EXHIBIT 10.12.1
Loan No. 1440
AMENDED AND RESTATED
PROMISSORY NOTE SECURED BY DEED OF TRUST
$17,750,000.00 San Francisco, California
June 1, 2002
FOR VALUE RECEIVED, the undersigned COMMUNICATIONS & POWER INDUSTRIES HOLDING
CORPORATION, a Delaware corporation ("Borrower"), promise(s) to pay to the order
of WELLS FARGO BANK, NATIONAL ASSOCIATION ("Lender"), at the Disbursement and
Operations Center in El Segundo, California, or at such other place as may be
designated in writing by Lender, the principal sum of SEVENTEEN MILLION SEVEN
HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($17,750,000.00) or so much thereof as
may from time to time be owing hereunder by reason of advances by Lender to or
for the benefit or account of Borrower, with interest thereon, per annum, at one
or more of the Effective Rates calculated in accordance with the terms and
provisions of the Fixed Rate Agreement attached hereto as Exhibit A and a Fixed
Rate Notice described on Exhibit B attached hereto (based on a 360-day year and
charged on the basis of actual days elapsed). All sums owing hereunder are
payable in lawful money of the United States of America, in immediately
available funds.
Interest accrued on this note ("Note") shall be due and payable on the first day
of each month commencing July 1, 2002.
Borrower shall make one (1) principal payment to Lender in the amount of TWO
HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($250,000.00) on December 1, 2002;
provided, however, notwithstanding such payment, any unpaid principal balance
outstanding under this Note or any of the other loan documents on the Maturity
Date (defined below) of this Note shall be fully due and payable on the Maturity
Date. Any payments required hereunder shall be due and payable on the first day
of the month(s) in which it is due and shall be applied to the outstanding
principal balance of this Note. Any principal balance reductions may not be
reborrowed.
The outstanding principal balance of this Note, together with all accrued and
unpaid interest, shall be due and payable in full on June 1, 2003 ("Maturity
Date").
This Note is secured by, among other things, that certain Deed of Trust with
Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing
("Deed of Trust") dated as of December 22, 2000, executed by Borrower, as
trustor, to a trustee for the benefit of Lender.
If any interest payment required hereunder is not received by Lender (whether by
direct debit or otherwise) on or before the fifteenth (15th) calendar day of the
month in which it becomes due, Borrower shall pay, at Lender's option, a late or
collection charge equal to four percent (4%) of the amount of such unpaid
interest payment.
If: (a) Borrower shall fail to pay when due any sums payable hereunder; or (b) a
Default (as defined in the Deed of Trust) occurs under the Deed of Trust or
under any obligation secured thereby; or (c) the property which is subject to
the Deed of Trust, or any portion thereof or interest therein, is sold,
transferred, mortgaged, assigned, encumbered or leased, whether voluntarily or
involuntarily or by operation of law or otherwise, other than as expressly
permitted by Lender in writing; THEN Lender may, at its sole option, declare all
sums owing under this Note immediately due and payable; provided, however, that
if any document related to this Note provides for automatic acceleration of
payment of sums owing hereunder, all sums owing hereunder shall be automatically
due and payable in accordance with the terms of that document.
If any attorney is engaged by Lender to enforce or defend any provision of this
Note or the Deed of Trust, or as a consequence of any Default, with or without
the filing of any legal action or proceeding, then Borrower shall pay to Lender
immediately upon demand all attorneys' fees and all costs incurred by Lender in
connection therewith, together with interest thereon from the date of such
demand until paid at the rate of interest applicable to the principal balance
owing hereunder as if such unpaid attorneys' fees and costs had been added to
the principal.
No previous waiver and no failure or delay by Lender in acting with respect to
the terms of this Note or the Deed of Trust shall constitute a waiver of any
breach, default, or failure of condition under this Note, the Deed of Trust or
the obligations
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secured thereby. A waiver of any term of this Note, the Deed of Trust or of any
of the obligations secured thereby must be made in writing and shall be limited
to the express written terms of such waiver. In the event of any inconsistencies
between the terms of this Note and the terms of any other document related to
the loan evidenced by this Note, the terms of this Note shall prevail.
If this Note is executed by more than one person or entity as Borrower, the
obligations of each such person or entity shall be joint and several. No person
or entity shall be a mere accommodation maker, but each shall be primarily and
directly liable hereunder. Except as otherwise provided in any agreement
executed in connection with this Note, Borrower waives: presentment; demand;
notice of dishonor; notice of default or delinquency; notice of acceleration;
notice of protest and nonpayment; notice of costs, expenses or losses and
interest thereon; notice of late charges; and diligence in taking any action to
collect any sums owing under this Note or in proceeding against any of the
rights or interests in or to properties securing payment of this Note.
Time is of the essence with respect to every provision hereof. This Note shall
be construed and enforced in accordance with the laws of the State of
California, except to the extent that federal laws preempt the laws of the State
of California, and all persons and entities in any manner obligated under this
Note consent to the jurisdiction of any federal or state court within the State
of California having proper venue and also consent to service of process by any
means authorized by California or federal law.
All notices or other communications required or permitted to be given pursuant
to this Note shall be given to the Borrower or Lender at the address and in the
manner provided for in the Loan Agreement.
The Loan Documents 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.
Exhibits A and B are attached hereto and incorporated herein by reference.
"BORROWER"
COMMUNICATIONS & POWER INDUSTRIES
HOLDING CORPORATION
a Delaware corporation
By:
------------------------------
Its:
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EXHIBIT A
Loan No. 1440
FIXED RATE AGREEMENT
Exhibit A to Promissory Note Secured by Deed of Trust ("Note"), dated June 1,
2002, made by COMMUNICATIONS & POWER INDUSTRIES HOLDING CORPORATION, a Delaware
corporation, as Borrower, to the order of WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Lender.
R E C I T A L S
Borrower has requested and Lender has agreed to provide a fixed rate option as a
basis for calculating the effective rate of interest on amounts owing under this
Note. Borrower acknowledges the following: (i) it understands the process of
exercising the fixed rate option as provided herein; (ii) amounts owing under
this Note may bear interest at different rates and for different time periods;
and (iii) absent the terms and conditions hereof, it would be extremely
difficult to calculate Lender's additional costs, expenses, and damages in the
event of a Default or prepayment by Borrower hereunder. Given the above,
Borrower agrees that the provisions herein (including, without limitation, the
Fixed Rate Price Adjustment defined below) provide for a reasonable and fair
method for Lender to recover its additional costs, expenses and damages in the
event of a Default or prepayment by Borrower.
1. RATES AND TERMS DEFINED. Various rates and terms not otherwise defined
herein are defined and described as follows:
"Administration Fee" shall be FIVE HUNDRED AND NO/100THS DOLLARS
($500.00) for each Fixed Rate Period and Fixed Rate Option.
"Alternate Rate" is a rate of interest per annum five percent
(5%) in excess of the applicable Variable Rate in effect from
time to time.
"Applicable LIBO Rate" is the rate of interest, rounded upward
to the nearest whole multiple of one-hundredth of one percent
(.01%), equal to the sum of: (a) four and one quarter percent
(4.25%) plus (b) the LIBO Rate, which rate is divided by one
(1.00) minus the Reserve Percentage:
Applicable LIBO Rate = 4.25% + LIBO Rate
------------------------
(1 - Reserve Percentage)
"Business Day(s)" means a day of the week (but not a Saturday,
Sunday or holiday) on which the offices of Lender are open to
the public for carrying on substantially all of Lender's
business functions.
"Fixed Rate" is the Applicable LIBO Rate as accepted by Borrower
as an Effective Rate for a particular Fixed Rate Period and
Fixed Rate Portion.
"Fixed Rate Commencement Date" means the date upon which the
Fixed Rate Period commences.
"Fixed Rate Notice" is a written notice in the form shown on
Exhibit B attached to this Note, which confirms the Fixed Rate
for a particular Fixed Rate Period, and the Fixed Rate Portion.
"Fixed Rate Period" is the period or periods of: a) one month,
b) two months, c) three months, d) six months; or e) any other
period of not more than one month which ends at the Maturity
Date, which periods are selected by Borrower and confirmed in
the Fixed Rate Notice; provided that no Fixed Rate Period shall
extend beyond the Maturity Date.
"Fixed Rate Portion" is the entire unpaid principal balance of
this Note in increments of not less than $1,000,000.00.
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"LIBO Rate" is the rate of interest, rounded upward to the
nearest whole multiple of one-sixteenth of one percent (.0625%),
quoted by Lender as the London Inter-Bank Offered Rate for
deposits in U.S. Dollars at approximately 9:00 a.m. California
time, for a Fixed Rate Commencement Date or a Price Adjustment
Date, as appropriate, for purposes of calculating effective
rates of interest for loans or obligations making reference
thereto for an amount approximately equal to a Fixed Rate
Portion and for a period of time approximately equal to a Fixed
Rate Period or the time remaining in a Fixed Rate Period after a
Price Adjustment Date, as appropriate.
"Loan Agreement" is that certain Loan Agreement dated as of
December 22, 2000 between Borrower and Lender.
"Loan Documents" are the documents defined as such in the Loan
Agreement.
"Prime Rate" is a base rate of interest which Lender establishes
from time to time and which serves as the basis upon which
effective rates of interest are calculated for those loans
making reference thereto. Any change in an Effective Rate due to
a change in the Prime Rate shall become effective on the day
each such change is announced within Lender.
"Regulatory Costs" are, collectively, future, supplemental,
emergency or other changes in Reserve Percentages, assessment
rates imposed by the FDIC, or similar requirements or costs
imposed by any domestic or foreign governmental authority and
related in any manner to a Fixed Rate.
"Reserve Percentage" is at any time the percentage announced
within Lender as the reserve percentage under Regulation D for
loans and obligations making reference to an Applicable LIBO
Rate for a Fixed Rate Period or time remaining in a Fixed Rate
Period on a Price Adjustment Date, as appropriate. The Reserve
Percentage shall be based on Regulation D or other regulations
from time to time in effect concerning reserves for Eurocurrency
Liabilities as defined in Regulation D from related institutions
as though Lender were in a net borrowing position, as
promulgated by the Board of Governors of the Federal Reserve
System, or its successor.
"Taxes" are, collectively, all withholdings, interest
equalization taxes, stamp taxes or other taxes (except income
and franchise taxes) imposed by any domestic or foreign
governmental authority and related in any manner to a Fixed
Rate.
"Variable Rate" is a floating rate of interest per annum one and
one half percent (1.50%) in excess of the Prime Rate.
2. EFFECTIVE RATE. The "Effective Rate" upon which interest shall be
calculated for this Note shall be one or more of the following:
2.1 Provided no Default, breach, or failure of condition exists
under the Loan Agreement or any of the Loan Documents described
therein (this Note is one of the Loan Documents):
(a) The Effective Rate accruing on the Fixed Rate Portions
for the Fixed Rate Period thereof shall be the Fixed
Rate selected by Borrower and set in accordance with the
provisions hereof.
2.2 During such time as a Default, breach or failure of condition
exists under the Loan Agreement or any of the Loan Documents; or
from and after the date on which all sums owing under this Note
become due and payable by acceleration or otherwise; or from and
after the date on which the property encumbered by the Deed of
Trust or any portion thereof or interest therein, is sold,
transferred, mortgaged, assigned, or encumbered, whether
voluntarily or involuntarily, or by operation of law or
otherwise, without Lender's prior written consent (whether or
not the sums owing under this Note become due and payable by
acceleration); or from and after the Maturity Date, then at the
option of Lender, the interest rate applicable to the then
outstanding principal balance of this Note shall be the
Alternate Rate.
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3. SELECTION OF FIXED RATE. Provided no Default, breach or failure of
condition exists under the Loan Documents, or would exist with passage
of time or notice or both, Borrower, at its option and upon satisfaction
of the conditions set forth herein, may request a Fixed Rate as the
Effective Rate for calculating interest on the portion of the unpaid
principal balance and for the period selected in accordance with and
subject to the following procedures and conditions:
3.1 Borrower shall deliver to the Disbursement and Operations
Center, 2120 East Park Place, Suite 100, El Segundo, California,
90245, with a copy to: Lender, 555 Montgomery Street, 16th
Floor, San Francisco, California, 94111, Attention: Jay
Rosenberg, or such other addresses as Lender shall designate, an
original or facsimile Fixed Rate Notice no later than 9:00 A.M.
(California time), and not less than three (3) nor more than
five (5) Business Days prior to the proposed Fixed Rate Period
for each Fixed Rate Portion. Any Fixed Rate Notice pursuant to
this Section 3 is irrevocable.
Lender is authorized to rely upon the telephonic request and
acceptance of Joey Cory as Borrower's duly authorized agents, or
such additional authorized agents as Borrower shall designate in
writing to Lender. Borrower's telephonic notices, requests and
acceptances shall be directed to such officers of Lender as
Lender may from time to time designate.
3.2 Borrower may elect to convert a matured Fixed Rate Portion into
a new Fixed Rate Portion, provided, however, that the aggregate
amount of the advance being converted into or continued as a
Fixed Rate Portion shall, in the aggregate, be not less than
$1,000,000.00. The conversion of a matured Fixed Rate Portion to
a new Fixed Rate Portion shall occur on the last Business Day of
the Fixed Rate Period relating to such Fixed Rate Portion. Each
Fixed Rate Notice shall specify (1) the amount of the Fixed Rate
Portion, (2) the Fixed Rate Period, and (3) the Fixed Rate
Commencement Date.
3.3 Upon receipt of a Fixed Rate Notice in the proper form
requesting a Fixed Rate Portion advance under Sections 3.1 and
3.2 above, Lender shall determine the Fixed Rate applicable to
the Fixed Rate Period for such Fixed Rate Portion two (2)
Business Days prior to the beginning of such Fixed Rate Period.
Each determination by Lender of the Fixed Rate shall be
conclusive and binding upon the parties hereto in the absence of
manifest error. Lender shall deliver to Borrower (by facsimile)
an acknowledgment of receipt and confirmation of the Fixed Rate
Notice; provided, however, that failure to provide such
acknowledgment of receipt and confirmation of the Fixed Rate
Notice to Borrower shall not affect the validity of such rate.
3.4 If Borrower does not make a timely election to convert all or a
portion of a matured Fixed Rate Portion into a new Fixed Rate
Portion in accordance with Section 3.2 above, such Fixed Rate
Portion shall be automatically converted back to a one month
Fixed Rate Period upon the expiration of the Fixed Rate Period
applicable to such Fixed Rate Portion.
4. ADMINISTRATION FEE. Upon Borrower's acceptance of a Fixed Rate, Borrower
shall pay to Lender an administration fee of Five Hundred Dollars
($500.00) for each Fixed Rate Portion.
5. FIXED RATE NOTICE. Borrower's selection of a Fixed Rate shall be
delivered to Lender in the form of the Fixed Rate Notice shown on
Exhibit B attached to this Note. Lender shall confirm and deliver to
Borrower acceptance of such Fixed Rate Notice via facsimile. Lender's
failure to deliver the Fixed Rate Notice shall not release Borrower from
Borrower's obligation to pay interest at the Effective Rate pursuant to
the terms hereof.
6. LIMITATIONS ON RIGHT TO FIX RATE. Borrower may request and accept up to
six (6) Fixed Rate quotations at any one time.
7. TAXES, REGULATORY COSTS AND RESERVE PERCENTAGES. Upon Lender's demand,
Borrower shall pay to Lender, in addition to all other amounts which may
be, or become, due and payable under this Note and Loan Documents, any
and all Taxes and Regulatory Costs, to the extent they are not
internalized by calculation of a Fixed Rate. Further, at Lender's
option, the Fixed Rate shall be automatically adjusted by adjusting the
Reserve Percentage, as determined by Lender in its prudent banking
judgment, from the date of imposition (or subsequent date
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selected by Lender) of any such Regulatory Costs. Lender shall give
Borrower notice of any Taxes and Regulatory Costs as soon as practicable
after their occurrence, but Borrower shall be liable for any Taxes and
Regulatory Costs regardless of whether or when notice is so given.
8. FIXED RATE PRICE ADJUSTMENT. Borrower acknowledges that prepayment or
acceleration of a Fixed Rate Portion during a Fixed Rate Period shall
result in Lender's incurring additional costs, expenses and/or
liabilities and that it is extremely difficult and impractical to
ascertain the extent of such costs, expenses and/or liabilities.
Therefore, on the date a Fixed Rate Portion is prepaid or the date all
sums payable hereunder become due and payable, by acceleration or
otherwise ("Price Adjustment Date"), Borrower will pay Lender (in
addition to all other sums then owing to Lender) an amount ("Fixed Rate
Price Adjustment") equal to the then present value of (a) the amount of
interest that would have accrued on the Fixed Rate Portion for the
remainder of the Fixed Rate Period at the Fixed Rate set on the Fixed
Rate Commencement Date, less (b) the amount of interest that would
accrue on the same Fixed Rate Portion for the same period if the Fixed
Rate were set on the Price Adjustment Date at the Applicable LIBO Rate
in effect on the Price Adjustment Date. The present value shall be
calculated by using as a discount rate the LIBO Rate quoted on the Price
Adjustment Date.
By initialing this provision where indicated below, Borrower confirms
that Lender's agreement to make the loan evidenced by this Note at the
interest rates and on the other terms set forth herein and in the other
Loan Documents constitutes adequate and valuable consideration, given
individual weight by Borrower, for this agreement.
BORROWER'S INITIALS:
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9. PURCHASE, SALE AND MATCHING OF FUNDS. Borrower understands, agrees and
acknowledges the following: (a) Lender has no obligation to purchase,
sell and/or match funds in connection with the use of a LIBO Rate as a
basis for calculating a Fixed Rate or Fixed Rate Price Adjustment; (b) a
LIBO Rate is used merely as a reference in determining a Fixed Rate and
Fixed Rate Price Adjustment; and (c) Borrower has accepted a LIBO Rate
as a reasonable and fair basis for calculating a Fixed Rate and a Fixed
Rate Price Adjustment. Borrower further agrees to pay the Fixed Rate
Price Adjustment, Taxes and Regulatory Costs, if any, whether or not
Lender elects to purchase, sell and/or match funds.
10. MISCELLANEOUS. As used in this Exhibit, the plural shall mean the
singular and the singular shall mean the plural as the context requires.
Addresses for the Fixed Rate Notice shall be the same as those for
notices under the Loan Agreement executed in connection with this Note.
This Agreement is executed concurrently with and as part of this Note referred
to and described first above.
"BORROWER"
COMMUNICATIONS & POWER INDUSTRIES
HOLDING CORPORATION
a Delaware corporation
By:
--------------------------------
Its:
--------------------------------
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EXHIBIT B
FIXED RATE NOTICE
TODAY'S DATE: LOAN MATURITY DATE: June 1, 2003
----------------------- ----------------
TO: WELLS FARGO BANK, N.A. LOAN ADMINISTRATOR: Robin Dixon
DISBURSEMENT AND OPERATIONS CENTER ---------------
FAX # (310) 615-1014 or (310) 615-1016 RELATIONSHIP MANAGER: Jay Rosenberg
ATTENTION: RATE OPTION DESK --------------
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BORROWER INTEREST RATE OPTION REQUEST
Rate Quote Line (888) 293-2362 x:472 Use One Form Per Transaction
LOAN #: 1440
----
BORROWER NAME: Communications & Power Industries Holding Corporation
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RATE SET DATE: FIXED RATE COMMENCEMENT DATE: (1350)
------------ ---------------
FIXED RATE PERIOD (TERM): (i.e. 1, 2, 3 months , etc. as allowed per Note)
-----
INDEX: LIBO RATE: % + SPREAD ABOVE LIBO = #'s% (1350)
------ ------- ----------------- ---------------
Quote Spread Applicable Rate
FIXED RATE PORTION EXPIRING ON: $
------------------ -------------------
1. AMOUNT ROLLING OVER $ FROM OBLGN#:
-------- ------
2. ADD: AMT TRANSFERRED FROM
VARIABLE RATE PORTION $ FROM OBLGN#: TO OBLGN#:
-------- ------ --------
(5522) (5020)
3. ADD: AMT TRANSFERRED FROM
OTHER FIXED RATE PORTION $ FROM OBLGN#: TO OBLGN#:
-------- ------ --------
(5522) (5020)
ADD: AMT TRANSFERRED FROM
OTHER FIXED RATE PORTION $ FROM OBLGN#: TO OBLGN#:
-------- ------ --------
(5522) (5020)
4. LESS: AMT TRANSFERRED TO
VARIABLE RATE PORTION $ FROM OBLGN#: TO OBLGN#:
-------- ------ --------
(5522) (5020)
TOTAL FIXED RATE PORTION: $
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ADMINISTRATION FEE DUE: $500.00
---------------
CHARGE FEES TO DDA#: YES, charge DDA DDA#:
------- --------------------
NO, to be remitted PLEASE REMIT FEE TO:
------- 2120 E. PARK PLACE, SUITE 100
EL SEGUNDO, CA 90245
Borrower confirms, represents and warrants to Lender, (a) that this selection of
a Fixed Rate is subject to the terms and conditions of the Note, Fixed Rate
Agreement and Loan Documents (as applicable), and (b) that terms, words and
phrases used but not defined in this Notice have the meanings attributed thereto
in the Note, Fixed Rate Agreement and Loan Documents (as applicable), and (c)
that no breach, failure of condition, or Default has occurred or exists, or
would exist after notice or passage of time or both, under the Note or the Loan
Documents.
REQUESTED BY (as allowed per documents): TELEPHONE #:( )
----------- --- -----------
PRINT NAME: FAX #:( )
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WELLS FARGO BANK ACKNOWLEDGMENT OF RECEIPT AND CONFIRMATION
FIXED RATE EXPIRATION DATE: (2301)
----------------
REQUEST VERIFIED BY: DATE:
------------------------ ----------------------
REQUEST APPROVED BY: DATE:
------------------------ ----------------------
CONFIRMATION FAXED TO CUSTOMER BY: DATE: TIME:
---------- -------- --------
================================================================================
WELLS FARGO BANK OPERATIONS USE ONLY
TRACKING #: LOAN AU: LOAN SU: OBLIGOR #:
------- --------- -------- ----------
CHARGE CODE: 100 BASIS: EARN TYPE: 0 BAL TYPE: 000 (1350)
----- --------- ------- -----
SPECIAL PRODUCT TYPE CODE: (If change required) (2305)
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TDR: NO YES (Fax to loan acctg) UPDATE BILLING SCHEDULE: NO YES (1370)
--- --- --- ---
DATA ENTRY COMPLETED BY: DATE: BATCH ID:
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DATA ENTRY AUDITED BY: DATE:
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