory note shall be
governed by, and construed in accordance with, the laws of the State of
California.
COHERENT, INC.
By:______________________________
Name:____________________________
Title:___________________________
SCHEDULE A TO NOTE
BASE RATE LOANS AND REPAYMENT OF BASE RATE LOANS
(1) (2) (3) (4) (5)
Amount of Base Rate
Amount of Base Rate Loan Repaid or Unpaid Principal
Loan Made or Converted Converted to Offshore Balance of Base Notation
Date From Offshore Rate Loan Rate Loan Rate Loans Made By
---- ----------------------- --------- ---------- -------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
SCHEDULE B TO NOTE
OFFSHORE RATE LOANS AND REPAYMENT OF OFFSHORE RATE LOANS
(1) (2) (3) (4) (5) (6)
Amount of Amount of
Offshore Rate Offshore Rate Unpaid Principal
Loan Made or Loan Repaid or Balance of
Converted from Converted to Base Offshore Rate Notation
Date Base Rate Loan Interest Period Rate Loan Loans Made By
---- -------------- --------------- --------- ----- -------
---------- ------------- ------------ ------------- ------------- -------------
---------- ------------- ------------ ------------- ------------- -------------
---------- ------------- ------------ ------------- ------------- -------------
---------- ------------- ------------ ------------- ------------- -------------
---------- ------------- ------------ ------------- ------------- -------------
---------- ------------- ------------ ------------- ------------- -------------
---------- ------------- ------------ ------------- ------------- -------------
---------- ------------- ------------ ------------- ------------- -------------
---------- ------------- ------------ ------------- ------------- -------------
---------- ------------- ------------ ------------- ------------- -------------
---------- ------------- ------------ ------------- ------------- -------------
---------- ------------- ------------ ------------- ------------- -------------
---------- ------------- ------------ ------------- ------------- -------------
---------- ------------- ------------ ------------- ------------- -------------
---------- ------------- ------------ ------------- ------------- -------------
---------- ------------- ------------ ------------- ------------- -------------
---------- ------------- ------------ ------------- ------------- -------------
---------- ------------- ------------ ------------- ------------- -------------
---------- ------------- ------------ ------------- ------------- -------------
---------- ------------- ------------ ------------- ------------- -------------
