AMENDMENT NUMBER ONE
TO
REVOLVING CREDIT AGREEMENT
THIS AMENDMENT NUMBER ONE TO REVOLVING CREDIT AGREEMENT (this "Amendment")
is made as of this 31st day of August, 1997 by and between FEI COMPANY, an
Oregon corporation ("Borrower") and KEYBANK NATIONAL ASSOCIATION, a national
banking association ("Lender").
RECITALS
A. Borrower and Lender are parties to that certain Revolving Credit
Agreement dated as of July 1, 1997 (the "Credit Agreement").
B. Borrower and Lender now wish to amend the Credit Agreement to extend the
maturity date for the repayment of certain loans under the Credit Agreement and
to include a standby letter of credit facility, all subject to the terms and
conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
AGREEMENT
1. Definitions. Capitalized terms not otherwise defined in this Amendment
shall have the meanings given in the Credit Agreement.
2. Amendments to Credit Agreement. The Credit Agreement is hereby amended
as follows:
2.1 Amendment to Definitions.
(a) Amendment to Definition of "Loan Documents." The definition
of "Loan Documents" in Section 1.1 of the Credit Agreement is hereby deleted and
the following definition substituted in its stead:
"Loan Documents" means each of this
Agreement, the Note, the Security Agreement, the
Stock Pledge Agreement, the Guaranty, the Letters
of Credit, the Reimbursement Agreements, as any of
them shall be from time to time modified, amended
or supplemented.
(b) Amendment to Definition of "Maturity Date." The definition of
"Maturity Date" in Section 1.1 of the Credit Agreement is hereby deleted and the
following definition substituted in its stead:
"Maturity Date" means July 31, 1999.
(c) Addition of Definition of "Letter of Credit." The definition
of "Letter of Credit" is hereby added to Section 1.1 of the Credit Agreement to
read in its entirety as follows:
"Letter of Credit" means a standby letter of
credit issued by Lender pursuant to the terms of
Section 2.11 hereof for the account of Borrower.
(d) Addition of Definition of "Letter of Credit Request." The
definition of "Letter of Credit Request" is hereby added to Section 1.1 of the
Credit Agreement to read in its entirety as follows:
"Letter of Credit Request" has the meaning
given in Section 2.11(b)(i).
(e) Addition of Definition of "Letter of Credit Usage." The
definition of "Letter of Credit Usage" is hereby added to Section 1.1 of the
Credit Agreement to read in its entirety as follows:
"Letter of Credit Usage" means, as of any
date of determination, the aggregate of the
undrawn portions of all outstanding Letters of
Credit.
(f) Addition of Definition of "Reimbursement Agreement." The
definition of "Reimbursement Agreement" is hereby added to Section 1.1 of the
Credit Agreement to read in its entirety as follows:
"Reimbursement Agreement" has the meaning
given in Section 2.11(b)(iii).
(g) Addition of Definition of "Total Revolving Utilization." The
definition of "Total Revolving Utilization" is hereby added to the Credit
Agreement to read in its entirety as follows:
"Total Revolving Utilization" means, as of
the date of determination, the sum of (i) the
aggregate principal amount of all Advances; plus,
(ii) the Letter of Credit Usage.
2.2 Amendment to Section 2.1. The first sentence of Section
2.1 of the Credit Agreement is hereby amended to read in its entirety as
follows:
2.1 Agreement to Lend. Lender agrees on the
terms and conditions of this Agreement to make
loans ("Advances") to Borrower in an amount of up
to (a) during the period beginning on
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the date of this Agreement and ending on the
Combination Date, Twelve Million Dollars
($12,000,000); and (b) between the date of the
Combination Date and the Maturity Date,
Twenty-five Million Dollars ($25,000,000) (the
"Commitment"); provided that, after giving effect
to any requested Advance, the Total Revolving
Utilization shall not exceed at any one time
outstanding the Commitment.
2.3 Addition of Section 2.11. A new Section 2.11 is added to the
Credit Agreement immediately after Section 2.10 of the Credit Agreement to read
in its entirety as follows:
2.11. Letters of Credit.
(a) Agreement to Issue. Borrower may
request that Lender issue Letters of Credit for
Borrower's account in accordance with the terms
and conditions of this Section 2.11.
(b) Manner of Requesting Letters of
Credit.
(i) From time to time, and prior to
the Maturity Date, Borrower may request that
Lender issue Letters of Credit for Borrower's
account or extend or renew any existing Letters of
Credit issued hereunder. Each request will be made
by delivering a written request for the issuance,
extension or renewal of such a letter of credit (a
"Letter of Credit Request") to Lender not later
than 10:00 a.m. (Seattle time) three Business Days
prior to the date a new letter of credit is to be
issued or an existing Letter of Credit is to be
extended or renewed. Each Letter of Credit Request
shall be deemed to constitute a representation and
warranty by Borrower that as of the date of such
request the statements set forth in Section 4
hereof are true and correct and that no Default or
Event of Default has occurred and is continuing.
Each Letter of Credit Request shall specify the
face amount of the requested Letter of Credit, the
proposed date of expiration, the name of the
intended beneficiary thereof, and whether such
Letter of Credit is an extension or renewal of an
existing Letter of Credit. Each Letter of Credit
Request shall include terms and conditions for
drawing which shall be reasonably acceptable to
Lender.
(ii) Borrower shall pay letter of
credit fees (a) if the term for such Letter of
Credit is less than or equal to three (3) months,
on the expiration date specified in the Letter of
Credit, or (b) if the term for such Letter of
Credit is greater than three (3) months, on the
date that is three (3) months after the issuance
date and at the end of each three month period
thereafter and on the expiration date. Such letter
of credit fees shall be calculated at (a) one
hundred ninety basis points (1.90%) per annum
where Borrower's EBITDA Ratio is
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greater than or equal to 1.00:1 on the issuance
date of the Letter of Credit, and at (b) one
hundred sixty-five basis points (1.65%) per annum
where Borrower's EBITDA Ratio is less than 1.00:1
on the issuance date of the Letter of Credit.
Borrower shall also pay to Lender from time to
time and on demand the usual issuance,
presentation and processing fees that are standard
fees charged by Lender for services relating to
Letters of Credit as from time to time in effect.
Each Letter of Credit requested hereunder shall be
in a face amount such that after issuance of such
Letter of Credit, the Letter of Credit Usage shall
not exceed Five Million Dollars ($5,000,000). In
addition to the foregoing, each Letter of Credit
requested hereunder shall have a expiration date
not later than the Maturity Date.
(iii) At the request of Lender,
Borrower shall execute a letter of credit
application and reimbursement agreement, in the
standard form used by Lender at the time any
Letter of Credit is requested hereunder (the
"Reimbursement Agreement"), in respect of each
Letter of Credit requested hereunder.
(iv) Subject to Borrower's
compliance with the terms of this Section 2.11,
Lender shall deliver its Letter of Credit to
Borrower or the designated beneficiary at such
address as Borrower may specify. New Letters of
Credit and extensions or renewals of any existing
Letters of Credit issued hereunder shall contain
terms and conditions customarily included in
Lender's Letters of Credit and shall otherwise be
in a form acceptable to Lender.
(v) In the event of any conflict
between the terms of any Reimbursement Agreement
or Letter of Credit and the terms of this
Agreement, the terms of this Agreement shall
control, unless Lender has otherwise agreed in
writing.
(c) Indemnification; Increased Costs.
Borrower shall indemnify Lender on demand for any
and all additional costs, expenses, or damages
incurred by Lender, directly or indirectly,
arising out of the issuance of any Letter of
Credit including, without limitation, any costs of
maintaining reserves in respect thereof and any
premium rates imposed by the Federal Deposit
Insurance Corporation in connection therewith. A
certificate as to such additional amounts
submitted to Borrower by Lender shall be binding,
absent a showing by Borrower of manifest error.
If at any time after the date hereof the
introduction of or any change in applicable law,
rule, or regulation or in the interpretation or
the administration thereof by any Governmental
Authority charged with the interpretation or
administration thereof, or compliance by Lender
with any requests directed by any such
Governmental Authority (whether or not having the
force of law) shall, with
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respect to any Letter of Credit subject Lender to
any Tax (other than a Tax imposed on the net
income or gross revenue of Lender), duty or other
charge or impose, modify, or deem applicable any
reserve, special deposit, or similar requirements
against assets of, deposits with or for the
account of, credit extended by Lender or shall
impose on Lender any other conditions affecting
the Letters of Credit and the result of any of the
foregoing is to increase the cost to Lender of
issuing a Letter of Credit or to reduce the amount
of any sum received or receivable by Lender
hereunder with respect to the Letters of Credit,
then, upon demand by Lender, Borrower shall pay to
Lender such additional amount or amounts as will
compensate Lender for such increased cost or
reduction. A certificate submitted to Borrower by
Lender setting forth the basis for the
determination of such additional amount or amounts
shall be binding absent a showing by Borrower of
manifest error.
Borrower shall indemnify and hold Lender
harmless from and against (a) any and all Taxes
(other than Taxes imposed on the net income or
gross revenue of Lender) and other fees payable in
connection with Letters of Credit or the
provisions of this Agreement relating thereto, and
(b) any and all actions, claims, damages, losses,
liabilities, fines, penalties, costs, and expenses
of every nature, including reasonable attorney's
fees, suffered or incurred by Lender otherwise
arising out of or relating to this Section 2.11,
or any Letter of Credit; provided, however, said
indemnification shall not apply to the extent that
any such action, claim, damage, loss, liability,
fine, penalty, cost, or expense arises out of or
is based upon Lender's gross negligence or willful
misconduct.
(d) Payment by Borrower. Any payment
made by Lender under any Letter of Credit and any
unpaid fees payable by Borrower with respect to
any Letter of Credit shall, without any further
action by either party hereto, be deemed to be a
disbursement to Borrower of an Advance pursuant to
Section 2.1 hereof and all references to
"Advances" in this Agreement shall include all
such amounts.
3. Promissory Note. All references to "Maturity Date" contained in the Note
shall mean the Maturity Date as defined in the Credit Agreement, as hereby
amended.
4. Conditions to Effectiveness. Notwithstanding anything contained herein
to the contrary, this Amendment shall not become effective until each of the
following conditions is fully and simultaneously satisfied:
4.1 Delivery of Amendment. Borrower and Lender shall have executed and
delivered counterparts of this Amendment to Lender.
4.2 Representations True; No Default. The representations of Borrower
set forth in Section 4 of the Credit Agreement shall be true on and as of the
date of this Amendment
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with the same force and effect as if made on and as of this date. No Event of
Default and no event which, with notice or lapse of time or both, would
constitute a Event of Default, shall have occurred and be continuing or will
occur as a result of the execution of this Amendment.
5. Representations and Warranties. Borrower hereby represents and warrants
to Lender that each of the representations and warranties set forth in Article 4
of the Credit Agreement is true and correct in each case as if made on and as of
the date of this Amendment and Borrower expressly agrees that it shall be an
additional Event of Default under the Credit Agreement if any representation or
warranty made hereunder shall prove to have been incorrect in any material
respect when made.
6. No Further Amendment. Except as expressly modified by the terms of this
Amendment, all of the terms and conditions of the Credit Agreement and the other
Loan Documents shall remain in full force and effect and the parties hereto
expressly reaffirm and ratify their respective obligations thereunder.
7. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Washington.
8. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original, and all of which taken
together shall constitute one and the same agreement.
9. Oral Agreements Not Enforceable.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR
TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE
UNDER WASHINGTON LAW.
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY A
BANK AFTER OCTOBER 3, 1989, CONCERNING LOANS AND OTHER CREDIT
EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR
SECURED SOLELY BY THE BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS
CONSIDERATION AND BE SIGNED BY THAT BANK TO BE ENFORCEABLE.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment Number
One to Revolving Credit Agreement as of the date first above written.
LENDER: KEYBANK NATIONAL ASSOCIATION
By XXXXX X. XXXXXXX
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Its Vice President
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BORROWER: FEI COMPANY
By XXXXXXX X. XXXXXXX
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Its CFO
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