EXHIBIT 10.11.1
Loan No. 1440
MODIFICATION AGREEMENT
SECURED LOAN
THIS MODIFICATION AGREEMENT ("Agreement") dated June 1, 2002 is entered into by
and between WELLS 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/100 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. As of May 31, 2002, the outstanding principal balance under the Loan was
Eighteen Million and No/100 Dollars ($18,000,000.00)
C. The Note, Deed of Trust, Loan Agreement, this Agreement, the other
documents described in the Loan Agreement as "Loan Documents" (the
"Existing Loan Documents"), together with all modifications and
amendments thereto, the Modification Documents (as defined below), and
any document required hereunder, are collectively referred to
hereinafter as the "Loan Documents".
D. By this Agreement, Borrower and Lender intend to modify and amend
certain terms and provisions of the Loan Documents, which shall become
effective on June 1, 2002 (the "Effective Date").
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
encumbering the property (the "Property") 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 (the "Modification 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 Borrower shall provide, at Borrower's expense, an opinion of
legal counsel in form and content satisfactory to Lender to the
effect that: (a) upon due authorization, execution and
recordation or filing as may be specified in the opinion, each
of the Modification Documents shall be legal, valid and binding
instruments, enforceable
against the makers thereof in accordance with their respective
terms; (b) Borrower is duly formed and has all requisite
authority to enter into the Modification Documents; and (c) such
other matters, incident to the transactions contemplated hereby,
as Lender may reasonably request.
1.6 The representations and warranties contained in this Agreement
are true and correct;
1.7 All payments due and owing to Lender under the Loan Documents
have been paid current as of the effective date of this
Agreement;
1.8 Receipt and approval of an updated appraisal of the Property
satisfactory to Lender;
1.9 Borrower shall purchase interest rate protection satisfactory to
Lender in the form of a LIBOR Cap (based on 30-day LIBOR), for
the notional amount of $17,500,000.00, at a rate not to exceed
three percent (3.00%) for the six (6) month period beginning
December 1, 2002 and ending June 1, 2003.
1.10 The payment to Lender of $250,000.00 to be applied as a
principal paydown to the Loan. Upon receipt of said principal
payment, the outstanding principal balance of the Loan shall be
Seventeen Million Seven Hundred Fifty Thousand and No/100
Dollars ($17,750,000.00).
1.11 The payment to Lender of an extension fee in the amount of
$45,000.00; and
1.12 The payment to Lender of a documentation fee in the amount of
$1,000.00.
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. On the Effective Date, the Maturity
Date recited in the Note is hereby extended to June 1, 2003.
3.2 Amended and Restated Note. On the Effective Date, the Note
described in Recital A herein is superseded and replaced in its
entirety by that certain Amended and Restated Promissory Note
Secured by Deed of Trust executed by Borrower in the amount of
SEVENTEEN MILLION SEVEN HUNDRED FIFTY THOUSAND AND NO/100
DOLLARS ($17,750,000.00) of even date herewith.
3.3 Principal Payments. In addition to the principal payment
required in paragraph 1.9 above, Borrower shall make an
additional principal payment in the amount of TWO HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($250,000.00) on December 1, 2002.
Notwithstanding such principal payment, any outstanding
principal balance under the Note on the Maturity Date shall be
due and payable on the Maturity Date. Any payment(s) required
hereunder shall be due and payable on the first day of the month
in which it is due and shall be applied to the outstanding
principal balance of the Loan. Any principal balance reductions
may not be reborrowed.
3.4 Interest Rate. Except as otherwise provided herein, from and
after the Effective Date, the Loan shall bear interest (based on
a 360-day year basis and charged on the basis of actual days
elapsed) at 4.25% percent per annum above the LIBO Rate pursuant
to the terms of the Amended and Restated Promissory Note of even
date herewith.
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 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"
WELLS FARGO BANK,
NATIONAL ASSOCIATION
By:
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Jay Rosenberg
Its: Vice President
"BORROWER"
COMMUNICATIONS & POWER INDUSTRIES
HOLDING CORPORATION,
a Delaware corporation
By:
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Its:
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