FIFTH AMENDMENT TO OPTIONAL ADVANCE DEMAND GRID NOTE
This Fifth Amendment dated as of March 18, 2009 amends the Optional Advance Demand Grid Note, dated August 3, 2004, made by MKS Instruments, Inc. and MKS Japan, Inc. in favor of HSBC Bank USA, National Association (“Bank”), as amended by the First Amendment, dated July 29, 2005, the Second Amendment, dated July 31, 2006, the Third Amendment, dated as of July 31, 2007 and the Fourth Amendment, dated as of July 31, 2008 (the “Note”). Terms defined in the Note shall have the same meanings in this Amendment.
1.
Without changing the demand and discretionary nature of the Note, the Note is amended as follows: (a) the maximum amount of the Note is reduced from $35,000,000.00 to $5,000,000.00, and the undersigned agree to pay to the Bank any outstanding balance on the Note in excess of $5,000,000.00 on or before May 31, 2009, (b) the limit for standby letters of credit under the Note is reduced from $750,000.00 to $650,000.00, and (c) the undersigned agree to pay the Bank an annual facility fee of 0.0375% of the maximum amount of the Note to be paid quarterly by installments on or before March 1st, June 1st, September 1st, and December 1st of each year the Note is in effect.
2.
Except as amended hereby, the Note remains unchanged and in full force and effect.
IN WITNESS WHEREOF, this Fifth Amendment has been duly executed by the undersigned parties effective the 18th day of March, 2009.
MKS INSTRUMENTS, INC.
HSBC BANK USA, NATIONAL
ASSOCIATION
By:
/s/ Ronald C. Weigner
By:
/s/ Elise M. Russo
Name:
Ronald C. Weigner
Name:
Elise M. Russo
Title:
VP, CFO & Treasurer
Title:
First Vice President
MKS JAPAN, INC.
By:
/s/ Kathleen F. Burke
Name:
Kathleen F. Burke
Title:
Director
1
FOURTH AMENDMENT DATED JULY 31, 2008 TO OPTIONAL ADVANCE DEMAND GRID NOTE
This Fourth Amendment dated as of July 31, 2008 amends the Optional Advance Demand Grid Note dated August 3, 2004, made by MKS Instruments, Inc. and MKS Japan, Inc. in favor of HSBC Bank USA, National Association, as amended by the First Amendment, dated July 29, 2005, the Second Amendment, dated July 31, 2006, and the Third Amendment, dated as of July 31, 2007 (the “Note”). Terms defined in the Note shall have the same meanings in this Amendment.
1.
The date of “July 31, 2008”, wherever it appears in the Note, is hereby deleted and replaced with: “July 31, 2009”. After July 31, 2009, the termination date of “July 31, 2009” (and any subsequent termination date), wherever it appears in the note, shall be deleted and replaced by such later date as may be agreed to in writing by the Bank and the Borrower as the new termination date of the Note.
2.
Except as amended hereby, the Note remains unchanged and in full force and effect.
MKS INSTRUMENTS, INC.
HSBC BANK USA, NATIONAL
ASSOCIATION
By:
/s/ Joseph M. Tocci
By:
/s/ Elise M. Russo
Name:
Joseph M. Tocci
Name:
Elise M. Russo
Title:
Treasurer
Title:
First Vice President
MKS JAPAN, INC.
By:
/s/ Ronald Weigner
Name:
Ronald Weigner
Title:
Director
2
THIRD AMENDMENT DATED JULY 31, 2007 TO OPTIONAL ADVANCE DEMAND GRID NOTE
This Third Amendment dated as of July 31, 2007 amends the Optional Advance Demand Grid Note dated August 3, 2004, made by MKS Instruments, Inc. and MKS Japan, Inc. in favor of HSBC Bank USA, National Association, as amended by the First Amendment, dated July 29, 2005, the Second Amendment, dated July 31, 2006 (the “Note”). Terms defined in the Note shall have the same meanings in this Amendment.
1.
The date of “July 31, 2007”, wherever it appears in the Note, is hereby deleted and replaced with: “July 31, 2008”. After July 31, 2008, the termination date of “July 31, 2008” (and any subsequent termination date), wherever it appears in the note, shall be deleted and replaced by such later date as may be agreed to in writing by the Bank and the Borrower as the new termination date of the Note.
2.
The definition ofAdjusted LIBOR Rateis changed to: the LIBOR Rate plus .75%
3.
Eliminate requirement “(iiii) management prepared financial forecasts for each fiscal year” as noted on page 4 of the Optional Advance Demand Grid Note.
4.
Except as amended hereby, the Note remains unchanged and in full force and effect.
MKS INSTRUMENTS, INC.
HSBC BANK USA, NATIONAL
ASSOCIATION
By:
/s/ Joseph M. Tocci
By:
/s/ Elise M. Russo
Name:
Joseph M. Tocci
Name:
Elise M. Russo
Title:
Treasurer
Title:
FVP
MKS JAPAN, INC.
By:
/s/ Ronald Weigner
Name:
Ronald Weigner
Title
Director
3
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