Exhibit 10.3
THIRD AMENDMENT AND CONSENT TO
CREDIT AGREEMENT
THIRD AMENDMENT AND
CONSENT, dated as of
May 7, 2009, and effective as of March 27, 2009, (this
“Amendment and Consent”) to the Credit Agreement dated
as of August 20, 2007 (as amended by the First Amendment to
Credit Agreement, dated as of February 25, 2008 and the Second
Amendment to Credit Agreement, dated as of February 27, 2009,
the “Credit Agreement”) by and among VEECO
INSTRUMENTS INC., a Delaware corporation (the
“Company”), the Lenders party thereto and HSBC BANK
USA, NATIONAL ASSOCIATION, a national banking association, as
Administrative Agent for the Lenders.
WHEREAS, the Company has requested that the Lenders amend
certain provisions of the Credit Agreement and consent to the
acquisition by Veeco Process Equipment Inc. of the stock of Fluens
Corporation, and the Lenders have agreed to amend such provisions
of the Credit Agreement and grant such consent, subject to the
terms and conditions set forth herein;
NOW, THEREFORE,
in consideration of the premises and
of the mutual agreements herein contained, the parties hereto agree
as follows:
1.
Amendments.
a.
The definition of the term “Loan Documents” in
Section 1.01 of the Credit Agreement is hereby amended and
restated in its entirety to provide as follows:
“Loan Documents” shall
mean, collectively, this Agreement, the Notes, the Guaranties, the
Security Agreement, the Hedging Agreements (but only to the extent
that such Hedging Agreements are between the Company and a Lender
and relate to the Company’s hedging of interest rate exposure
under this Agreement), the Pledge Agreements, the Account Pledge
Agreement and each other agreement executed in connection with the
transactions contemplated hereby or thereby, as each of the same
may hereafter be amended, restated, supplemented or otherwise
modified from time to time.
b.
Section 1.01 of the Credit Agreement is hereby amended to add
the following definition in its appropriate alphabetical
order:
“Account Pledge
Agreement” shall mean the Account Pledge Agreement, dated as
of May 7, 2009, between the Company and the Administrative
Agent, as the same may hereafter be further amended, restated,
supplemented or otherwise modified from time to time.
c.
Section 5.02 of the Credit Agreement is hereby amended to add
the following new subsection “(d)” immediately
following subsection “(c)” thereof:
“(d)
Cash Collateral. The Company shall have
deposited with the Administrative Agent, Cash Collateral in an
amount equal to the Aggregate Outstandings (after giving effect to
the Loan requested or the requested issuance, amendment, renewal or
extension of a Letter of Credit).”
d.
Article VI of the Credit Agreement is hereby amended to add a
new Section 6.16 at the end thereof as follows:
1
“ SECTION 6.16.
Cash Collateral . The Company shall, at all times
required by the Lenders, maintain with, and pledge to, the
Administrative Agent for the ratable benefit of the Lenders, Cash
Collateral in an amount equal to or greater than the Aggregate
Outstandings, pursuant to the Account Pledge
Agreement.”
e.
Section 7.13(e) of the Credit Agreement is hereby amended
and restated in its entirety to provide as follows:
“(e)
Consolidated EBITA . Permit Consolidated EBITA to
exceed (i) ($11,692,000), for the fiscal quarter ending
March 31, 2009, (ii) ($19,807,000), on a cumulative basis
for the two fiscal quarters ending June 30, 2009,
(iii) ($21,899,000), on a cumulative basis for the three
fiscal quarters ending September 30, 2009 or
(iv) ($14,710,000), for the fiscal year ending
December 31, 2009.”
2.
Consent
.
The Company acknowledges and agrees
that a Compliance Period is not currently in effect and, as a
result thereof, the Required Lenders must consent to the
acquisition by Veeco Process Equipment Inc. of the stock of Fluens
Corporation, a Massachusetts corporation as a Permitted Acquisition
(the “Specified Acquisition”). In accordance with
Section 7.06(d) of the Credit Agreement, the Required
Lenders hereby consent to the consummation of the Specified
Acquisition as a Permitted Acquisition, provided that (a) no
Default or Event of Default has occurred and is then continuing at
the time of, or will occur after giving effect to, such Acquisition
and (b) such Acquisition otherwise satisfies the requirements
of a “Permi
