[LOGO OF UBS] Master No. 272-351697
EXHIBIT 10.82
MASTER CREDIT AGREEMENT
1 LENDER
UBS AG
Barenplatz 8
3001 Berne
(referred to below as 'UBS')
2 BORROWER
Staar Surgical AG
Hauptstrasse 104
3560 Nidau
(referred to below as 'the Borrower')
3 CREDIT FACILITY
UBS grants to the Borrower a credit facility in a maximum amount of CHF
5'000'000.-- (Swiss francs five million).
4 FINANCING PURPOSE
General corporate financing purposes
5 ADDITIONAL BORROWER
None
6 AVAILABILITY
Subject to the terms and conditions of this Credit Agreement (Clauses
3, 10 and 11) this credit facility is available for:
Tranche A: Up to a maximum amount of CHF 3'000'000.--
(1) UBS current account in CHF and/or any other freely available
and convertible currency, in accordance with the 'Credit
Terms'.
(2) UBS fixed term advances for periods of 1 - 12 months in an
amount of at least CHF 500'000.-- and/or the equivalent in
any other freely available and convertible currency, in
accordance with the 'Credit Terms'.
Tranche B: Up to a maximum amount of CHF 2'000'000.--
(3) UBS term loans with periods of 1 up to 5 years during the
total life of the loan in an amount of at least CHF 500'000.--
and/or any other freely available and convertible currency, in
accordance with the 'Credit Terms'.
7 CONDITIONS/MARGIN
Interest shall be calculated on a base interest rate plus an individual
margin. An explanation of the base interest rate, margin and
calculation methods is given in the 'Credit Terms'.
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7.1 UBS CURRENT ACCOUNTS
At the present time, the following interest rate for Swiss francs
applies:
Interest rate 5,50 % per annum
Credit commission 0,25 % per quarter, calculated on the
average debit balance
7.2 UBS FIXED TERM ADVANCES
The interest rate will be fixed in accordance with the 'Credit Terms'.
7.3 UBS TERM LOANS
The interest rate will be fixed in accordance with the 'Credit Terms'.
8 COMMITMENT FEE
None
9 FEES / COMMISSIONS
None
10 CANCELLATION/AMORTISATION
Amortisation on Tranche A:
None
Amortisation on Tranche B:
CHF 500'000.-- per annum, payable half-yearly with CHF 250'000.-- each
time on June 30 and on December 31; for the first time on June 30,
2002.
11 TERM OF THE FACILITY / TERMINATION
Until further notice.
Termination shall be effected in accordance with the 'Credit Terms',
whereby UBS may undertake exceptional termination as provided under
Article 2.2.2. if the ownership of/control over the Borrower, who is a
group company is subject to change to a degree deemed, in the opinion
of UBS, to be substantial.
12 SECURITY
The items listed below shall secure all claims of UBS including all
interest and commissions, due and to become due under this Credit
Agreement, etc.
(1) General Purposes Assignment of Claims, in accordance with
separate form 'Global Assignment'.
13 REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that
(1) the Borrower has not created any security interest in respect
of its own obligations and/or the obligations of third parties
other than security given under this Credit Agreement or in
the context of other credit agreements with UBS and/or
security given in favour of other creditors, and which have
been notified to UBS;
(2) no event has occurred which would entitle UBS to effect
extraordinary termination in accordance with the 'Credit
Terms' and no litigation is pending which could have a
materially adverse effect on it or its assets;
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(3) at the time of entering into this Credit Agreement there is no
official order within the context of applicable rules and
regulations regarding the protection of the environment,
namely the Environmental Protection Law and the Clean Water
Act, affecting it or any company controlled by it, which could
have a materially adverse effect on its ability to perform its
financial obligations.
14 POSITIVE COVENANTS
(1) The Borrower undertakes throughout the entire term of this
Credit Agreement to keep his equity in a minimum amount of CHF
15'800'000.--
Equity: Capital, statutory and free reserves, profit carried
forward.
15 NEGATIVE COVENANTS
(1) The Borrower will not enter into any obligation, which is
secured by any mortgage, charge, assignment, pledge or other
encumbrance on the whole or on any part of its revenues,
assets or other property (present or future) and shall not
secure any of its existing debt in the above manner, unless
the benefit of any security is simultaneously extended equally
and rateably to the obligations under this credit facility in
such manner that UBS deems necessary in order that the
obligations under this credit facility will rank pari passu
with all other obligations. This provision shall not apply to
existing security which secures any renewal or extension of
the originally secured obligations.
(2) Furthermore, the Borrower shall not give any guarantee,
indemnity or any other security for any obligation of any of
its directly or indirectly controlled subsidiaries or any
third party. The Borrower shall moreover procure, that each of
its directly or indirectly controlled subsidiaries will not
give any guarantee, indemnity or any other security for any
obligation of any of his directly or indirectly controlled
subsidiaries or any third party. This provision shall not
apply to any guarantee, indemnity or any other security which
is given for the obligations under this credit facility.
(3) The Borrower undertakes throughout the entire term of this
Credit Agreement not to make any repayment under the
shareholder's loan in the amount of CHF 11'834'044.-- (as per
balance sheet of December 31, 1999) without prior consent of
UBS.
16 FINANCIAL RATIOS
The Borrower undertakes during the entire term of the Credit Agreement
at any time to comply with the following key ratio:
Interest coverage factor in the financial statement of the Borrower of
at least 10 x.
The interest coverage factor is calculated as follows: EBITDA in ratio
to interest expenditure.
For the computation of this key financial figure and ratio, the term
listed below shall have the following meaning:
EBITDA: operating profit before interest, taxes, depreciation on
property, plant, equipment, financial investments as well as
amortisation of intangibles (such as goodwill, licences, etc.)
and provisions.
17. INFORMATION
In accordance with the 'Credit Terms'.
In addition, the Borrower undertakes to furnish UBS with the following
information during the entire term of the Credit Agreement:
(1) one copy of the balance sheet and profit and loss account
statement including any appendixes together with the auditors'
report, by no later than four months after the close of the
fiscal year (separately and Staar Company consolidated);
(2) one copy of the budget, including the investment budget, by no
later than 30 calendar days before the start of the relevant
fiscal year (separately and Staar Company consolidated);
Where agreed under Clause 16, UBS shall receive a compliance
certificate, duly signed by the auditor, with the above key figure by
no later than four months after the close of each fiscal year.
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18 CONDITIONS PRECEDENT
The credit facility granted under this Credit Agreement may only be
utilised subject to UBS having received all the documents and/or
security listed hereafter in the required form. Should the documents
and/or security required not be submitted in proper form within one
month from the date of this Credit Agreement, UBS may cancel this
Credit Agreement without need of any further legal formality.
The following documents must be submitted to UBS both in due time and
duly executed;
(1) a copy of this Credit Agreement
(2) a copy of the 'Credit Terms'
(3) 'Global Assignment' in accordance with Clause 12.2 of the
Credit Agreement
(4) 'Repledging of Your Collateral'
19 FURTHER PROVISIONS
(1) The 'General Conditions' as well as the 'Credit Terms' of UBS
shall form an integral part of this Credit Agreement.
20 TRANSFER
UBS is free to offer for transfer or transfer its rights and
obligations under the credit relationship including any collateral
therefor such as certificates of indebtedness or other collateral, in
part or in full, to third parties living in Switzerland and abroad. It
shall be permitted to disclose any information and data collected in
connection with the present Agreement to third parties involved in such
transfer, including rating agencies. Where such third parties are not
subject to Swiss banking secrecy laws, information and data will only
be passed on where they undertake to maintain secrecy and require such
secrecy from possible further contracting partners.
UBS is free, without being required to obtain the client's consent, to
transfer limit obligations as well as other obligations from a credit
relationship to their acquirer together with the claim. The acquirer of
such obligations must either be an associated company of UBS or a Swiss
or foreign financial institution (bank, insurance company or other). To
the extent that UBS transfers an obligation, it shall be freed
therefrom.
21 WAIVER OF SET-OFF
The Borrower waives his right to fulfil his obligations by setting
them off with any claims he may have towards UBS.
22 APPLICABLE LAW AND JURISDICTION
Both this Credit Agreement and the 'Credit Terms' shall be exclusively
governed by and construed in accordance with Swiss law. The place of
performance, the place of debt collection (only for persons domiciled
outside of Switzerland) as well as the exclusive place of jurisdiction
for any disputes arising out of and in connection with this agreements
shall be Berne.
UBS reserves the right, however, to take legal action at the domicile
of the Borrower or any other competent authority, in which event
exclusively Swiss law shall remain applicable.
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This contract is executed in 3 original copies and replaces the contract dated
December 29, 1997/August 21, 1998.
Berne, November 27,2000 UBS AG
FOIK/FAC2-YVQ
/s/ Norbert Schacht /s/ Marco Speichinger
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Norbert Schacht Marco Speichinger
In agreement: Staar Surgical AG
Nidau, 15/12/00 /s/ Deborah J. Andrews
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Place, date Deborah J. Andrews
In agreement
With Clause 11+15.3.: Staar Surgical Co., Monrovia / USA
Monrovia CA 12/29/00 /s/ John Santos
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Place, date John Santos
We hereby confirm the authenticity of the signatures of Staar Surgical Company,
Monrovia. The above signatures are legally binding Staar Surgical Company,
Monrovia.
Staar Surgical AG
/s/ Nidau, 15/12/00 /s/ Deborah J. Andrews
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Place, date Deborah J. Andrews
[LOGO OF UBS] Master No. 272-351697
CREDIT TERMS
These 'Credit Terms' together with the 'General Conditions' of UBS AG
(hereinafter UBS) are valid for all Credit Agreements in which they are started
to be applicable. A Clause is a reference to a Clause in the relevant Credit
Agreement.
These 'Credit Terms' shall cease to apply once all obligations under the
relevant Credit Agreement have been repaid or are otherwise definitively
extinguished and the credit lines concerned have been cancelled.
DEFINITION GROUP COMPANIES
Group Company shall mean any company in accordance with artice 563 lit. (e)
paragraph 1 of the Swiss Code of Obligations.
1. CONDITIONS/MARGIN (CLAUSE 7 OF THE CREDIT AGREEMENT)
1.1 CONDITIONS
1.1.1 INTEREST CALCULATIONS
Interest will be calculated based on a 365/360 year, i.e. actual number of days
per month on the basis of a 360-day year. Calculation methods used for selected
foreign currencies, UBS portfolio mortgage and UBS variable mortgage are
available upon request.
1.1.2 UBS CURRENT ACCOUNT
Accrued Interest and commission will be charged quarterly at the end of each
calendar quarter. Prior written notice of any interest rate changes will be
provided.
1.1.3 UBS FIXED TERM ADVANCE/UBS ROLL-OVER LOAN AND UBS ROLL-OVER MORTGAGE
For any advance, loan and/or mortgage with a term of up to and 6 months,
principal and interest will be calculated upon expiration of the term. For any
advance, loan and/or mortgage with a term of more than 6 months, principal and
interest will be calculated quarterly at the end of each calendar quarter as
well as upon expiration of the term.
The base interest rate used follows Euromarket conditions for loans of the
corresponding term and currency. Where no extension of the term is agreed, both
interest and principal will be charged to the relevant current account in each
case.
The interest rate will be fixed two bank working days prior to drawdown or
renewal for the corresponding term and currency. The instructions for drawdown
or renewal must be received by UBS at least two bank working days before such
drawdown or renewal. Where such instructions are unavailable, advances falling
due will not be renewed and both principal and interest will be debited to the
relevant current account.
1.1.4 UBS TERM LOAN
Interest will be calculated and debited quarterly at the end of each calendar
quarter as well as upon expiration of the term of the loan.
The base interest rate used follows Euromarket conditions for loans of the
corresponding term and currency. Interest will be charged to the relevant
current account. The interest rate will be set two bank working days before
drawdown, and will be fixed for the entire term agreed. The instructions for
receipt of funds must be received by UBS at least two bank working days before
drawdown.
1.1.5 UBS FIXED MORTGAGE
Interest will be calculated and debited quarterly at the end of each calendar
quarter as well as upon final expiration of the term of the mortgage.
The base interest rate used follows Euromarket conditions. Interest will be
charged to the relevant current account. The interest rate will be fixed two
bank working days prior to drawdown, and will be fixed for the entire term
agreed. The instructions for drawdown must be received by UBS at least two bank
working days before drawdown.
1.1.6 UBS PORTFOLIO MORTGAGE
Interest will be calculated and debited quarterly at the end of each calendar
quarter. Interest will be charged to the current account.
The base interest rate is the average of the fixed interest rates of all the
portfolio's capital tranches. At the end of each calendar quarter, a capital
tranche of the portfolio becomes due and will immediately be replaced with a new
tranche at current market conditions (Interbank rate SWIBOR = Swap Interbank
Offered Rate, for the agreed interest period, plus 0,15% p.a. capital costs).
Hence, the portfolio's base interest rate changes quarterly. The base interest
rate applying from time to time will be published in the media. The publication
in 'Investdata' shall prevail.
1.1.7 UBS LIBOR MORTGAGE
Interest will be calculated and debited semi-annually, on the last day in the
months of June and December on which banks are open for business in London. The
6-month CHF LIBOR will be used as the base interest rate. For each 6 month
interest period the interest rate will be fixed 2 bank working days before the
day of disbursement or the interest due date as the case may be and communicated
in writing.
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If disbursement of the mortgage does not take place on the first day of the
first 6 month interest period, UBS will fix the basic interest rate for the
period from the first day of such interest period to the date disbursement
actually takes place based on the Euromarket interest rate applicable for that
period (plus margin) and will communicate the rate in writing.
1.1.8 UBS VARIABLE MORTGAGE
Interest will be calculated and debited quarterly at the end of each calendar
quarter. Interest will be debited to the relevant current account. Prior written
notice of any interest, rate changes will be provided.
1.2 MARGIN
An individual margin will be added to the base interest rates applicable for the
relevant form of utilization.
2 TERMINATION (CLAUSE 11 OF THE CREDIT AGREEMENT)
2.1 ORDINARY TERMINATION
2.1.1 ORDINARY TERMINATION BY THE BORROWER
The Borrower may at any time terminate the Credit Agreement with immediate
effect. Where the Borrower gives notice of termination, such notice shall also
be binding for every Additional Borrower. The unused portion of any committed
credit lines may be cancelled in whole or in part with effect from the end of a
quarter by giving not less than 30 calendar days prior notice. The credit
facility will immediately be reduced by the amount of such cancellation. Where
credit lines have been used, the outstanding amounts will become due for
repayment in accordance with Clause 2.1.2.
2.1.2 ORDINARY TERMINATION BY UBS
UBS may terminate the Credit Agreement with immediate effect and refuse any
drawdown in respect of uncommitted credit lines in its absolute discretion and
without giving reasons therefor. The unused portion of any uncommitted credit
line will be cancelled with immediate effect upon termination. Where credit
lines have been used, the outstanding amounts will become due for repayment as
follows:
- - UBS current account
immediately
- - UBS fixed term advance
upon expiration of the fixed term
- - UBS term loan/UBS fixed mortgage/UBS roll-over loan/UBS roll-over
mortgage
upon expiration of the term agreed in clause 11 of the applicable
Credit Agreement.
- - UBS variable mortgage/UBS portfolio mortgage
upon the expiration of the advance notice period of 90 calendar days
Letters of credit and guarantees issued by UBS shall remain fully valid, and the
Borrower shall remain liable in relation thereto, in accordance with the
relevant terms and provision.
2.2 EXTRAORDINARY TERMINATION
2.2.1 EXTRAORDINARY TERMINATION BY THE BORROWER
The Borrower may at any time upon giving 30 calendar days prior notice terminate
the Credit Agreement in whole or in part and repay any outstanding amounts or
have repayment effectuated by the Additional Borrowers. If prepayment is made
during an interest period or on a date other than the agreed repayment date, an
indemnity pursuant to paragraph 4.3 'Indemnity' shall be payable on the actual
day prepayment is made.
2.2.2 EXTRAORDINARY TERMINATION BY UBS
UBS has the right to terminate the Credit Agreement with immediate effect at any
time, and to declare all outstanding amounts including accrued interest,
commissions, fees etc., immediately due and payable - irrespective of the term
of any credit facility granted - in the event that:
(1) the Borrower or a Group Company is in breach of a representation or
warranty (Clause 13 of the Credit Agreement) or defaults in the
performance of a covenant (Clause 14 to 17 of the Credit Agreement);
(2) The Borrower or a Group Company fails to pay UBS or a third party
(including any acquirers of credit claims) principal, interest and/or
commissions on the due date therefor and such failure continues for a
period of 30 calendar days, or fails to reduce overdrafts by repayment
or to furnish sufficient additional security within any period set by
UBS;
(3) the Borrower or one of its Group Companies changes its legal or
commercial structure, e.g. through liquidation, sale of a substantial
part of its assets, change to its objects and business activities,
merger or restructuring, provided that the relevant event has a
material effect on its ability to perform its financial obligations;
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(4) the Borrower or a Group Company becomes subject to a duty to effect
restorative works due to an official order under applicable regulations
designed to protect the environment, namely the Environmental
Protection Law and Clean Water Act such duty having a material adverse
effect on its ability to perform its financial obligations;
(5) a material reduction of the value of the security is threatened or has
occurred;
(6) debt collection proceedings are initiated against the Borrower or a
Group Company, assets are seized within the context of such debt
collection proceedings or there is a material adverse change in the
financial condition of the Borrower or a Group Company;
(7) there is a change of ownership of the whole or any part of any
mortgaged property.
If at the time of the extraordinary termination letters of credit or guarantees
issued by UBS are outstanding, the Borrower and/or the relevant Additional
Borrower undertake to release UBS from these contingent commitments immediately
or will secure such commitments by granting to UBS a pledge of assets deemed
acceptable by UBS up to the full amount of those commitments plus the usual bank
margin.
3 INFORMATION (CLAUSE 17 OF THE CREDIT AGREEMENT)
The Borrower and each of the Additional Borrowers hereby undertake to inform UBS
immediately during the term of the Credit Agreement of any material changes; and
in particular, if any circumstances become apparent or occur which may be or
become an event giving UBS the right of extraordinary termination.
The Borrower further undertakes to provide UBS on request, and in addition to
the information obligations entered into under the Credit Agreement with further
information regarding individual positions figuring in the financial statements
and the budget.
Where security exists in the form of a third party guarantee/indemnity/letter of
comfort, the Borrower undertakes to ensure that the information obligations
applicable to it will also be complied with by the relevant third party.
Where real estate financed by UBS is leased or rented in whole or in part to
third parties, UBS shall, without having to request such, on an annual basis, be
provided with a list of current tenants, simultaneously with the closing balance
documents. Such list shall include real estate accounts showing gross and net
rents, any rent reductions and empty properties, and in the case of commercial
real estate these accounts must also show the term of the lease and any index
clauses.
4 FURTHER PROVISIONS (CLAUSE 19 OF THE CREDIT AGREEMENT)
4.1 PAYMENTS
All payments must be made in freely transferable currency by crediting an
account in the country of the currency. UBS shall designate the relevant
account. If repayment in any such currency becomes unlawful or illegal due to
changes in the applicable law, repayment of the amount concerned shall take
place in Swiss francs at a rate fixed by UBS.
In the event that a payment falls due on a day that is not a bank working day,
the next bank working day shall be deemed to be the due date therefor.
4.2 INCREASED COST
In the event that increased costs are incurred by UBS due to official
regulations, for example the introduction of minimum reserves, credit taxation
or alterations in equity capital underpinning rates, these additional expenses
must be borne by the Borrower or the relevant Additional Borrower as
appropriate. In such cases, UBS will be entitled to increase correspondingly the
relevant interest/fees/commissions from the next following payment dates
onwards, subject however to advance notice of at least 30 calendar days.
If UBS is forced to increase the interest/fees/commissions in accordance with
this clause, the Borrower or the relevant Additional Borrower, as appropriate,
shall be entitled repay the credit/drawn funds affected by such increase
together with interest fees on the next following payment date, subject however
to an advance notice period of at least 30 calendar days. The costs of such
early repayment, such as those described under clause 4.3 'Indemnity' below must
be borne by the Borrower or the relevant Additional Borrower.
4.3 INDEMNITY
If
(1) amounts outstanding are declared by UBS to be due for early repayment,
or
(2) amounts outstanding are prepaid by the Borrower or the relevant
Additional Borrower, or
(3) after the receipt of a drawdown notice therefor for any reason not
attributable to UBS the corresponding payment is not made,
the Borrower or the relevant Additional Borrower shall indemnify UBS for any
disadvantage and/or costs that may have arisen thereby, for example in relation
to the potential difference between its base interest rate at the time and the
reinvestment rate which UBS could obtain on the Euromarket for the corresponding
currency and remaining term.
This shall not affect the right of UBS to receive additional indemnities under a
separate Credit Agreement.
This shall not affect the validity of the special provisions in respect of the
UBS portfolio mortgage.
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4.4 PRIORITY
Where several assets are pledged to satisfy the obligations to UBS, UBS shall
decide in its absolute discretion the extent and order of realization, and the
allocation of the proceeds of sale of such assets.
4.5 CONSIDERATION OF DRAWN FUNDS
Drawn funds will be counted towards the credit line in the currency of the
credit line (with foreign currencies being converted at the respective daily
rate).
4.6 EXCESS DRAWINGS
All excess drawings (Including excess of tranches or of maximum amounts agreed
under the Credit Agreement together with excesses arising due to changes in
currency exchange rates) shall be repaid within a time set by UBS or secured by
pledging of assets deemed acceptable by UBS to the value of such excess plus the
usual bank margin. Foreign currencies will be converted into the currency of the
facility in accordance with Clause 3 of the Credit Agreement at the spot rate
notified by UBS.
4.7 CONFLICTING PROVISIONS
In the event of conflict between interest, payment and/or termination provisions
stated in any mortgage deed and between the 'General Conditions' as well as the
'Credit Terms' and the corresponding Credit Agreement, the Credit Agreement
shall prevail.
This document has been executed in 3 original copies.
Berne, November 27, 2000 UBS AG
FOIK/FAC2-YVQ
/s/ Norbert Schacht /s/ Marco Speichinger
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Norbert Schacht Marco Speichinger
In agreement: Staar Surgical AG
Nidau, 15/12/00 /s/ Deborah Andrews
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Place, date Deborah J. Andrews
In agreement: Staar Surgical Co., Monrovia/USA
Monrovia CA USA 12/29/00 /s/ John Santos
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Place, date John Santos