Exhibit 10.34
AMENDMENT NO. 2 TO CREDIT AGREEMENT
This Agreement (this "Agreement") is made this 31st day of January,
1999 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, as amended by Amendment No. 1 to Credit Agreement,
dated June 25, 1997 (the Credit Agreement as so amended being hereinafter
referred to as the "Credit Agreement");
(B) The Borrower has requested that Credit Agreement be amended as
provided herein and the Banks are willing to amend the Credit Agreement as set
forth herein; and
(C) Any capitalized items 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. The definition of the term "Amortization Date"
contained in Section 1.1 of the Credit Agreement is hereby amended and restated
to provide in its entirety as follows:
"Amortization Date" means any date on which an installment of
principal is due with respect to a Term Loan or the Final Term
Loan.
SECTION 1.2 The definition of the term "Margin" contained in
Section 1.1 of the Credit Agreement hereby amended and restated to provide in
its entirety as follows:
"Margin" means with respect to any Loan and the Commitment Fee:
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RATIO OF CONSOLIDATED
SENIOR FUNDED DEBT TO
CONSOLIDATED CASH FLOW PRIME RATE COMMITMENT
PURSUANT TO SECTION 9.4: LIBOR LOANS: FEE LOANS
------------------------ ------------ --- -----
Greater than or equal to 1.50 .25 .25
3.50 : 1.00
Greater than or equal to
2.25 : 1.00 but less than
3.50 : 1.00 1.25 0 .25
Greater than or equal to
1.00 : 1.00 but less than
2.25 : 1.00 1.00 0 .25
Less than 1.00 : 1.00 .75 0 .25
The Margin will be set on the first Banking Day of the fiscal quarter of the
Borrower that commences after the date on which the financial statements
referenced in Section 7.8(a) or Section 7.8(b), as the case may be, are required
to be delivered to the Banks, and shall apply to all Prime Rate Loans and LIBOR
Loans outstanding on such date or to be made on or after such date until, but
not including, the next date on which the Margin is reset in accordance with the
provisions hereof; provided, however, that if any financial statements are not
received by the Banks within the time period relating to such financial
statements as provided in Section 7.8(a) or Section 7.8(b) hereof, as the case
may be, the Margin on all Prime Rate Loans and LIBOR Loans outstanding on such
date or to be made on or after the date the Margin should have been reset in
accordance with the foregoing provisions (i.e., assuming timely delivery of the
requisite financial statements), until the day which is the first Banking Day of
the fiscal quarter of the Borrower which commences following the receipt by the
Banks of such financial statements, will be set based on a ratio of equal to or
greater than 3.50:1.00; and further provided, however, that the Banks shall not
in any way be deemed to have waived any Event of Default or any of their
remedies hereunder (including, without limitation, remedies provided in Article
10 hereof) in connection with the provisions of the foregoing proviso.
SECTION 1.3. The definition of the term "Permitted Acquisition"
contained in Section 1.1 of the Credit Agreement is hereby amended and restated
to provide in its entirety as follows:
"Permitted Acquisition" means any Acquisition after January 31, 1999 by
the Borrower of any Person or of any division or line of business of any Person
or any assets of any Person (whether a Person, or division or line of business,
an "Eligible Business"), either by merger, consolidation, purchase of stock, or
purchase of assets of such Eligible Business provided that the Permitted
Acquisition Purchase Price of a Permitted Acquisition or aggregate Permitted
Acquisition Purchase Price of all such Permitted Acquisitions during the term of
this Agreement does not exceed $100,000,000 provided, however, that (i) such
Eligible Business is engaged generally in the same line of business as the
Borrower and its Subsidiaries; (ii) the Permitted Acquisition Purchase Price
excluding the value of capital stock issued
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by the Borrower or any of its Subsidiaries of all such Permitted Acquisitions
does not exceed $40,000,000 and (iii) no Default or Event of Default shall exist
immediately before or after giving effect to such Permitted Acquisition or
result from the consummation thereof, and (v) each of the following conditions
shall have been satisfied:
(a) on or before the date of Closing of such Acquisition, the
Banks shall have been provided satisfactory evidence that:
i. such Acquisition shall not be a "hostile"
acquisition or other "hostile" transaction (I.E., such
transaction shall have been approved by the Board of Directors
of the Eligible Business);
ii. such Eligible Business, if it is a Person, shall
be incorporated in or organized under the laws of the State of
the United States or, if such acquisition is of assets, such
assets shall be located in the United States;
iii. if such Acquisition is a stock acquisition, such
Acquisition shall be of greater than 50% of the issued and
outstanding capital stock of such Eligible Business, whether
by purchase or as a result of merger or consolidation
(provided that the Borrower shall be the surviving corporation
in any such merger or consolidation in which it is directly
involved), and in any event shall consist of shares of capital
stock with sufficient voting rights to entitle the Borrower to
elect a majority of the directors of such Eligible Business
and to control the outcome of any shareholder votes with
respect to the shareholders of such Eligible Business;
iv. any new Subsidiary created or acquired shall
become a Guarantor;
v. if such Acquisition is an asset acquisition, any
assets acquired shall be free of Liens, other than Permitted
Liens, and, if such Acquisition is a stock acquisition, the
assets of acquired company shall be free of Liens, other than
Permitted Liens;
vi. not less than seven Banking Days prior to the
closing of such Acquisition, 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 Acquisition, the
Borrower and its Subsidiaries shall be in compliance with the
financial covenants contained in Article 9 hereof. Such
statements shall include the Borrower's calculations
demonstrating such covenant compliance; and
(vii) the Banks have been provided such other
documents, instruments or financial reports as the Banks shall
have reasonably requested.
SECTION 1.4 The definition of the term "Revolving Credit Commitment"
contained in Section 1.1 of the Credit Agreement is hereby amended and restated
to provide in its entirety as follows:
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"Revolving Credit Commitment" means, with respect to each
Bank, the obligation of such Bank to extend credit to the
Borrower hereunder and, subject to the terms hereof, in the
following aggregate amounts as such amounts may be reduced in
accordance with the terms hereof
Fleet $24,000,000
Chase $16,000,000
SECTION 1.5. The definition of the term "Revolving Credit Note"
contained in Section 1.1 of the Credit Agreement is hereby amended and restated
to provide in its entirety as follows:
"Revolving Credit Note" means a promissory note of the
Borrower in the form of Exhibit A hereto, or any promissory
note issued in substitution or replacement therefor,
evidencing the Revolving Credit Loans made by a Bank
hereunder.
SECTION 1.6. The definition of the term "Revolving Credit Termination
Date" contained in Section 1.1 of the Credit Agreement is hereby amended by
deleting the reference to "July 31, 1999" therefrom and by substituting the
following in its place:
"December 31, 2001."
SECTION 1.7. Section 1.1 of the Credit Agreement is hereby further
amended by inserting the following definitions therein in alphabetical order:
"Consolidated Debt Service Coverage Ratio" means, at a
particular time, the ratio of (i) Consolidated EBIT to (ii)
the sum of (A) Consolidated Current Portion of Long Term Debt
PLUS (B) Consolidated Interest Expense.
"Consolidated EBIT" means, for any fiscal period, Consolidated
Net Income of the Borrower and its Subsidiaries before
provision for federal and state income taxes MINUS all
extraordinary gains; and PLUS (i) one time charges related to
write downs of intangible assets (including the value of
in-process research and development related to Permitted
Acquisitions) and (ii) Consolidated Interest Expense, all as
determined in accordance with GAAP.
"Consolidated Net Revenue" means, for a particular period, the
consolidated net revenue of the Borrower and its Subsidiaries
for such period determined in accordance with GAAP.
"Final Maturity Date" means the date on which all Loans
hereunder have been paid in full and the Revolving Credit
Commitment has terminated.
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"Final Term Loan" means the term loan made by the Banks to the
Borrower Pursuant to Section 2.9 hereof
"Final Term Loan Note" means the promissory note of the
Borrower substantially in the form of Exhibit 2.9 hereto
evidencing the Borrower's obligations with respect to the
Final Term Loan.
"Material Domestic Subsidiary" means a Domestic Subsidiary if
(i) such Domestic Subsidiary's net revenue constitutes 5% or
more of Consolidated Net Revenue OR (ii) such Domestic
Subsidiary's assets constitute 5% or more of Consolidated
Total Assets,
SECTION 1.8. The definition of the term "Loan" contained in Section 1.1
of the Credit Agreement is hereby amended and restated to provide in its
entirety as follows:
"Loan" means a Revolving Credit Loan, a Term Loan or the Final
Term Loan hereunder.
SECTION 1.9. The definition of the term "Notes" contained in Section
1.1 of the Credit Agreement is hereby amended and restated to provide in its
entirety as follows:
"Notes" means, collectively, the Revolving Credit Notes, the
Term Notes, if any, and the Final Term Loan Note, if any.
SECTION 1.10. Section 2.7(a) of the Credit Agreement is hereby amended
by deleting the reference therein to "$5,000,000" and substituting the following
in its place: "$10,000,000".
SECTION 1.11. Article 2 of the Credit Agreement is hereby amended by
inserting the following Section 2.9 at the end thereof:
Section 2.9 CONVERSION TO FINAL TERM LOAN.
(a) GENERALLY. At the Borrower's option, provided that no
Default or Event of Default then exists, the Borrower may elect, by
written notice to the Banks in accordance with Section 3.1 hereof, to
convert the outstanding principal balance of Revolving Credit Loans on
the Revolving Credit Termination Date to a four year term loan (the
"Final Term Loan"). The Final Term Loan initially may be a Prime Rate
Loan or LIBOR Loan or a combination thereof, as determined by the
Borrower and notified to the Banks in accordance with Section 3.1;
PROVIDED, however, that the minimum principal amount of any LIBOR Loan
shall be $1,250,000 and, if greater, integral multiples of $100,000.
(b) AMORTIZATION OF THE FINAL TERM LOAN. The principal amount
of the Final Term Loan shall be repaid in sixteen (16) consecutive and
substantially equal quarterly installments commencing on the first
Banking Day of the Borrower's first fiscal quarter commencing after the
Revolving Credit Termination Date and continuing on the
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first Banking Day of each fiscal quarter thereafter, with a 16th and
final installment of all unpaid principal and interest with respect
thereto being due and payable on the first Banking Day of the sixteenth
(16th) fiscal quarter following the Revolving Credit Termination Date.
(c) INTEREST PERIOD: CONVERSIONS.
(i) If any portion of the Final Term Loan is
designated as a LIBOR Loan, the Borrower shall select an
Interest Period of any duration in accordance with the
definition of Interest Period in Section 1.1 hereof, subject
to the limitation that no Interest Period may extend beyond an
Amortization Date, unless after giving effect thereto, the
aggregate principal amount of the Final Term Loan that is
designated as LIBOR Loans having Interest Periods which end
after such Amortization Date shall be less than or equal to
the principal amount of Final Term Loan to be outstanding
hereunder after such Amortization Date.
(ii) Upon the expiration of an Interest Period with
respect to any portion of Final Term Loan that is a LIBOR
Loan, such portion of Final Term Loan shall automatically be
continued as a Prime Rate Loan except to the extent that such
Loan shall be prepaid hereunder or unless the Borrower shall
have notified the Banks, as provided in Section 3.1 hereof of
its intent to select a new Interest Period with respect to
such portion of the Final Term Loan. Subject to the following
conditions, the Borrower shall have the right to convert any
portion of Final Term Loan to a different type of Loan (i.e.,
from a Prime Rate Loan to a LIBOR Loan and VICE VERSA):
(1) if less than all of the Final Term Loan at the time
outstanding shall be converted, the notice given by the
Borrower to the Banks shall specify the aggregate amount of
the Final Term Loan to be converted;
(2) no portion of the Final Term Loan may be converted to a LIBOR
Loan less than one month prior to the maturity date of the
Final Term Loan;
(3) a LIBOR Loan may be converted to a different type of Loan only
on the last day of an Interest Period; and
(4) no portion of the Final Term Loan may be converted to a LIBOR
Loan during the occurrence and continuance of an Event of
Default.
(d) THE FINAL TERM LOAN NOTE. The Final Term Loan made by each
Bank shall be evidenced by a single promissory note of the Borrower
substantially in the form of Exhibit 2.9 hereto (the "Final Term
Notes"), with appropriate insertions, payable to the order of each Bank
and representing the obligation of the Borrower to pay the unpaid
principal balance of such Final Term Loan with accrued and unpaid
interest thereon as
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provided herein. Each Bank is hereby authorized to record the date and
amount of each payment or prepayment of principal thereof, the date and
amount of each interest rate conversion pursuant to Section 2.9(c) and
the principal amount subject thereto and the interest rate applicable
thereto in such Bank's records and/or on a schedule annexed to and
constituting a part of its Final Term Loan Note, and, absent manifest
error, any such recordation shall constitute conclusive evidence of the
accuracy of the information so recorded; PROVIDED, however, that the
failure to make any such recordation shall not affect the Borrower's
obligations to repay outstanding amounts under the Final Term Loan.
Each Final Term Loan Note shall (a) be dated the Revolving Credit
Termination Date, (b) be stated to mature in 16 consecutive and
substantially equal quarterly installments, as provided above, and (c)
shall bear interest for a period from the date such Loan is made on the
unpaid principal amount thereof at the applicable rates per annum
specified herein.
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(e) USE OF PROCEEDS OF THE FINAL TERM LOAN. The Borrower shall
use the proceeds of the Final Term Loan to refinance Revolving Credit
Loans hereunder.
SECTION 1.12. Section 2.7(b) of the Credit Agreement is hereby amended
and restated to provide in its entirety as follows:
(b) AMORTIZATION OF TERM LOANS.
The principal amount of each Term Loan made by the Banks
hereunder shall be repaid in sixteen (16) substantially equal
quarterly installments commencing on the first Banking Day of
the calendar month that begins at least 165 days after the
date such Term Loan is made and continuing on the first
Banking Day of each third calendar month thereafter.
SECTION 1.13.
Section 3.1 of the Credit Agreement is hereby amended and restated to
provide in its entirety as follows:
Section 3.1. CERTAIN NOTICES. Except as otherwise provided in
this Agreement, notices by the Borrower to the Banks of each
borrowing pursuant to Sections 2.4 and 2.7(a), each prepayment
pursuant to Section 3.2, each reduction or termination of the
Revolving Credit Commitments pursuant to Section 2.8 and each
conversion of Loans pursuant to Sections 2.4, 2.7(c), 2.9(a)
and 2.9(c) shall be irrevocable and shall be effective on the
date of receipt only if received by all of the Banks, by not
later than 11:00 a.m., New York City time, and (a) in the case
of borrowings and prepayments of (i) Prime Rate Loans, if
given the date thereof and (ii) LIBOR Loans, if given three
(3) Banking Days prior thereto; (b) in the case of reductions
or terminations of the Revolving Credit Commitments, given
three (3) Banking Days prior thereto; (c) in the case of
conversions pursuant to Sections 2.4, 2.7(c) and 2.9(c), if
given three (3) Banking Days prior thereto and (d) in the case
of conversions pursuant to Section 2.9(a), if given three (3)
Banking Days prior to the Revolving Credit Termination Date.
Each such notification which relates to a borrowing,
continuation or conversion shall specify the amount of the
type of Revolving Credit Loan (i.e., Prime Rate Loan or LIBOR
Loan), the date of the proposed borrowing, whether such Loan
represents an
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additional borrowing, a continuation or a conversion, and in
the case of a LIBOR Loan, the Interest Period to be used in
the computation of interest with respect thereto. Each such
notice relating to a reduction or termination of the Revolving
Credit Commitments shall specify the amount of the Revolving
Credit Commitments to be reduced or terminated. In addition,
if such notification relates to a borrowing to fund a
Permitted Acquisition, the Borrower shall notify the Banks of
its election to have such Loan recorded as a Revolving Credit
Loan or a Term Loan as defined in Section 2.7(a) hereof.
Finally, if the proceeds of any Revolving Credit Loan are to
be used by the Borrower to finance any Capital Expenditure,
the notification with respect to such borrowing shall include
a statement to that effect indicating the amount of the
borrowing to be used for such purposes. Except for the amount
of the borrowing which shall be for each Bank its Commitment
Proportion of the total amount to be borrowed on such date,
each notification delivered to the Banks hereunder shall
contain the same terms for each Bank.
SECTION 1.14. Section 3.2(d) of the Credit Agreement is hereby amended
and restated to provide in its entirety as follows:
"(d) any partial prepayment of Term Loans or of Final Term
Loans hereunder shall be applied to the remaining installments
of principal due on such Loans in inverse order of maturity
and amounts prepaid on any such Loan may not be reborrowed."
SECTION 1.15. Section 3.4 of the Credit Agreement is hereby deleted and
the following is substituted in its place:
Section 3.4. INTENTIONALLY DELETED.
SECTION 1.16. Section 3.7 of the Credit Agreement is hereby amended by
deleting the phrase "one and one-half percent (1.50%) per annum on the face
amount of each Letter of Credit, subject to" therefrom and substituting the
following in its place: "one and one-half percent (1.50%) per annum on the face
amount of each Letter of Credit issued prior to January 31, 1999 and one percent
(1%) per annum on the face amount of each Letter of Credit issued on or after
January 31, 1999, subject, in each case, to".
SECTION 1.17. Article 5 of the Credit Agreement is hereby amended by
inserting the following Sections 5.4 and 5.5 to the end thereof:
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Section 5.4. SPECIAL CONDITIONS TO FINAL TERM LOAN.
The Obligations of the Banks to permit the Revolving Credit
Loans to be converted to the Final Term Loans pursuant to
Section 2.9 hereof shall be subject to the additional
conditions precedent that on the date of such conversion:
(a) Each Bank shall have received a duly executed and
completed Final Term Loan Note; and
(b) No Default or Event of Default shall then be existing
or shall result from such conversion.
Section 5.5. SPECIAL CONDITIONS. Notwithstanding any other
provision of this Agreement, the Banks shall not permit the
Aggregate Outstandings plus the aggregate principal balance of
all Term Loans to equal or exceed $15,000,000 unless the
Borrower shall have satisfied the following conditions
precedent:
(a) The Borrower shall have delivered to the Collateral
Agent, as agent for the Banks, Pledge Agreements
executed by the Borrower and each of the Guarantors
that owns capital stock of any Material Domestic
Subsidiary of the Borrower; and
(b) The Collateral Agent shall have been delivered
possession of all certificates evidencing capital
stock of each Material Domestic Subsidiary of the
Borrower, together with such stock powers executed in
blank as the Banks shall require.
SECTION 1.18. Section 7.10 of the Credit Agreement is hereby amended
and restated to provide in its entirety as follows:
Section 7.10. SUBSIDIARIES. Simultaneously with their
creation, cause all Domestic Subsidiaries to become Guarantors
hereunder and to deliver to the Banks Guarantees and, if the
Aggregate Outstandings plus the aggregate principal balance of
all Term Loans shall have at any time equaled or exceeded
$15,000,000, deliver Pledge Agreement relating to the capital
stock of each Domestic Subsidiary that is or that becomes a
Material Domestic Subsidiary to the Collateral Agent, together
with the Certificates evidencing the capital stock of each
such Material Domestic Subsidiary.
SECTION 1.19. Article 7 of the Credit Agreement is hereby amended by
inserting the following at the end thereof as a new Section 7.12:
Section 7.12. Y2K. (a) Any (i) reprogramming required to
permit the
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proper functioning, in and following the year 2000, of (A) a
Borrower's or any of its Subsidiaries' computer systems and
(B) equipment containing embedded microchips (including
systems and equipment supplied by others) in each case where
the failure to conduct such reprogramming would result in a
material adverse effect on the business, properties, assets,
prospects or condition, financial or otherwise, of the
Borrower or any of its Subsidiaries, and (ii) testing of all
such systems and equipment, as so reprogrammed, will be
completed by June 30, 1999. The cost to the Borrower and each
of its Subsidiaries of such reprogramming and testing and of
the reasonably foreseeable consequences of year 2000 to the
Borrower and each of its Subsidiaries (including, without
limitation, reprogramming errors) will not result in a Default
or Event of Default or have a material adverse effect on the
business, properties, assets, prospects or condition,
financial or otherwise, of the Borrower or any of its
Subsidiaries. Except for such of the reprogramming referred to
in the preceding sentence as may be necessary, the computer
and management information systems of the Borrower and each of
its Subsidiaries are and, with ordinary course upgrading and
maintenance, will continue to be, sufficient to permit the
Borrower and each of its Subsidiaries to conduct their
respective business without having a material adverse effect
on the business, properties, assets, prospects or condition,
financial or otherwise, of the Borrower or any of its
Subsidiaries.
(b) In addition, on or before May 15, 1999, the
Borrower shall complete an assessment of the ability of the
computer systems of its customers, suppliers and vendors and
of any third party with which the Borrowers' or any of its
Subsidiaries' systems interface to properly function following
the year 2000 and the Borrower shall notify the Banks promptly
upon learning of any circumstance with respect to such third
party's systems which could result in a material adverse
effect on the business, properties, prospects or condition,
financial or otherwise, of the Borrower or any of its
Subsidiaries. Furthermore, the Borrower shall notify the Banks
if it is unable to complete such assessment with respect to
any material customer, supplier or vendor.
SECTION 1.20. Section 8.1(e) of the Credit Agreement is hereby amended
by deleting the reference therein to "$3,000,000" and substituting the following
in its place: "$5,000,000.
SECTION 1.21. Section 8.4 of the Credit Agreement is hereby amended by
deleting the word "or" from immediately before clause (b) thereof and inserting
the following clause (c) at the end thereof:
"; (c) sales or other dispositions of assets of the Industrial
Measurement Division of the Borrower provided that the fair
market value of such assets sold or disposed of during the
term of this Agreement shall not exceed $15,000,000 in the
aggregate; or (d) transfers the assets of the
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Industrial Measurement Division of the Borrower or of any
Guarantor to a wholly owned subsidiary of the Borrower
provided that such Subsidiary is a Domestic Subsidiary and
provided further that simultaneously with such transfer such
Subsidiary shall become a Guarantor hereunder."
SECTION 1.22. Article 9 of the Credit Agreement is hereby amended and
restated to provide in its entirety as follows:
ARTICLE 9
FINANCIAL COVENANTS
So long as any of the Notes or other Obligations shall remain unpaid,
or any Bank shall have any Revolving Credit Commitment under this Agreement, the
Borrower shall:
Section 9.1 MINIMUM DEBT SERVICE COVERAGE RATIO. Maintain at
all times a Consolidated Debt Service Coverage Ratio of not less than
2.00:1.00.
Section 9.2 MINIMUM CONSOLIDATED QUICK RATIO. Maintain at all
times a Consolidated Quick Ratio of not less than 1.00:1.00.
Section 9.3 MAXIMUM CONSOLIDATED EFFECTIVE LEVERAGE. Maintain
at all times a ratio of (A) Consolidated Total Senior Liabilities to
(B) Consolidated Effective Net Worth of not more than 1.50:1.00.
Section 9.4 RATIO OF CONSOLIDATED SENIOR FUNDED DEBT TO
CONSOLIDATED CASH FLOW. Maintain at all times a ratio of Consolidated
Senior Funded Debt to Consolidated Cash Flow of not more than
5:00:1.00.
Section 9.5. PRE-TAX INCOME LOSS. (i) Maintain for any rolling
two quarters a minimum Consolidated Pre-Tax Income of not less than $0;
(ii) not
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suffer Consolidated Pre-Tax Loss of more than $4,000,000 in any fiscal
quarter; and (iii) maintain a minimum Consolidated Pre-Tax Income of
$2,000,000 for the fiscal quarter ending December 31, 1998.
ARTICLE 2. CONDITIONS PRECEDENT
SECTION 2.1
CONDITIONS TO EFFECTIVENESS. The amendments to the Credit Agreement
described in Article 1 above are subject to the following conditions precedent
and shall have no force or effect until the following conditions are satisfied:
(a) Fleet shall have received a duty executed substitute
revolving credit note substantially in the form of Exhibit A hereto and
Chase shall have received a duly executed substitute revolving credit
note substantially in the form of Exhibit B hereto (collectively, such
promissory notes are hereafter referred to as the Substituted Notes);
(b) each Bank shall have received a Guarantee duly executed by
Wyko Corporation and each other Domestic Subsidiary of the Borrower
that has not yet executed a Guarantee,
(c) each Bank shall have received a Guarantor's Affirmation,
in form and substance satisfactory to the Banks, duly executed by each
Guarantor that has executed a Guarantee prior to the date hereof;
(d) each Bank shall have received the following:
i. a certificate of the Secretary of the Borrower
attesting to all corporate action taken by such entity,
including resolutions of its Board of Directors authorizing
the execution, delivery and performance of this Amendment, of
the Substituted Notes 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;
ii. a certificate of the Secretary of the Borrower
certifying the names and true signatures of the officers of
such entity authorized to sign this Amendment and the
Substituted Notes and other documents to be signed by such
entity hereunder;
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iii. satisfactory evidence that the Borrower and each
Guarantor is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its
incorporation and each other jurisdiction where qualification
is necessary;
iv. a certificate of the Secretary of Wyko
Corporation and of each other Domestic Subsidiary of the
Borrower that has not yet executed a Guarantee, dated the date
hereof, attesting to all corporate action taken by such
entity, including resolutions of its Board of Directors
authorizing the execution, delivery and performance of the
Facility Documents and each other document to be delivered by
it pursuant to the Agreement, together with certified copies
of its certificate or articles of incorporation and By-Laws;
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;
v. a certificate of the Secretary of Wyko Corporation
and of each Domestic Subsidiary of the Borrower that has not
yet executed a Guarantee, dated the date hereof, certifying
the names and true signature of the officers of such entity
authorized to sign the Facility Documents and the other
documents to be delivered by such entity under this Agreement;
and
vi. an opinion of counsel for the Borrower and the
Guarantors as to such matters as the Banks deem necessary.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES.
The Borrower hereby represents and warrants to the Banks that:
SECTION 3.1. 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 3.2. No Default or Event of Default, as defined in the Credit
Agreement now exists.
SECTION 3.3. 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.
14
SECTION 3.4. Each of the Facility Documents, other than the Security
Agreements and the Pledge Agreements, continues to be in full force and effect
and secure all payment and other obligations of the Borrower under the Credit
Agreement.
ARTICLE 4. RELEASE OF COLLATERAL.
Simultaneously with the execution and delivery of this Amendment, the
Collateral Agent, on behalf of the Banks shall take all action necessary to
release their liens on and security interests in the Collateral and in the
capital stock of any Domestic Subsidiary of the Borrower. The Banks hereby agree
that, as of the date hereof, the Security Agreements, the Pledge Agreements and
the Patent and Trademark Security Agreement executed prior to the date of this
Amendment shall be terminated and the Banks shall have no further rights
thereunder.
ARTICLE 5. MISCELLANEOUS.
This Amendment shall be governed by and construed in accordance with
the laws of the State of New York.
Simultaneously with the execution and delivery of this Amendment the
Borrower shall pay an amendment fee of $30,000, which fee shall be paid pro rata
to the Banks in accordance with their respective commitment proportions.
IN WITNESS WHEREOF, each of the undersigned has executed or caused to
be duly executed this Amendment as of the date first above written.
VEECO INSTRUMENTS, INC.
By:
Name:
Title:
FLEET BANK, N.A.
By:
Name: Xxxxxxxxxxx Xxxxxxxxxx
Title: Vice President
15
THE CHASE MANHATTAN BANK
By:
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
16
EXHIBIT A
SUBSTITUTE
REVOLVING CREDIT NOTE
$24,000,000 January ___, 1999
Nassau County, New York
VEECO INSTRUMENTS, INC. a corporation organized under the laws of
Delaware (the "Borrower"), for value received, hereby promises to pay to the
order of FLEET BANK, N.A. (the "Bank") at the office of the Bank located at 000
Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, on or before December 31, 2001, the
principal sum of TWENTY-FOUR MILLION DOLLARS ($24,000,000), or less, the amount
loaned as Revolving Credit Loans by the Bank to the Borrower pursuant to the
Credit Agreement referred to below, in lawful money of the United States of
America and in immediately available funds, on the date(s) and in the manner
provided in said Credit Agreement. The Borrower also promises to pay interest on
the unpaid principal balance hereof, for the period such balance is outstanding,
at said office, in like money, at the rates of interest as provided in the
Credit Agreement described below, on the date(s) and in the manner provided in
said Credit Agreement.
The holder of this Revolving Credit Note shall record the date, type
and amount of each Revolving Credit Loan made by the Bank, and the date and
amount of each payment or prepayment of principal of or interest on any Loan,
and the principal amount subject thereto and the interest rate with respect
thereto on such computer, magnetic disk, tape or other such electronic data
storage and retrieval system deemed adequate for such purpose by the Bank, in
its sole and absolute discretion, which record shall constitute, absent manifest
error, conclusive evidence of the accuracy of the information so recorded, but
no failure so to record or any error in so recording shall effect the obligation
of the Borrower to repay any such Revolving Credit Loans, with interest thereon,
as provided in the Agreement or herein.
This is one of the Revolving Credit Notes referred to in that certain
Credit Agreement (as amended from time to time the "Credit Agreement") dated as
July 31, 1996 among the Borrower and the Banks named therein (including the
Bank) and evidences the Revolving Credit Loans made by the Bank thereunder. All
terms not defined herein shall have the meanings given to them in the Credit
Agreement.
This Note is an amendment and restatement of, and is being issued in
replacement of and in substitution for the Revolving Credit Note dated July 31,
1996 (the "Original Note"), in the original principal amount of $18,000,000 by
the Borrower to the order of the Bank; provided, however, that all interest
accrued and unpaid under the Original Note shall be deemed evidenced by this
Note and payable hereunder from and after the date of accrual thereof. The
execution and delivery of this Note shall not be construed to have constituted
repayment of any interest on the Original Note.
The Credit Agreement provides for the acceleration of the maturity of
principal upon the occurrence of certain Events of Default and for prepayments
on the terms and conditions specified therein. The Borrower waives presentment,
notice of dishonor, protest and any other notice or formality with respect to
this Note.
The terms of this Note may not be changed orally, but only by an
instrument duly executed by the
17
Borrower and the Bank.
This Note shall be governed by, and interpreted and construed in
accordance with the laws of the State of New York.
VEECO INSTRUMENTS, INC
By:_______________________
Name:
Title:
18
EXHIBIT B
SUBSTITUTE
REVOLVING CREDIT NOTE
$16,000,000 January ___, 1999
Nassau County, New York
VEECO INSTRUMENTS, INC., a corporation organized under the laws of
Delaware (the "Borrower"), for value received, hereby promises to pay to the
order of THE CHASE MANHATTAN BANK, (the "Bank") at the office of the Bank
located at 000 Xxxxx Xxxxxxx Xxxx 0xx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000, on or
before December 31, 2001, the principal sum of SIXTEEN MILLION DOLLARS
($16,000,000), or less, the amount loaned as Revolving Credit Loans by the Bank
to the Borrower pursuant to the Credit Agreement referred to below, in lawful
money of the United States of America and in immediately available funds on the
date(s) and in the manner provided in said Credit Agreement. The Borrower also
promises to pay interest on the unpaid principal balance hereof, for the period
such balance is outstanding, at said office, in like money, at the rates of
interest as provided in the Credit Agreement described below, on the date(s) and
in the manner provided in said Credit Agreement.
The holder of this Revolving Credit Note shall record the date, type
and amount of each Revolving Credit Loan made by the Bank, and the date and
amount of each payment or prepayment of principal of or interest on any Loan,
and the principal amount subject thereto and the interest rate with respect
thereto on such computer, magnetic disk, tape or other such electronic data
storage and retrieval system deemed adequate for such purpose by the Bank, in
its sole and absolute discretion, which record shall constitute, absent manifest
error, conclusive evidence of the accuracy of the information so recorded, but
no failure so to record or any error in so recording shall effect the obligation
of the Borrower to repay any such Revolving Credit Loans, with interest thereon,
as provided in the Agreement or herein.
This is one of the Revolving Credit Notes referred to in that certain
Credit Agreement (as amended from time to time the "Credit Agreement") dated as
of July 31, 1996 among the Borrower and the Banks named therein (including the
Bank) and evidences the Revolving Credit Loans made by the Bank thereunder. All
terms not defined herein shall have the meanings given to them in the Credit
Agreement.
This Note is an amendment and restatement of, and is being issued in
replacement of and in substitution for the Revolving Credit Note dated July 31,
1996 (the "Original Note"), in the original principal amount of $12,000,000 by
the Borrower to the order of the Bank; provided, however, that all interest
accrued and unpaid under the Original Note shall be deemed evidenced by this
Note and payable hereunder from and after the date of accrual thereof. The
execution and delivery of this Note shall not be construed to have constituted
repayment of any interest on the Original Note.
The Credit Agreement provides for the acceleration of the maturity of
principal upon the occurrence of certain Events of Default and for prepayments
on the terms and conditions specified therein. The Borrower waives presentment,
notice of dishonor, protest, and any other notice or formality with respect to
this Note.
The terms of this Note may not be changed orally, but only by an
instrument duly executed by the Borrower and the Bank.
19
This Note shall be governed by, and interpreted and construed in
accordance with the laws, of the State of New York.
VEECO INSTRUMENTS, INC.
By:_______________________
Name:
Title:
20
EXHIBIT C
FORM OF
FINAL TERM LOAN NOTE
U.S. $
For value received, VEECO INSTRUMENTS, INC., a Delaware corporation
(the "Borrower"), promises to pay to the order of ________________________ (the
"Bank") at the office of the Bank located at ___________________________ the sum
of _______________ Dollars ($ ) in sixteen consecutive quarterly principal
installments of $_________ commencing ____________, 19___ and on the first
Banking Day each ___________, ________, ____________ and ____________ thereafter
until paid in full, all in accordance with and pursuant to the Credit Agreement
referred to below. The Borrower also promises to pay interest on the aggregate
unpaid principal amount hereof on the dates and at the rates provided for in the
Credit Agreement. All payments of principal and interest shall be made in lawful
money of the United States by the transfer of immediately available funds.
This Note is issued pursuant to, and entitled to all the benefits of,
the Credit Agreement, dated as of July 31, 1996, between the Bank and the
Borrower (as the same may have been or may hereafter be amended from time to
time, the "Credit Agreement"). All terms not defined herein shall have the
meanings given to them in the Credit Agreement.
The Credit Agreement provides for acceleration of the maturity of
principal upon the occurrence of certain Events of Default and for prepayments
on the terms and conditions specified therein. The Borrower hereby waives
presentment, demand, protest or notice of any kind in connection with this Note.
The terms of this Note may not be changed orally, but only by an
instrument duly executed by the Borrower and the Bank.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PRINCIPLES.
VEECO INSTRUMENTS, INC.
By:
----------------------
Name:
Title: