Exhibit 10.1


 


MASTER TERMINATION AGREEMENT


 


MASTER TERMINATION AGREEMENT
(this “Agreement”), dated as of December 11, 2003, by and among SMBC
LEASING AND FINANCE, INC., as lessor (the “Lessor”) and as agent (the “Agent”),
SUMITOMO MITSUI BANKING CORPORATION (the “Collateral Agent”), UNION BANK
OF CALIFORNIA, N.A. (“Lender”) and COHERENT, INC. (“Lessee”).


 


W I T N E S S E T H


 


WHEREAS, the parties hereto
have heretofore entered into the agreements listed on Exhibit A hereto (all
such agreements, and all amendments, supplements and modifications to any and
all thereof, are collectively referred to herein as the “Documents”);
and


 


WHEREAS, the parties hereto
desire to terminate the Documents;


 


NOW, THEREFORE, in
consideration of the agreements set forth below, and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby agree as follows:


 


1.     Capitalized
Terms.   Capitalized terms used but
not defined herein shall have the respective meanings given to them in the
Master Lease and Security Agreement referred to in item 1 of Exhibit A.


 


2.     Termination
of the Documents:   Each of the
parties hereto agrees that (i) except with respect to those provisions
(including, without limitation, indemnification provisions) which expressly
survive the termination of the Documents, the Documents to which it is a party
and the security interests granted therein are hereby terminated, such
termination to be effective as of the date hereof, and the assignments contained
in the Documents are hereby reassigned, (ii) any requirement for notice
(whether written or oral) with respect to the termination of any of the
Documents is hereby waived by the respective parties to the Documents, (iii)
any other requirement or condition precedent to the termination of any of the
Documents is hereby waived or shall be deemed to have been satisfied, as the
case may be, and (iv) Lessee is hereby authorized to file and/or record with
the appropriate public officials and in the appropriate public offices such
instruments and documents as Lessee shall deem reasonably necessary to evidence
such termination.


 


3.     Further
Assurances.  Each of the parties
hereto agrees to execute such documents or instruments (including UCC-3
termination statements) and to take such other actions, in each case at the
Lessee’s expense, as Lessee may reasonably request in order to evidence the
termination of the Documents and the security interests granted in connection
herewith.


 


4.     Limitation
on Liability.  Notwithstanding
anything to the contrary contained in this Agreement, the recourse against the
Lessor or its officers, directors, shareholders, employees or agents for the
amounts payable by the Lessor under this Agreement shall be limited to the
Collateral and the Lessor’s interest in the Leased Assets.  Each party agrees that the Lessor shall have
no personal liability whatsoever; provided, however, that the
Lessor shall be liable in its individual capacity for any loss or damage
(excluding indirect, consequential or punitive damages) arising out of its own
willful misconduct, gross negligence or breach of this Agreement.


 


5.     Release.


 


(a)   Lessor,
Agent, Collateral Agent, Lender and Lessee are hereby fully and unconditionally
released and discharged from their respective obligations arising from or
connected with the Documents, except with respect to those obligations
(including, without limitation, indemnification provisions) which expressly
survive the termination of the Documents.


 


(b)   Except
as otherwise set forth in this Agreement, this Agreement shall fully and
finally settle all demands, charges, claims, accounts or causes of action of
any nature, including, without limitation, both known and unknown claims and
causes of action that arose out of or in connection with the Documents, and
constitutes a mutual release with respect to the Documents.  Each of the parties expressly waives the
provisions of California Civil Code Section 1542, which provides:


 


A general
release does not extend to claims which the creditor does not know or suspect
to exist in his favor at the time of executing the release, which if known by
him must have materially affected his settlement with the debtor.


 


6.     Counterparts;
Amendments.  This Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when executed and delivered,
shall be deemed an original and all of which counterparts, taken together,
shall constitute one and the same Agreement. 
This Agreement may not be amended,


 


 

















 


modified or waived except in writing signed by the party against whom
enforcement of such amendment, modification or waiver is sought.


 


7.     GOVERNING
LAW.   THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.


 


 


IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the date first above written.


 


	
  SMBC LEASING AND FINANCE, INC.,

  	
  UNION BANK OF
  CALIFORNIA, N.A.

  
	
  as Lessor and Agent

  	
   

  
	
   

  	
   

  
	
  By: 

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SUMITOMO MITSUI BANKING

  	
  COHERENT, INC.

  
	
  CORPORATION

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
									



 


2

















 


Exhibit A


 


 


Agreements


 


1.     Master Lease and Security
Agreement dated as of February 15, 2002 among Lessor and Lessee.


 


2.     Loan Agreement dated as of
February 15, 2002 among Lessor, the lenders party thereto, Agent and Collateral
Agent.


 


3.     Note dated February 15, 2002
made by Lessor in favor of Lender.


 


4.     Intercreditor and Security
Agreement dated as of February 15, 2002 among Lessee, Lessor, Agent and
Collateral Agent.


 


5.     Lessor Fee Letter dated
February 15, 2002 between Lessee and Lessor.


 


6.     Deed
of Trust, Security Agreement, Assignment of Leases and Rents and Fixture Filing
dated as of February 15, 2002 made by Lessee for the benefit of Lessor.


 


7.     Memorandum of Lease and
Security Agreement dated as of February 15, 2002 between Lessee and Lessor.


 


8.     Deed
of Trust, Security Agreement, Assignment of Leases and Rents and Fixture Filing
dated as of February 15, 2002 made by Lessor for the benefit of Collateral Agent.


 


9.     Collateral Assignment of
Lessor’s Interest dated as of February 15, 2002 made by Lessor in favor of
Collateral Agent.


 


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