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EXHIBIT 10.20
MKS INSTRUMENTS, INC.
SECOND AMENDMENT
TO FIRST AMENDED AND RESTATED LOAN AGREEMENT
This Second Amendment (the "Amendment") dated as of January 1, 2001
concerns the First Amended and Restated Loan Agreement dated as of January 1,
2000 (as amended, the "Loan Agreement"), among MKS Instruments, Inc. (the
"Borrower"), Fleet National Bank (f/k/a BankBoston, N.A., "Fleet"), The Chase
Manhattan Bank ("Chase"; hereinafter Fleet and Chase may be referred to
individually as a "Lender" or collectively as the "Lenders"), and Fleet in its
capacity as agent for the Lenders (in such capacity, together with any successor
agent, the "Agent"). Capitalized terms used herein but not otherwise defined
shall have the meanings assigned to them in the Loan Agreement.
WHEREAS, the Borrower's ability to borrow under the Loan Agreement
terminated as of December 31, 2000; and
WHEREAS, the Lenders are willing, on the terms, subject to the conditions
and to the extent set forth below, to extend the Borrower's ability to borrow
under the Loan Agreement;
NOW, THEREFORE, the Lenders and the Borrower agree as follows:
Section 1. AMENDMENT OF THE LOAN AGREEMENT.
(A) The definitions of the following terms set forth in Section 1.1 of the
Loan Agreement are hereby amended and restated as follows:
"REVOLVER TERMINATION DATE" shall mean April 30, 2001.
"TOTAL REVOLVING CREDIT COMMITMENT" shall mean a principal amount equal to
$40,000,000.
(B) Section 3.1.1 of the Loan Agreement is hereby amended by deleting the
reference therein to "$30,000,000" and replacing it with "the Total Revolving
Credit Commitment".
(C) Section 7.1(b) of the Loan Agreement is hereby amended and restated as
follows:
(b) MERGERS, ETC. Neither the Borrower nor any Subsidiary will
consolidate with or merge into any other Person or permit any other Person
to consolidate with or merge into it, or acquire all or substantially all
of the capital stock or assets of any Person, or sell, assign, lease or
otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets to any Person, except
that
(1) a Subsidiary may consolidate with or merge into the Borrower
or another Subsidiary; and
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(2) the Borrower or any of its Subsidiaries may acquire all or
substantially all of the capital stock or assets of any Person or
consolidate or merge with any Person provided (i) such Person is
engaged in a line of business substantially similar to one or more of
Borrower's existing lines of business, (ii) the aggregate purchase
price liability incurred in any calendar year, including all
contingent liabilities, when aggregated with all such acquisitions and
any Investments permitted under Section 7.4(2) in any calendar year
shall not exceed 25% of Consolidated Tangible Net Worth as of the end
of the most recent fiscal quarter or, if 80% or more of the purchase
price is paid in capital stock of the Borrower, 50% of Consolidated
Tangible Net Worth as of the end of the most recent fiscal quarter and
(iii) based on a pro forma calculation of the ratios set forth in
Section 7.7 as of the date such acquisition is closed, assuming
consolidation of the acquired business with the Borrower for the four
full fiscal quarters ended immediately preceding such closing and pro
forma debt and debt service payments based on scheduled principal
payments, including acquisition borrowings, if any, and pro forma
interest on total debt, at then prevailing borrowing rates, Borrower
is in compliance with the financial covenants set forth in Section
7.7.
(D) Exhibit A of the Loan Agreement is hereby amended and restated in the
form attached hereto.
Section 2. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and warrants as follows:
(a) The execution and delivery of this Amendment and the performance
of this Amendment, the Loan Agreement as amended hereby and each of the other
Loan Documents, and the transactions contemplated hereby and thereby, have been
authorized by all necessary corporate actions of the Borrower. This Amendment,
the Loan Agreement as amended hereby and each of the other Loan Documents
constitute the legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms.
(b) The Borrower has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Amendment, the Loan
Agreement as amended hereby and each of the other Loan Documents. Neither the
authorization, execution, delivery or performance by the Borrower of this
Amendment nor the performance of the Loan Agreement as amended hereby or any
other Loan Document nor the performance of the transactions contemplated hereby
or thereby violates or will violate any provision of the corporate charter or
by-laws of the Borrower, or does or will, with the passage of time or the giving
of notice or both, result in a breach of or a default under, or require any
consent under or result in the creation of any lien, charge or encumbrance upon
any property or assets of the Borrower pursuant to, any material instrument,
agreement or other document to which the Borrower is a party or by which the
Borrower or any of its properties may be bound or affected.
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(c) The execution and delivery by the Borrower of this Amendment and
the performance by the Borrower of the Loan Agreement as amended hereby and the
Loan Documents do not and will not violate any provision of law or regulation
applicable to the Borrower, or any writ, order or decree of any court or
governmental or regulatory authority or agency applicable to the Borrower.
Section 3. LOAN DOCUMENTS. This Amendment shall be a Loan Document for all
purposes.
Section 4. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Amendment
is conditioned on the following:
(a) The Borrower and the Lenders shall each have executed and
delivered a counterpart of this Amendment;
(b) The representations and warranties contained in Article IV of the
Loan Agreement shall be true and correct in all material respects as of the date
hereof as though made on and as of the date hereof;
(c) No Default or Event of Default under the Loan Agreement shall have
occurred and be continuing;
(d) The conditions set forth in Section 5.1(b) - (e) of the Loan
Agreement shall have been met as of the date hereof, provided that for purposes
thereof and Section 4.5 of the Loan Agreement, the "Balance Sheet Date" shall
mean September 30, 2000 and the financial statements referred to therein shall
mean the unaudited statements for the period ended September 30, 2000, that have
been furnished to the Lender.
(e) The Borrower shall have paid Fleet and Chase commitment fees of
$37,500 and $25,000, respectively.
Section 5. MISCELLANEOUS.
(a) On and after the date hereof, each reference in the Loan Agreement
to "this Agreement" or words of like import shall mean and be deemed to be a
reference to the Loan Agreement as amended hereby.
(b) Except as amended and modified hereby, the Loan Agreement is in
all respects ratified and confirmed as of the date hereof, and the terms,
covenants and agreements therein shall remain in full force and effect.
(c) This Amendment and the modifications to the Loan Agreement set
forth herein shall be deemed to be a document executed under seal and shall be
governed by and construed in accordance with the laws of The Commonwealth of
Massachusetts.
(d) This Amendment may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same document.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the date and the year first above written.
MKS INSTRUMENTS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Treasurer
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FLEET NATIONAL BANK
By: /s/ Xxxxxx X. Head, Jr.
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Title: Director
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THE CHASE MANHATTAN BANK
By: /s/ A. Xxxx Xxxxxx
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Title: Vice President
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EXHIBIT A
Revolving Credit Applicable Commitment
Lender Commitment Percentage
------ ---------------- ---------------------
Fleet National Bank $24,000,000 60%
The Chase $16,000,000 40%
Manhattan Bank
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REVOLVING CREDIT NOTE
$24,000,000 Boston, Massachusetts
January 1, 2001
FOR VALUE RECEIVED, MKS INSTRUMENTS, INC., a Massachusetts corporation
having its principal place of business located in Andover, Massachusetts (the
"Borrower"), hereby promises to pay to the order of FLEET NATIONAL BANK (the
"Lender"), in its individual capacity, at the office of FLEET NATIONAL BANK, as
agent for the Lender (the "Agent"), located at 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx (or at such other place or places as the Agent may designate in
writing) at the times set forth in the First Amended and Restated Loan Agreement
dated as of January 1, 2000, as amended now or hereafter, among the Borrower,
the financial institutions party thereto (collectively, the "Lenders") and the
Agent (the "Agreement" -- all capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Agreement), in lawful money
of the United States of America, in immediately available funds, the principal
amount of TWENTY-FOUR MILLION DOLLARS ($24,000,000) or, if less than such
principal amount, the aggregate unpaid principal amount of all Advances made by
the Lender to the Borrower pursuant to the Agreement, on the Revolver
Termination Date or such earlier date as may be required pursuant to the terms
of the Agreement, and to pay interest from the date hereof on the unpaid
principal amount hereof, in like money, at said office, on the dates and at the
rates provided in the Agreement. All or any portion of the principal amount of
Advances may be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of the
Agreement or under the terms of the other Loan Documents executed in connection
with the Agreement, the then remaining principal amount and accrued but unpaid
interest shall bear interest, which shall be payable on demand, at the rate per
annum set forth in Section 2.4.2 of the Agreement. Further, in the event of such
acceleration, this Revolving Credit Note shall become immediately due and
payable, without presentation, demand, protest or notice of any kind, all of
which are hereby waived by the Borrower.
In the event this Revolving Credit Note is not paid when due at any stated
or accelerated maturity, the Borrower agrees to pay, in addition to the
principal and interest, all costs of collection, including reasonable attorneys'
fees, and interest thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
This Revolving Credit Note is one of the Revolving Credit Notes referred to
in the Agreement and is issued pursuant to and entitled to the benefits of the
Agreement to which reference is hereby made for a more complete statement of the
terms and conditions upon which the Advances evidenced hereby were or are made
and are to be repaid. This Revolving Credit Note is subject to certain
restrictions on transfer or assignment as provided in the Agreement. This
Revolving Credit Note is issued in replacement of the Revolving Credit Note
dated January 1, 2000 (the "2000 Note") issued to the Lender in the principal
amount of $18,000,000 in connection with the amendment of the First Amended and
Restated Loan Agreement dated as of
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January 1, 2000, and the Borrower remains liable for any interest or fees under
the 2000 Note unpaid as of the date hereof.
No delay or omission on the part of the Lender in exercising any right
hereunder shall operate as a waiver of such right or of any other right of the
Lender, nor shall any delay, omission or waiver on any one occasion be deemed a
bar to or waiver of the same or any other right on any future occasion. Every
maker, endorser and guarantor of this Revolving Credit Note or the obligations
represented hereby waives presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance,
default or enforcement of this Revolving Credit Note, assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
IN WITNESS WHEREOF, the Borrower has caused this Revolving Credit Note to
be made, executed and delivered by its duly authorized representative under seal
as of the date and year first above written.
MKS INSTRUMENTS, INC.
WITNESS:
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Treasurer
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REVOLVING CREDIT NOTE
$16,000,000 Boston, Massachusetts
January 1, 2001
FOR VALUE RECEIVED, MKS INSTRUMENTS, INC., a Massachusetts corporation
having its principal place of business located in Andover, Massachusetts (the
"Borrower"), hereby promises to pay to the order of THE CHASE MANHATTAN BANK
(the "Lender"), in its individual capacity, at the office of FLEET NATIONAL
BANK, as agent for the Lender (the "Agent"), located at 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx (or at such other place or places as the Agent may
designate in writing) at the times set forth in the First Amended and Restated
Loan Agreement dated as of January 1, 2000, as amended now or hereafter, among
the Borrower, the financial institutions party thereto (collectively, the
"Lenders") and the Agent (the "Agreement"-- all capitalized terms not otherwise
defined herein shall have the respective meanings set forth in the Agreement),
in lawful money of the United States of America, in immediately available funds,
the principal amount of SIXTEEN MILLION DOLLARS ($16,000,000) or, if less than
such principal amount, the aggregate unpaid principal amount of all Advances
made by the Lender to the Borrower pursuant to the Agreement, on the Revolver
Termination Date or such earlier date as may be required pursuant to the terms
of the Agreement, and to pay interest from the date hereof on the unpaid
principal amount hereof, in like money, at said office, on the dates and at the
rates provided in the Agreement. All or any portion of the principal amount of
Advances may be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of the
Agreement or under the terms of the other Loan Documents executed in connection
with the Agreement, the then remaining principal amount and accrued but unpaid
interest shall bear interest, which shall be payable on demand, at the rate per
annum set forth in Section 2.4.2 of the Agreement. Further, in the event of such
acceleration, this Revolving Credit Note shall become immediately due and
payable, without presentation, demand, protest or notice of any kind, all of
which are hereby waived by the Borrower.
In the event this Revolving Credit Note is not paid when due at any stated
or accelerated maturity, the Borrower agrees to pay, in addition to the
principal and interest, all costs of collection, including reasonable attorneys'
fees, and interest thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
This Revolving Credit Note is one of the Revolving Credit Notes referred to
in the Agreement and is issued pursuant to and entitled to the benefits of the
Agreement to which reference is hereby made for a more complete statement of the
terms and conditions upon which the Advances evidenced hereby were or are made
and are to be repaid. This Revolving Credit Note is subject to certain
restrictions on transfer or assignment as provided in the Agreement. This
Revolving Credit Note is issued in replacement of the Revolving Credit Note
dated January 1, 2000 (the "2000 Note") issued to the Lender in the principal
amount of $12,000,000 in connection with the amendment and restatement of the
First Amended and Restated Loan
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Agreement dated as of January 1, 2000, and the Borrower remains liable for any
interest or fees under the 2000 Note unpaid as of the date hereof.
No delay or omission on the part of the Lender in exercising any right
hereunder shall operate as a waiver of such right or of any other right of the
Lender, nor shall any delay, omission or waiver on any one occasion be deemed a
bar to or waiver of the same or any other right on any future occasion. Every
maker, endorser and guarantor of this Revolving Credit Note or the obligations
represented hereby waives presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance,
default or enforcement of this Revolving Credit Note, assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
IN WITNESS WHEREOF, the Borrower has caused this Revolving Credit Note to
be made, executed and delivered by its duly authorized representative under seal
as of the date and year first above written.
MKS INSTRUMENTS, INC.
WITNESS:
Xxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Treasurer
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