EXHIBIT 10.2
AMENDMENT NO. 1 TO CREDIT AGREEMENT
This Agreement (this "Agreement") is made the 25th day of June, 1997 by
and among:
VEECO INSTRUMENTS, INC., a corporation organized under the laws of the
State of Delaware (the "Borrower"); and
FLEET BANK, N.A., a national banking association organized under the
laws of the United States ("Fleet") and THE CHASE MANHATTAN BANK, a New York
banking corporation ("Chase"; collectively with Fleet, the "Banks").
RECITALS:
(A) The Borrower and the Banks are parties to a Credit Agreement dated
as of July 31, 1996 (the "Credit Agreement");
(B) Pursuant to the terms of the Credit Agreement, the Borrower is
prohibited from making Acquisitions except in certain circumstances and the
Borrower desires to make an Acquisition not otherwise permitted pursuant to the
terms of the Credit Agreement;
(C) The Borrower has requested that Credit Agreement be amended to
permit the contemplated acquisition and in certain other respects as provided
herein and the Banks are willing to amend the Credit Agreement as set forth
herein;
(D) Any capitalized terms not defined herein shall have the meanings
ascribed thereto in the Credit Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE 1. AMENDMENTS TO REVOLVING CREDIT AGREEMENT.
This Agreement shall be deemed to be an amendment to the Credit
Agreement and shall not be construed in any way as a replacement or substitute
therefore. All of the terms and provisions of this Agreement are hereby
incorporated by reference into the Credit Agreement as if such terms and
provisions were set forth in full herein.
SECTION 1.1. Section 1.1 of the Credit Agreement is hereby amended by
inserting the following definitions therein in alphabetical order:
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"Merger Agreement" means that certain Agreement and Plan of Merger
dated April 28, 1997, by and among the Borrower, Veeco Acquisition Corp., a
wholly-owned subsidiary of the Borrower, and Wyko.
"Wyko" means Wyko Corporation, an Arizona corporation having its
principal place of business at 0000 Xxxx Xxxxx, Xxxxxx, Xxxxxxx, 00000.
"Wyko Acquisition" means the acquisition of Wyko by the Borrower in
accordance with the terms of the Merger Agreement.
SECTION 1.2 Section 8.1 of the Credit Agreement is hereby amended by
deleting the word "and" from the end of subsection (I) thereof; by deleting the
period (".") at the end of subsection (j) thereof and inserting the following in
its place: "; and"; and by inserting the following as a new subsection
(k)thereto:
(k) up to $2,669,000 of mortgage Indebtedness owed by Wyko at the time
the Wyko Acquisition is consummated.
SECTION 1.3 Section 8.2(I) of the Credit Agreement is hereby amended by
inserting the following phase at the end thereof: "or securing the Indebtedness
referred to in Section 8.1(k) hereof."
SECTION 1.4 Section 8.7 of the Credit Agreement is hereby amended by
inserting the following at the end thereof:
Notwithstanding the foregoing or any other provision of this Agreement,
the Borrower may consummate the Wyko Acquisition in accordance with the
terms of the Merger Agreement; PROVIDED, that simultaneously with the
consummation of the Wyko Acquisition, Wyko and each of its Subsidiaries
incorporated under the laws of any State of the United States shall
become Guarantors for purposes hereof, and shall execute and deliver to
the Banks Guarantees and shall execute and deliver to the Collateral
Agent, as agent for the Banks, security agreements, financing
statements, patent and trademark security agreements and any other
requisite recording or filing documents or instruments in accordance
with Section 7.10 hereof."
SECTION 1.5. Section 9.2 of the Credit Agreement is hereby amended to
provide in its entirety as follows:
Section 9.2. MINIMUM CONSOLIDATED QUICK RATIO. Maintain at all
times during each of the periods set forth below a Consolidated Quick
Ratio of not less than the ratio set forth opposite the applicable
period:
Period Ratio
------ -----
From the Closing Date
Through June 29, 1997 1.30:1.00
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June 30, 1997 and thereafter 1.20:1.00
ARTICLE 2. CONDITIONS PRECEDENT.
SECTION 2.1. CONDITIONS TO EFFECTIVENESS. The amendments to
the Credit Agreement described in Article 1 above, other than the amendment
described in Section 1.5 above which shall become effective upon execution and
delivery of this Amendment, are subject to the following conditions precedent
and shall have no force or effect until the following conditions are satisfied:
(a) each Bank shall have received each of the following,
in form and substance reasonably satisfactory to such
Bank and its counsel:
(i) a copy of the fully executed Merger
Agreement, together with all exhibits and
schedules thereto;
(ii) Guarantees, duly executed by Wyko and by
each of its Subsidiaries incorporated under
the laws of any state of the United States
(each such Subsidiary being a "Wyko Domestic
Subsidiary");
(iii) Security Agreements, duly executed by Wyko
and by each Wyko Domestic Subsidiary,
together with (A) fully completed and
executed Financing Statements on Form UCC-1,
in proper form for filing duly filed under
the Uniform Commercial Code in all
jurisdictions necessary or, in the
reasonable discretion of the Banks,
desirable to perfect the security interests
to be granted under such Security Agreements
and (B) UCC search results identifying all
of the financing statements on file with
respect to Wyko and each Wyko Domestic
Subsidiary in all jurisdictions referred to
under clause (A) hereof, indicating that no
party claims an interest in any of the
Collateral except the holders of Permitted
Liens;
(iv) Pledge Agreements, duly executed by the
borrower and by Wyko and any other entity
that owns shares of any Wyko Domestic
Subsidiary together with stock certificates
for Wyko and each Wyko Domestic Subsidiary,
stock powers duly executed in blank and such
other documents as the Banks shall require;
(v) A list of all intellectual property owned by
Wyko and the Wyko Domestic Subsidiaries and,
if the Banks so require, Patent and
Trademark Security Agreements duly executed
by Wyko and the Wyko Domestic Subsidiaries;
(vi) A certificate of the Secretary of Wyko and
each Wyko Domestic Subsidiary attesting to
all corporate action taken by such entity,
including resolutions of its Board of
Directors authorizing the
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execution, delivery and performance of the
Facility Documents and each other document
to be executed by such entity, together with
certified copies of the certificate or
articles of incorporation and the by-laws of
such entity; and such certificate shall
state that the resolutions and corporate
documents thereby certified have not been
amended, modified, revoked or rescinded as
of the date of such certificate;
(vii) A certificate of the Secretary of Wyko and
of each Wyko Domestic Subsidiary certifying
the names and true signatures of the
officers of such entity authorized to sign
the Facility Documents and other documents
to be signed by such entity hereunder;
(viii) Satisfactory evidence that Wyko and each
Wyko Domestic Subsidiary is duly organized,
validly existing and in good standing under
the laws of its jurisdiction of
incorporation and each other jurisdiction
where qualification is necessary; and
(ix) An opinion of counsel for the Borrower and
the Guarantors as to such matters as the
Banks deem necessary.
(b) Each Bank shall have been provided satisfactory
evidence that:
(i) on a PROFORMA basis, that the Wyko
Acquisition shall not (i) increase by 100%
or more the Consolidated Total Liabilities
of the Borrower and (ii) result in a
leverage ratio as measured by Consolidated
Total Liabilities of the Borrower to
Consolidated Total Assets of the Borrower
(the "Leverage Ratio") higher than 50%. For
purposes of this definition, (x)
Consolidated Total Liabilities shall include
all forms of Indebtedness reflected on a
consolidated balance sheet of the Borrower
and its Subsidiaries and claims, including
all Subordinated Debt and non-perpetual
preferred stock, which shall mean preferred
stock that has no maturity date and that
cannot be redeemed at the option of the
holder of the instrument and (y)
Consolidated Total Assets shall include
intangible assets;
(ii) the Wyko Acquisition shall not (A) result in
a leverage Ratio higher than 75% and (B)
cause 25% or more of the Consolidated Total
Liabilities of the Borrower and its
Subsidiaries after the Wyko Acquisition to
be derived from past or present buyouts,
Acquisitions or recapitalizations; and
(iii) the Banks shall have been provided PRO FORMA
closing date financial statements which
shall include consolidated balance sheets,
income statements and statements of cash
flows, which demonstrate that on a PRO FORMA
basis after consummation of the Wyko
Acquisition, the Borrower and its
Subsidiaries shall be in
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compliance with the financial covenants
contained in Article 9 hereof. Such
statements shall include the Borrower's
calculations demonstrating such covenant
compliance.
For purposes of clause (ii) (B) above, the Wyko Acquisition
shall be deemed to result in more than 25% of the Consolidated Total Liabilities
of the Borrower and its Subsidiaries to be derived from past or present buyouts,
Acquisitions or recapitalizations if the total liabilities of Wyko and its
Subsidiaries PLUS the then current balance of Indebtedness, excluding the trade
payables, incurred or created in connection with all prior Acquisitions equals
or exceeds 25% of the Consolidated Total Liabilities of the Borrower and its
Subsidiaries.
ARTICLE 3. WAIVERS.
SECTION 3.1 The Banks hereby waive compliance with the
provisions of Sections 8.3 and 8.7 of the Credit Agreement to the extent that
such provisions were violated by the formation of Veeco Acquisition Corp. or by
the execution, delivery and performance by the Borrower of the Merger Agreement.
SECTION 3.2. The waivers contained herein are waivers of the
specific covenants referred to herein only and are limited as provided herein
and shall not entitle the Borrower to any further waiver whatsoever.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES.
The Borrower hereby represents and warrants to the Banks that:
SECTION 4.1. Each and every one of the representations and
warranties set forth in the Credit Agreement is true in all material respects as
of the date hereof with respect to the Borrower and the Guarantors with the same
effect as though made on the date hereof, and is hereby incorporated herein in
full by reference as if fully restated herein in its entirety.
SECTION 4.2. No Default or Event of Default, as defined in the
Credit Agreement now exists.
SECTION 4.3. No representation, warranty or statement by the
borrower or the Guarantors contained herein or in any other document to be
furnished by the Borrower or the Guarantors in connection herewith contains, or
at the time of delivery shall contain, any untrue statement of material fact, or
omits or at the time of delivery shall omit to state a material fact necessary
to make such representation, warranty or statement not misleading.
SECTION 4.4. Each of the Facility Documents continues to be in
full force and effect and secure all payment and other obligations of the
Borrower under the Credit Agreement. Neither the Borrower nor any of the
Guarantors has located assets in any new locations since the execution and
delivery of the Security Agreements.
ARTICLE 5. MISCELLANEOUS.
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SECTION 5.1. This Amendment shall be governed by and construed
in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, each of the undersigned has executed or
caused to be duly executed this Waiver as of the date first above written.
VEECO INSTRUMENTS, INC.
By: __________________________________
Name:
Title:
FLEET BANK, N.A.
By: ___________________________________
Name: Xxxxxxxxxxx Xxxxxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK
By: ____________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
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