exv10w1



 





Exhibit 10.1









LOAN AGREEMENT



This Agreement dated as of January 2, 2008, is between Bank of America, N.A. (the “Bank”) and
Newport Corporation (the “Borrower”).





	1.	 	FACILITY NO. 1: LINE OF CREDIT AMOUNT AND TERMS
	 
	1.1	 	Line of Credit Amount.
	 
	(a)	 	During the availability period described below, the Bank will provide a line of credit to the
Borrower. The amount of the line of credit (the “Facility No. 1 Commitment”) is Five Million
and 00/100 Dollars ($5,000,000.00).
	 
	(b)	 	This is a revolving line of credit. During the availability period, the Borrower may repay
principal amounts and reborrow them.
	 
	(c)	 	The Borrower agrees not to permit the principal balance outstanding to exceed the Facility
No. 1 Commitment. If the Borrower exceeds this limit, the Borrower will immediately pay the
excess to the Bank upon the Bank’s demand.




1.2    Availability Period. The line of credit is available between the date of this
Agreement and December 1, 2008, or such earlier date as the availability may terminate as provided
in this Agreement (the “Expiration Date”).



The availability period for this line of credit will be considered renewed if and only if the Bank
has sent to the Borrower a written notice of renewal effective as of the Expiration Date for the
line of credit (the “Renewal Notice”). If this line of credit is renewed, it will continue to be
subject to all the terms and conditions set forth in this Agreement . If this line of credit is
renewed, the term “Expiration Date” shall mean the date set forth in the Renewal Notice as the
Expiration Date and the same process for renewal will apply to any subsequent renewal of this line
of credit. A renewal fee may be charged at the Bank’s option. The amount of the renewal fee, if
any, will be mutually agreed upon by the parties and specified in the Renewal Notice.





	1.3	 	Repayment Terms.
	 
	(a)	 	The Borrower will pay interest on January 1, 2008, and then on the same day of each month
thereafter until payment in full of any principal outstanding under this facility.
	 
	(b)	 	The Borrower will repay in full any principal, interest or other charges outstanding under
this facility no later than the Facility No. 1 Expiration Date. Any interest period for an
optional interest rate (as described below) shall expire no later than the Facility No. 1
Expiration Date.
	 
	(c)	 	Prepayments of any principal outstanding for which the interest rate is the Prime
Rate (as defined below) may be made in whole or in part at any time with no prepayment fee.
Prepayments of any Portion (as defined below) will be subject to a prepayment fee as set forth
in Sections 2.2(f) and 2.2(g) below.
	 
	1.4	 	Interest Rate.
	 
	(a)	 	The interest rate is a rate per year equal to the Bank’s Prime Rate.
	 
	(b)	 	The Prime Rate is the rate of interest publicly announced from time to time by the Bank as
its Prime Rate. The Prime Rate is set by the Bank based on various factors, including the
Bank’s costs and desired return, general economic conditions and other factors, and is used as
a reference point for pricing some loans. The Bank may price loans to its customers at,
above, or below the Prime Rate. Any change in the Prime Rate shall take effect at the opening
of business on the day specified in the public announcement of a change in the Bank’s Prime
Rate.




1.5    Optional Interest Rates. Instead of the interest rate based on the rate stated in the
paragraph entitled “Interest Rate” above, the Borrower may elect the optional interest rates listed
below for this Facility No. 1 during interest periods agreed to by the Bank and the Borrower. The
optional interest rates shall be subject to the terms and conditions




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described later in this Agreement. Any principal amount bearing interest at an optional rate under this Agreement is
referred to as a “Portion.” The following optional interest rates are available:





	(a)	 	The LIBOR Rate plus 1.25 percentage point(s).
	 
	1.6	 	Letters of Credit.
	 
	(a)	 	During the availability period, at the request of the Borrower, the Bank will issue:






	 	(i)	 	commercial letters of credit with a maximum maturity of ninety (90) days but not
to extend more than ninety (90) days beyond the Facility No. 1 Expiration Date. Each
commercial letter of credit will require drafts payable at sight.
	 
	 	(ii)	 	standby letters of credit with a maximum maturity of three hundred sixty-five
(365) days but not to extend more than three hundred sixty-five (365) days beyond the
Facility No. 1 Expiration Date. The standby letters of credit may include a provision
providing that the maturity date will be automatically extended each year for an
additional year unless the Bank gives written notice to the contrary; provided, however,
that each letter of credit must include a final maturity date which will not be subject
to automatic extension.






	(b)	 	The amount of the letters of credit outstanding at any one time (including the drawn and
unreimbursed amounts of the letters of credit) may not exceed Five Million and 00/100 Dollars
($5,000,000).
	 
	(c)	 	In calculating the principal amount outstanding under the Facility No. 1 Commitment, the
calculation shall include the amount of any letters of credit outstanding, including amounts
drawn on any letters of credit and not yet reimbursed.
	 
	(d)	 	The following letters of credit are outstanding from the Bank for the account of the
Borrower:





	 	 	 	 	 
	Letter of Credit Number	 	Amount
	3051504 

	 	$1,000,000.00	 





As of the date of this Agreement, these letters of credit shall be deemed to be outstanding under
this Agreement, and shall be subject to all the terms and conditions stated in this Agreement.





	(e)	 	The Borrower agrees:






	 	(i)	 	Any sum drawn under a letter of credit may, at the option of the Bank, be added
to the principal amount outstanding under this Agreement. The amount will bear interest
and be due as described elsewhere in this Agreement.
	 
	 	(ii)	 	If there is a default under this Agreement, to immediately prepay and make the
Bank whole for any outstanding letters of credit.
	 
	 	(iii)	 	The issuance of any letter of credit and any amendment to a letter of credit is
subject to the Bank’s written approval and must be in form and content satisfactory to
the Bank and in favor of a beneficiary acceptable to the Bank.
	 
	 	(iv)	 	To sign the Bank’s form Application and Agreement for Commercial Letter of Credit
or Application and Agreement for Standby Letter of Credit, as applicable.
	 
	 	(v)	 	To pay any issuance and/or other fees that the Bank notifies the Borrower will be
charged for issuing and processing letters of credit for the Borrower.
	 
	 	(vi)	 	To allow the Bank to automatically charge its checking account for applicable
fees, discounts, and other charges.





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	 	(vii)	 	To pay the Bank a non-refundable fee equal to 1.25% per annum of the outstanding
undrawn amount of each standby letter of credit, payable quarterly in advance,
calculated on the basis of the face amount outstanding on the day the fee is calculated.
	 
	 	(viii)	 	with respect to any letter of credit that remains outstanding after the Facility No. 1
Expiration Date, promptly to pledge cash collateral in an amount to fully secure the Borrower’s
reimbursement obligations, under documentation acceptable to the Bank.






	2.	 	OPTIONAL INTEREST RATES




2.1    Optional Rates. Each optional interest rate is a rate per year. Interest will be paid
on January 1, 2008, and then on the same day of each month thereafter until payment in full of any
principal outstanding under this Agreement. No Portion will be converted to a different interest
rate during the applicable interest period. Upon the occurrence of an event of default under this
Agreement, the Bank may terminate the availability of optional interest rates for interest periods
commencing after the default occurs. At the end of each interest period, the interest rate will
revert to the rate stated in the paragraph(s) entitled “Interest Rate” above, unless the Borrower
has designated another optional interest rate for the Portion.





	2.2	 	LIBOR Rate. The election of LIBOR Rates shall be subject to the following terms and
requirements:
	 
	(a)	 	The interest period during which the LIBOR Rate will be in effect will be one month, two
months or three months. The first day of the interest period must be a day other than a
Saturday or a Sunday on which banks are open for business in New York and London and dealing
in offshore dollars (a “LIBOR Banking Day”). The last day of the interest period and the
actual number of days during the interest period will be determined by the Bank using the
practices of the London inter-bank market.
	 
	(b)	 	Each LIBOR Rate portion will be for an amount not less than One Hundred Thousand and 00/100
Dollars ($100,000.00).
	 
	(c)	 	The “LIBOR Rate” means the interest rate determined by the following formula. (All amounts
in the calculation will be determined by the Bank as of the first day of the interest period.)





	 	 	 	 	 	 	 
	 

	 	LIBOR Rate =
	 	London Inter-Bank Offered Rate
	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	(1.00 — Reserve Percentage)	 	 







	 	 	Where,






	 	(i)	 	“London Inter-Bank Offered Rate” means for any applicable interest period, the
rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as
published by Reuters (or other commercially available source providing quotations of BBA
LIBOR as selected by the Bank from time to time) at approximately 11:00 a.m. London time
two (2) London Banking Days before the commencement of the interest period for U.S.
Dollar deposits (for delivery on the first day of such interest period) with a term
equivalent to such interest period. If such rate is not available at such time for any
reason then the rate for that interest period will be determined by such alternate
method as reasonably selected by the Bank. A “London Banking Day” is a day on which
banks in London are open for business and dealing in offshore dollars.
	 
	 	(ii)	 	“Reserve Percentage” means the total of the maximum reserve percentages for
determining the reserves to be maintained by member banks of the Federal Reserve System
for Eurocurrency Liabilities, as defined in Federal Reserve Board Regulation D, rounded
upward to the nearest 1/100 of one percent. The percentage will be expressed as a
decimal, and will include, but not be limited to, marginal, emergency, supplemental,
special, and other reserve percentages.






	(d)	 	The Borrower shall irrevocably request a LIBOR Rate Portion no later than 12:00 noon Pacific
time on the LIBOR Banking Day preceding the day on which the London Inter-Bank Offered Rate
will be set, as specified above. For example, if there are no intervening holidays or weekend
days in any of the relevant locations, the request must be made at least three days before the
LIBOR Rate takes effect.
	 
	(e)	 	The Bank will have no obligation to accept an election for a LIBOR Rate Portion if any of the
following described events has occurred and is continuing:





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	 	(i)	 	Dollar deposits in the principal amount, and for periods equal to the interest
period, of a LIBOR Rate Portion are not available in the London inter-bank market; or
	 
	 	(ii)	 	The LIBOR Rate does not accurately reflect the cost of a LIBOR Rate Portion.






	(f)	 	Each prepayment of a LIBOR Rate Portion, whether voluntary, by reason of acceleration or
otherwise, will be accompanied by the amount of accrued interest on the amount prepaid and a
prepayment fee as described below. A “prepayment” is a payment of an amount on a date earlier
than the scheduled payment date for such amount as required by this Agreement.
	 
	(g)	 	The prepayment fee shall be in an amount sufficient to compensate the Bank for any loss, cost
or expense incurred by it as a result of the prepayment, including any loss of anticipated
profits and any loss or expense arising from the liquidation or reemployment of funds obtained
by it to maintain such Portion or from fees payable to terminate the deposits from which such
funds were obtained. The Borrower shall also pay any customary administrative fees charged by
the Bank in connection with the foregoing. For purposes of this paragraph, the Bank shall be
deemed to have funded each Portion by a matching deposit or other borrowing in the applicable
interbank market, whether or not such Portion was in fact so funded.
	 
	3.	 	COLLATERAL




3.1    Personal Property. The personal property listed below now owned or owned in the future
by the parties listed below will secure the Borrower’s obligations to the Bank under this
Agreement. The collateral is further defined in security agreement(s) executed by the owners of
the collateral. In addition, all personal property collateral owned by the Borrower securing this
Agreement shall also secure all other present and future obligations of the Borrower to the Bank
arising under this Agreement (excluding any consumer credit covered by the federal Truth in Lending
law, unless the Borrower has otherwise agreed in writing or received written notice thereof). All
personal property collateral securing any other present or future obligations of the Borrower to
the Bank shall also secure this Agreement.





	(a)	 	Securities and other investment property owned by the Borrower as described in the Commercial
Pledge Agreement dated August 12, 2005 between the borrower and the Bank.




Regulation U of the Board of Governors of the Federal Reserve System places certain restrictions on
loans secured by margin stock (as defined in the Regulation). The Bank and the Borrower shall
comply with Regulation U. If any of the collateral is margin stock, the Borrower shall provide to
the Bank a Form U-1 Purpose Statement.





	4.	 	FEES AND EXPENSES
	 
	4.1	 	Fees.
	 
	(a)	 	Unused Commitment Fee. The Borrower agrees to pay a fee on any difference between
the Facility No. 1 Commitment and the amount of credit it actually uses, determined by the
average of the daily amount of credit outstanding during the specified period. The fee will
be calculated at 0.25% per year. The calculation of credit outstanding shall include the
undrawn amount of letters of credit.
	 
	 	 	This fee is due on December 31, 2007, and on the same day of each following quarter until the
expiration of the availability period.
	 
	(b)	 	Waiver Fee. If the Bank, at its discretion, agrees to waive or amend any terms of
this Agreement, the Borrower will, at the Bank’s option, pay the Bank a fee for each waiver or
amendment in an amount advised by the Bank and agreed upon by the Borrower at the time the
Borrower requests the waiver or amendment. Nothing in this paragraph shall imply that the
Bank is obligated to agree to any waiver or amendment requested by the Borrower. The Bank may
impose additional requirements as a condition to any waiver or amendment.
	 
	(c)	 	Late Fee. To the extent permitted by law, the Borrower agrees to pay a late fee in
an amount not to exceed four percent (4%) of any payment that is more than fifteen (15) days
late. The imposition and payment of a late fee shall not constitute a waiver of the Bank’s
rights with respect to the default.




4.2    Expenses. The Borrower agrees to immediately repay the Bank for reasonable expenses
that include, but are not limited to, filing, recording and search fees, appraisal fees, title
report fees, and documentation fees.




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	5.	 	DISBURSEMENTS, PAYMENTS AND COSTS
	 
	5.1	 	Disbursements and Payments.
	 
	(a)	 	Each payment by the Borrower will be made in U.S. Dollars and immediately available funds by
direct debit to a deposit account as specified below or, for payments not required to be made
by direct debit, by mail to the address shown on the Borrower’s statement or at one of the
Bank’s banking centers in the United States.
	 
	(b)	 	Each disbursement by the Bank and each payment by the Borrower will be evidenced by records
kept by the Bank. In addition, the Bank may, at its discretion, require the Borrower to sign
one or more promissory notes.
	 
	5.2	 	Telephone and Telefax Authorization.
	 
	(a)	 	The Bank may honor telephone or telefax instructions for advances or repayments or for the
designation of optional interest rates and telefax requests for the issuance of letters of
credit given, or purported to be given, by any one of the individuals authorized to sign loan
agreements on behalf of the Borrower, or any other individual designated by any one of such
authorized signers.
	 
	(b)	 	Advances will be deposited in and repayments will be withdrawn from account number CA -
14592-06005 owned by the Borrower or such other of the Borrower’s accounts with the Bank as
designated in writing by the Borrower.
	 
	(c)	 	The Borrower will indemnify and hold the Bank harmless from all liability, loss, and costs in
connection with any act resulting from telephone or telefax instructions the Bank reasonably
believes are made by any individual authorized by the Borrower to give such instructions.
This paragraph will survive this Agreement’s termination, and will benefit the Bank and its
officers, employees, and agents.
	 
	5.3	 	Direct Debit (Pre-Billing).
	 
	(a)	 	The Borrower agrees that the Bank will debit deposit account number CA — 14592-06005 owned by
the Borrower or such other of the Borrower’s accounts with the Bank as designated in writing
by the Borrower (the “Designated Account”) on the date each payment of principal and interest
and any fees from the Borrower becomes due (the “Due Date”).
	 
	(b)	 	Prior to each Due Date, the Bank will mail to the Borrower a statement of the amounts that
will be due on that Due Date (the “Billed Amount”). The bill will be mailed a specified
number of calendar days prior to the Due Date, which number of days will be mutually agreed
from time to time by the Bank and the Borrower. The calculations in the bill will be made on
the assumption that no new extensions of credit or payments will be made between the date of
the billing statement and the Due Date, and that there will be no changes in the applicable
interest rate.
	 
	(c)	 	The Bank will debit the Designated Account for the Billed Amount, regardless of the actual
amount due on that date (the “Accrued Amount”). If the Billed Amount debited to the
Designated Account differs from the Accrued Amount, the discrepancy will be treated as
follows:






	 	(i)	 	If the Billed Amount is less than the Accrued Amount, the Billed Amount for the
following Due Date will be increased by the amount of the discrepancy. The Borrower
will not be in default by reason of any such discrepancy.
	 
	 	(ii)	 	If the Billed Amount is more than the Accrued Amount, the Billed Amount for the
following Due Date will be decreased by the amount of the discrepancy.
	 
	 	Regardless of any such discrepancy, interest will continue to accrue based on the actual
amount of principal outstanding without compounding. The Bank will not pay the Borrower
interest on any overpayment.






	(d)	 	The Borrower will maintain sufficient funds in the Designated Account to cover each debit.
If there are insufficient funds in the Designated Account on the date the Bank enters any
debit authorized by this Agreement, the Bank may reverse the debit.
	 
	(e)	 	The Borrower may terminate this direct debit arrangement at any time by sending written
notice to the Bank at the address specified at the end of this Agreement. If the Borrower
terminates this arrangement, then the principal





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	 	 	amount outstanding under this Agreement will at the option of the Bank bear interest at a
rate per annum which is 0.5 percentage point(s) higher than the rate of interest otherwise
provided under this Agreement.




5.4    Banking Days. Unless otherwise provided in this Agreement, a banking day is a day
other than a Saturday, Sunday or other day on which commercial banks are authorized to close, or
are in fact closed, in the state where the Bank’s lending office is located, and, if such day
relates to amounts bearing interest at an offshore rate (if any), means any such day on which
dealings in dollar deposits are conducted among banks in the offshore dollar interbank market. All
payments and disbursements which would be due on a day which is not a banking day will be due on
the next banking day. All payments received on a day which is not a banking day will be applied to
the credit on the next banking day.



5.5    Interest Calculation. Except as otherwise stated in this Agreement, all interest and
fees, if any, will be computed on the basis of a 360-day year and the actual number of days
elapsed. This results in more interest or a higher fee than if a 365-day year is used.
Installments of principal which are not paid when due under this Agreement shall continue to bear
interest until paid.



5.6    Default Rate. Upon the occurrence of any default or after maturity or after judgment
has been rendered on any obligation under this Agreement, all amounts outstanding under this
Agreement, including any interest, fees, or costs which are not paid when due, will at the option
of the Bank bear interest at a rate which is 6.0 percentage point(s) higher than the rate of
interest otherwise provided under this Agreement. This may result in compounding of interest.
This will not constitute a waiver of any default.





	6.	 	CONDITIONS




Before the Bank is required to extend any credit to the Borrower under this Agreement, it must
receive, in form and content acceptable to the Bank, the items specifically listed below.



6.1    Authorizations. If the Borrower or any guarantor is anything other than a natural
person, evidence that the execution, delivery and performance by the Borrower and/or such guarantor
of this Agreement and any instrument or agreement required under this Agreement have been duly
authorized.



6.2    Governing Documents. If required by the Bank, a copy of the Borrower’s organizational
documents.



6.3    Security Agreements. Signed original security agreements covering the personal
property collateral which the Bank requires.



6.4    Perfection and Evidence of Priority. Evidence that the security interests and liens in
favor of the Bank are valid, enforceable, properly perfected in a manner acceptable to the Bank and
prior to all others’ rights and interests, except those the Bank consents to in writing. All title
documents for motor vehicles which are part of the collateral must show the Bank’s interest.





	6.5	 	Payment of Fees. Payment of all fees and other amounts due and owing to the Bank.
	 
	6.6	 	Good Standing. Certificates of good standing for the Borrower from its state of formation.
	 
	6.7	 	Insurance. Evidence of insurance coverage, as required in the “Covenants” section of this Agreement.
	 
	7.	 	REPRESENTATIONS AND WARRANTIES




When the Borrower signs this Agreement, and until the Bank is repaid in full, the Borrower makes
the following representations and warranties. Each request for an extension of credit constitutes
a renewal of these representations and warranties as of the date of the request:



7.1    Formation. If the Borrower is anything other than a natural person, it is duly formed
and existing under the laws of the state or other jurisdiction where organized.



7.2    Authorization. This Agreement, and any instrument or agreement required hereunder, are
within the Borrower’s powers, have been duly authorized, and do not conflict with any of its
organizational papers.




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7.3    Enforceable Agreement. This Agreement is a legal, valid and binding agreement of the
Borrower, enforceable against the Borrower in accordance with its terms, and any instrument or
agreement required hereunder, when executed and delivered, will be similarly legal, valid, binding
and enforceable.



7.4    Good Standing. In each state in which the Borrower does business, it is properly
licensed, in good standing, and, where required, in compliance with fictitious name statutes,
except in such states in which failure to be licensed, in good standing and/or in compliance with
fictitious name states would not have a material adverse effect on the Borrower’s business or
financial condition.



7.5    No Conflicts. This Agreement does not conflict with any law, agreement, or obligation
by which the Borrower is bound.



7.6    Financial Information. All financial and other information that has been or will be
supplied to the Bank is sufficiently complete to give the Bank accurate knowledge of the Borrower’s
(and any guarantor’s) financial condition, including all material contingent liabilities that would
be required to be disclosed under Generally Accepted Accounting Principals. Since the date of the
most recent financial statement provided to the Bank, there has been no material adverse change in
the financial condition of the Borrower (or any guarantor). If the Borrower is comprised of the
trustees of a trust, the foregoing representations shall also pertain to the trustor(s) of the
trust.



7.7    Lawsuits. There is no lawsuit, tax claim or other dispute pending or threatened
against the Borrower which, if lost, would materially impair the Borrower’s ability to repay the
loan.



7.8    Collateral. All collateral required in this Agreement is owned by the grantor of the
security interest free of any title defects or any liens or interests of others, except those which
have been approved by the Bank in writing.



7.9    Permits, Franchises. The Borrower possesses all permits, memberships, franchises,
contracts and licenses required and all trademark rights, trade name rights, patent rights,
copyrights and fictitious name rights necessary to enable it to conduct the business in which it is
now engaged, except in cases in which failure to possess the same would not have a material adverse
effect on the Borrower’s business or financial condition.



7.10    Other Obligations. The Borrower is not in default on any material obligation for
borrowed money, any purchase money obligation or any other material lease, commitment, contract,
instrument or obligation, except as have been disclosed in writing to the Bank, and except for any
such default that would not materially impair the Borrower’s ability to repay the loan.



7.11    Tax Matters. To the best of the Borrower’s knowledge, all of the Borrower’s tax
returns and reports that are or were required to be filed have been filed, and all taxes,
assessments and other governmental charges have been paid in full, except those presently being or
to be contested by the Borrower in good faith in the ordinary course of business for which adequate
reserves have been provided



7.12    No Event of Default. There is no event which is, or with notice or lapse of time or
both would be, a default under this Agreement.



7.13    Insurance. The Borrower has obtained, and maintained in effect, the insurance
coverage required in the “Covenants” section of this Agreement.





	8.	 	COVENANTS




The Borrower agrees, so long as credit is available under this Agreement and until the Bank is
repaid in full:





	8.1	 	Use of Proceeds.
	 
	(a)	 	To use the proceeds of Facility No. 1 only for the Borrower’s business operations, unless
otherwise consented to by the Bank in writing.
	 
	(b)	 	The proceeds of the credit extended under this Loan Agreement may not be used directly or
indirectly to purchase or carry any “margin stock” as that term is defined in Regulation U of
the Board of Governors of the Federal Reserve System, or extend credit to or invest in other
parties for the purpose of purchasing or carrying any such “margin stock,” or to reduce or
retire any indebtedness incurred for such purpose.





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8.2    Financial Information. Upon the Bank’s request, to provide the following financial
information and statements in form and content acceptable to the Bank, and such additional
information as requested by the Bank from time to time. Copies of the Borrower’s Annual Reports on
Form 10-K and Quarterly Reports on Form 10-Q will satisfy the following requirements.





	(a)	 	Within one hundred twenty (120) days of the fiscal year end, the annual financial statements
of the Borrower. These financial statements must be audited (with an opinion satisfactory to
the Bank) by a Certified Public Accountant acceptable to the Bank. The statements shall be
prepared on a consolidated basis.
	 
	(b)	 	Within forty five (45) days of the period’s end, quarterly financial statements of the
Borrower, certified and dated by an authorized financial officer. These financial statements
may be company-prepared.
	 
	8.3	 	Additional Negative Covenants. Not to do any of the following, without the Bank’s
written consent:






	 	(a)	 	Liquidate or dissolve the Borrower’s business.
	 
	 	(c)	 	Voluntarily suspend the Borrower’s business for more than seven (7) days in any
thirty (30) day period.






	8.6	 	Notices to Bank. To promptly notify the Bank in writing of:
	 
	(a)	 	Any lawsuit against the Borrower (or any guarantor or, if the Borrower is comprised of the
trustees of a trust, any trustor), which, if lost, is expected by the Borrower, in its
reasonable judgment, to materially impair the Borrower’s ability to repay the loan.
	 
	(b)	 	Any substantial dispute between any governmental authority and the Borrower (or any guarantor
or, if the Borrower is comprised of the trustees of a trust, any trustor), which is expected
by the Borrower, in its reasonable judgment, to materially impair the Borrower’s ability to
repay the loan.
	 
	(c)	 	Any event of default under this Agreement, or any event which, with notice or lapse of time
or both, would constitute an event of default.
	 
	(d)	 	Any material adverse change in the Borrower’s (or any guarantor’s, or, if the Borrower is
comprised of the trustees of a trust, any trustor’s) financial condition or ability to repay
the credit.
	 
	(e)	 	Any change in the Borrower’s name, legal structure, place of business, or chief executive
office if the Borrower has more than one place of business.
	 
	8.7	 	Insurance.
	 
	(a)	 	General Business Insurance. To maintain insurance that is customary in the
Borrower’s business and adequate to protect against risks to the Borrower’s operations as to
amount, nature and carrier covering property damage (including loss of use and occupancy) to
any of the Borrower’s properties, business interruption, public liability including coverage
for contractual liability, product liability and workers’ compensation, and any other
insurance which is usual for the Borrower’s business. Each policy shall provide for at least
30 days prior notice to the Bank of any cancellation thereof.




8.8    Compliance with Laws. To comply with the laws (including any fictitious or trade name
statute), regulations, and orders of any government body with authority over the Borrower’s
business, except in cases in which failure to comply with such laws, regulations and orders would
not have a material adverse effect on the Borrower’s business or financial condition. The Bank
shall have no obligation to make any advance to the Borrower except in compliance with all
applicable laws and regulations and the Borrower shall fully cooperate with the Bank in complying
with all such applicable laws and regulations.





	8.9	 	Books and Records. To maintain adequate books and records.




8.10  Perfection of Liens. Upon the Bank’s request, to execute and deliver such documents,
agreements or instruments reasonably required for the Bank perfect and protect its security
interests and liens, and reimburse it for related costs it incurs to protect its security interests
and liens.




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	8.11	 	Cooperation. To take any action reasonably requested by the Bank to carry out the
intent of this Agreement.






	9.	 	DEFAULT AND REMEDIES




If any of the following events of default occurs, the Bank may do one or more of the following:
declare the Borrower in default, stop making any additional credit available to the Borrower, and
require the Borrower to repay its entire debt immediately and without prior notice. If an event
which, with notice or the passage of time, will constitute an event of default has occurred and is
continuing, the Bank has no obligation to make advances or extend additional credit under this
Agreement. In addition, if any event of default occurs, the Bank shall have all rights, powers and
remedies available under any instruments and agreements required by or executed in connection with
this Agreement, as well as all rights and remedies available at law or in equity. If an event of
default occurs under the paragraph entitled “Bankruptcy,” below, with respect to the Borrower,
then the entire debt outstanding under this Agreement will automatically be due immediately.



9.1    Failure to Pay. The Borrower fails to make a payment under this Agreement within five
(5) business days of the date due.



9.2    Other Bank Agreements. Any default occurs (subject to any applicable grace periods)
under any other agreement the Borrower (or any Obligor) has with the Bank. For purposes of this
Agreement, “Obligor” shall mean any guarantor, any party pledging collateral to the Bank, or, if
the Borrower is comprised of the trustees of a trust, any trustor.



9.3    Cross-default. Any default occurs (subject to any applicable grace periods) under any
agreement in connection with any credit the Borrower (or any Obligor) has obtained from anyone else
or which the Borrower (or any Obligor) has guaranteed that may materially affect the Borrower’s
ability to repay the loan or perform its obligations under this Agreement.



9.4    False Information. Any warranty, representation or statement made or furnished to the
Bank by the Borrower under this Agreement is false or misleading in any material respect, either
now or at the time made or furnished or becomes fake or misleading at any time thereafter.



9.5    Bankruptcy. The Borrower, any Obligor, or any general partner of the Borrower or of
any Obligor files a bankruptcy petition, a bankruptcy petition is filed against any of the
foregoing parties, or the Borrower, any Obligor, or any general partner of the Borrower or of any
Obligor makes a general assignment for the benefit of creditors.



9.6    Receivers. A receiver or similar official is appointed for a substantial portion of
the Borrower’s or any Obligor’s business, or the business is terminated, or, if any Obligor is
anything other than a natural person, such Obligor is liquidated or dissolved.



9.7    Lien Priority. The Bank fails to have an enforceable first lien (except for any prior
liens to which the Bank has consented in writing) on or security interest in any property given as
security for this Agreement (or any guaranty).



9.9    Material Adverse Change. A material adverse change occurs, or is reasonably likely to
occur, in the Borrower’s (or any Obligor’s) financial condition or ability to repay the credit.



9.10  Government Action. Any government authority takes action that the Bank reasonably
believes materially adversely affects the Borrower’s or any Obligor’s financial condition or
ability to repay.



9.11  Default under Related Documents. Any default occurs under any guaranty, subordination
agreement, security agreement, deed of trust, mortgage, or other document required by or delivered
in connection with this Agreement or any such document is no longer in effect, or any guarantor
purports to revoke or disavow the guaranty.



9.12  Other Breach Under Agreement. A default occurs under any other term or condition of
this Agreement not specifically referred to in this Article and such default is not cured within
thirty (30) days following written notice from the Bank of such default This includes any failure
or anticipated failure by the Borrower (or any other party named in the Covenants section) to
comply with the financial covenants set forth in this Agreement, whether such failure is evidenced
by financial statements delivered to the Bank or is otherwise known to the Borrower or the Bank.




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	10.	 	ENFORCING THIS AGREEMENT; MISCELLANEOUS




10.1  GAAP. Except as otherwise stated in this Agreement, all financial information
provided to the Bank and all financial covenants will be made under generally accepted accounting
principles, consistently applied.



10.2  California Law. This Agreement is governed by California law.



10.3  Successors and Assigns. This Agreement is binding on the Borrower’s and the Bank’s
successors and assignees. The Borrower agrees that it may not assign this Agreement without the
Bank’s prior consent. The Bank may sell participations in or assign this loan, and may exchange
information about the Borrower (including, without limitation, any information regarding any
hazardous substances) with actual or potential participants or assignees. If a participation is
sold or the loan is assigned, the purchaser will have the right of set-off against the Borrower.



10.4  Dispute Resolution Provision. This paragraph, including the subparagraphs below, is
referred to as the “Dispute Resolution Provision.” This Dispute Resolution Provision is a material
inducement for the parties entering into this agreement.





	(a)	 	This Dispute Resolution Provision concerns the resolution of any controversies or claims
between the parties, whether arising in contract, tort or by statute, including but not
limited to controversies or claims that arise out of or relate to: (i) this agreement
(including any renewals, extensions or modifications); or (ii) any document related to this
agreement (collectively a “Claim”). For the purposes of this Dispute Resolution Provision
only, the term “parties” shall include any parent corporation, subsidiary or affiliate of the
Bank involved in the servicing, management or administration of any obligation described or
evidenced by this agreement.
	 
	(b)	 	At the request of any party to this agreement, any Claim shall be resolved by binding
arbitration in accordance with the Federal Arbitration Act (Title 9, U.S. Code) (the “Act”).
The Act will apply even though this agreement provides that it is governed by the law of a
specified state.
	 
	(c)	 	Arbitration proceedings will be determined in accordance with the Act, the then-current rules
and procedures for the arbitration of financial services disputes of the American Arbitration
Association or any successor thereof (“AAA”), and the terms of this Dispute Resolution
Provision. In the event of any inconsistency, the terms of this Dispute Resolution Provision
shall control. If AAA is unwilling or unable to (i) serve as the provider of arbitration or
(ii) enforce any provision of this arbitration clause, the Bank may designate another
arbitration organization with similar procedures to serve as the provider of arbitration.
	 
	(d)	 	The arbitration shall be administered by AAA and conducted, unless otherwise required by law,
in Orange County, California. All Claims shall be determined by one arbitrator; however, if
Claims exceed Five Million Dollars ($5,000,000), upon the request of any party, the Claims
shall be decided by three arbitrators. All arbitration hearings shall commence within ninety
(90) days of the demand for arbitration and close within ninety (90) days of commencement and
the award of the arbitrator(s) shall be issued within thirty (30) days of the close of the
hearing. However, the arbitrator(s), upon a showing of good cause, may extend the
commencement of the hearing for up to an additional sixty (60) days. The arbitrator(s) shall
provide a concise written statement of reasons for the award. The arbitration award may be
submitted to any court having jurisdiction to be confirmed and have judgment entered and
enforced.
	 
	(e)	 	The arbitrator(s) will give effect to statutes of limitation in determining any Claim and may
dismiss the arbitration on the basis that the Claim is barred. For purposes of the application
of any statutes of limitation, the service on AAA under applicable AAA rules of a notice of
Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration
provision or whether a Claim is arbitrable shall be determined by the arbitrator(s), except as
set forth at subparagraph (j) of this Dispute Resolution Provision. The arbitrator(s) shall
have the power to award legal fees pursuant to the terms of this agreement.
	 
	(f)	 	The procedure described above will not apply if the Claim, at the time of the proposed
submission to arbitration, arises from or relates to an obligation to the Bank secured by real
property. In this case, all of the parties to this agreement must consent to submission of
the Claim to arbitration.
	 
	(g)	 	To the extent any Claims are not arbitrated, to the extent permitted by law the Claims shall
be resolved in court by a judge without a jury, except any Claims which are brought in
California state court shall be determined by judicial reference as described below.





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	(h)	 	Any Claim which is not arbitrated and which is brought in California state court will be
resolved by a general reference to a referee (or a panel of referees) as provided in
California Code of Civil Procedure Section 638. The referee (or presiding referee of the
panel) shall be a retired Judge or Justice. The referee (or panel of referees) shall be
selected by mutual written agreement of the parties. If the parties do not agree, the referee
shall be selected by the Presiding Judge of the Court (or his or her representative) as
provided in California Code of Civil Procedure Section 638 and the following related sections.
The referee shall determine all issues in accordance with existing California law and the
California rules of evidence and civil procedure. The referee shall be empowered to enter
equitable as well as legal relief, provide all temporary or provisional remedies, enter
equitable orders that will be binding on the parties and rule on any motion which would be
authorized in a trial, including without limitation motions for summary judgment or summary
adjudication . The award that results from the decision of the referee(s) will be entered as a
judgment in the court that appointed the referee, in accordance with the provisions of
California Code of Civil Procedure Sections 644(a) and 645. The parties reserve the right to
seek appellate review of any judgment or order, including but not limited to, orders
pertaining to class certification, to the same extent permitted in a court of law.
	 
	(i)	 	This Dispute Resolution Provision does not limit the right of any party to: (i) exercise
self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or non-judicial
foreclosure against any real or personal property collateral; (iii) exercise any judicial or
power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as but
not limited to, injunctive relief, writ of possession or appointment of a receiver, or
additional or supplementary remedies. The filing of a court action is not intended to
constitute a waiver of the right of any party, including the suing party, thereafter to
require submittal of the Claim to arbitration or judicial reference.
	 
	(j)	 	Any arbitration, judicial reference or trial by a judge of any Claim will take place on an
individual basis without resort to any form of class or representative action (the “Class
Action Waiver”). Regardless of anything else in this Dispute Resolution Provision, the
validity and effect of the Class Action Waiver may be determined only by a court or referee
and not by an arbitrator. The parties to this Agreement acknowledge that the Class Action
Waiver is material and essential to the arbitration of any disputes between the parties and is
nonseverable from the agreement to arbitrate Claims. If the Class Action Waiver is limited,
voided or found unenforceable, then the parties’ agreement to arbitrate shall be null and void
with respect to such proceeding, subject to the right to appeal the limitation or invalidation
of the Class Action Waiver. The Parties acknowledge and agree that under no circumstances
will a class action be arbitrated.
	 
	(k)	 	By agreeing to binding arbitration or judicial reference, the parties irrevocably and
voluntarily waive any right they may have to a trial by jury as permitted by law in respect of
any Claim. Furthermore, without intending in any way to limit this Dispute Resolution
Provision, to the extent any Claim is not arbitrated or submitted to judicial reference, the
parties irrevocably and voluntarily waive any right they may have to a trial by jury to the
extent permitted by law in respect of such Claim. This waiver of jury trial shall remain in
effect even if the Class Action Waiver is limited, voided or found unenforceable. WHETHER THE
CLAIM IS DECIDED BY ARBITRATION, BY JUDICIAL REFERENCE, OR BY TRIAL BY A JUDGE, THE PARTIES
AGREE AND UNDERSTAND THAT THE EFFECT OF THIS AGREEMENT IS THAT THEY ARE GIVING UP THE RIGHT TO
TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW.




10.5  Severability; Waivers. If any part of this Agreement is not enforceable, the rest of
the Agreement may be enforced. The Bank retains all rights, even if it makes a loan after default.
If the Bank waives a default, it may enforce a later default. Any consent or waiver under this
Agreement must be in writing.



10.6  Attorneys’ Fees. The Borrower shall reimburse the Bank for any reasonable costs and
attorneys’ fees incurred by the Bank in connection with the enforcement or preservation of any
rights or remedies under this Agreement and any other documents executed in connection with this
Agreement, and in connection with any amendment, waiver, “workout” or restructuring under this
Agreement. In the event of a lawsuit or arbitration proceeding, the prevailing party is entitled
to recover costs and reasonable attorneys’ fees incurred in connection with the lawsuit or
arbitration proceeding, as determined by the court or arbitrator. In the event that any case is
commenced by or against the Borrower under the Bankruptcy Code (Title 11, United States Code) or
any similar or successor statute, the Bank is entitled to recover costs and reasonable attorneys’
fees incurred by the Bank related to the preservation, protection, or enforcement of any rights of
the Bank in such a case. As used in this paragraph, “attorneys’ fees” includes the allocated costs
of the Bank’s in-house counsel.



10.7  One Agreement. This Agreement and any related security or other agreements required
by this Agreement, collectively:




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	(a)	 	represent the sum of the understandings and agreements between the Bank and the Borrower
concerning this credit;
	 
	(b)	 	replace any prior oral or written agreements between the Bank and the Borrower concerning
this credit; and
	 
	(c)	 	are intended by the Bank and the Borrower as the final, complete and exclusive statement of
the terms agreed to by them.




In the event of any conflict between this Agreement and any other agreements required by this
Agreement, this Agreement will prevail. Any reference in any related document to a “promissory
note” or a “note” executed by the Borrower and dated as of the date of this Agreement shall be
deemed to refer to this Agreement, as now in effect or as hereafter amended, renewed, or restated.



10.8  Notices. Unless otherwise provided in this Agreement or in another agreement between
the Bank and the Borrower, all notices required under this Agreement shall be personally delivered
or sent by first class mail, postage prepaid, or by overnight courier, to the addresses on the
signature page of this Agreement, or sent by facsimile to the fax numbers listed on the signature
page, or to such other addresses as the Bank and the Borrower may specify from time to time in
writing. Notices and other communications shall be effective (i) if mailed, upon the earlier of
receipt or five (5) days after deposit in the U.S. mail, first class, postage prepaid, (ii) if
telecopied, when transmitted, or (iii) if hand-delivered, by courier or otherwise (including
telegram, lettergram or mailgram), when delivered.



10.9  Headings. Article and paragraph headings are for reference only and shall not affect
the interpretation or meaning of any provisions of this Agreement.



10.10 Counterparts. This Agreement may be executed in as many counterparts as necessary or
convenient, and by the different parties on separate counterparts each of which, when so executed,
shall be deemed an original but all such counterparts shall constitute but one and the same
agreement.



10.11 Borrower Information; Reporting to Credit Bureaus. The Borrower authorizes the Bank
at any time to verify or check any information given by the Borrower to the Bank, check the
Borrower’s credit references, verify employment, and obtain credit reports. The Borrower agrees
that the Bank shall have the right at all times to disclose and report to credit reporting agencies
and credit rating agencies such information pertaining to the Borrower and/or all guarantors as is
consistent with the Bank’s policies and practices from time to time in effect.



10.12 Prior Agreement Superseded. This Agreement supersedes the Business Loan Agreement
and Promissory Note entered into as of September 25, 2002, and as amended between the Bank and the
Borrower, and any credit outstanding thereunder shall be deemed to be outstanding under this
Agreement.




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This Agreement is executed as of the date stated at the top of the first page.




	 	 	 	 	 	 	 	 	 
	Borrower:	 	 	 	Bank:
	 
	 	 	 	 	 	 	 	 
	Newport Corporation	 	 	 	Bank of America, N.A.
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Charles F. Cargile
	 	 	 	By:
	 	/s/ Erich Bollinger
	 

	 	 
	 	 	 	 	 	 
	 

	 	Charles F. Cargile, Senior Vice President and

Chief Financial Officer
	 	 	 	 	 	Erich Bollinger, SVP/CM
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Jeffrey B. Coyne	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	Jeffrey B. Coyne , Senior Vice President and

General Counsel	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Address where notices to Newport Corporation are to be	 	 	 	Address where notices to the Bank are to be sent:
	sent:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	1791 Deere Ave.

Irvine, CA 92606-4814	 	 	 	Pasadena — Attn: Notice Desk

CA9-702-05-71

101 S. Marengo Avenue, 5th Floor

Pasadena, CA 91101-2428





Affiliate Sharing Notice. Notice to Individual Borrowers, Guarantors and Pledgors
(“Obligors”): From time to time Bank of America, N.A. (the “Bank”) may share information about the
Obligor’s experience with Bank of America Corporation (or any successor company) and its
subsidiaries and affiliated companies (the “Affiliates”). The Bank may also share with the
Affiliates credit-related information contained in any applications, from credit reports and
information it may obtain about the Obligor from outside sources. If the Obligor is an individual,
the Obligor may instruct the Bank not to share this information with the Affiliates. The Obligor
can make this election by (1) calling the Bank at 1.888.341.5000, (2) visiting the Bank online at
www.bankofamerica.com, selecting “Privacy & Security,” and then selecting “Set Your Privacy
Preferences,” or (3) contacting the Obligor’s client manager or local banking center. To help the
Bank complete the Obligor’s request, the Obligor should include the Obligor’s name, address, phone
number, account number(s) and social security number. If the Obligor makes this election, certain
products or services may not be made available to the Obligor. This request will apply to
information from applications, consumer reports and other outside sources only, and may take six to
eight weeks to be fully effective. Through the normal course of doing business, including
servicing the Obligor’s accounts and better serving the Obligor’s financial needs, the Bank will
continue to share transaction and account experience information, as well as other general
information among the Affiliates. The Bank may change this policy from time to time. Visit our
website, www.bankofamerica.com, for the latest policy.



USA Patriot Act Notice. Federal law requires all financial institutions to obtain, verify
and record information that identifies each person who opens an account or obtains a loan. The
Bank will ask for the Borrower’s legal name, address, tax ID number or social security number and
other identifying information. The Bank may also ask for additional information or documentation
or take other actions reasonably necessary to verify the identity of the Borrower, guarantors or
other related persons.





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