Exhibit 10.1
EXECUTION
VERSION
FIRST AMENDMENT TO CREDIT
AGREEMENT,
SECURITY AND PLEDGE
AGREEMENT
AND DISCLOSURE
LETTER
THIS FIRST AMENDMENT TO CREDIT
AGREEMENT, SECURITY AND PLEDGE AGREEMENT AND DISCLOSURE
LETTER (this “
Amendment ”), effective as of March 3, 2009, is
entered into by and among FEI COMPANY , an Oregon
corporation (the “ Borrower ”), each of the
Guarantors listed on the signature pages hereof (such Guarantors,
together with the Borrower, the “ Debtors ”),
each of the Lenders listed on the signature pages hereto and
JPMORGAN CHASE BANK, N.A. , as Administrative Agent under
the Credit Agreement (as herein defined), not in its individual
capacity, but solely as collateral agent for the Lenders and other
Secured Parties (as such terms are herein defined) (in such
capacity, together with its successors in such capacity, the
“ Administrative Agent ”).
RECITALS
WHEREAS , the Borrower, the Guarantors party thereto,
the lenders party thereto (the “ Lenders ”), the
Administrative Agent and J.P. Morgan Europe Limited, as Alternative
Currency Agent for the Lenders, are parties to that certain Credit
Agreement dated as of June 4, 2008 (as amended, modified and
supplemented from time to time, the “ Credit Agreement
”); and
WHEREAS , the Debtors and the Administrative Agent are
parties to that certain Security and Pledge Agreement, executed in
connection with, and dated as of even date with the Credit
Agreement (the “ Security Agreement ”);
and
WHEREAS , in connection with the Credit Agreement and
Security Agreement, the Borrower delivered that certain letter,
dated as of even date with the Credit Agreement, containing certain
schedules, to the Administrative Agent and the Lenders (the “
Disclosure Letter ”); and
WHEREAS , the Debtors wish to conduct a reorganization
of their corporate structure, obtain a release of a portion of the
Collateral and incur additional Indebtedness relating to such
released portion of the Collateral and, in connection therewith,
have requested the Administrative Agent and the Lenders to amend
certain provisions of the Credit Agreement, Security Agreement and
Disclosure Letter; and
WHEREAS , the Administrative Agent and each Lender
signatory hereto has agreed to amend the Credit Agreement, Security
Agreement and Disclosure Letter to the extent reflected in this
Amendment.
NOW, THEREFORE
, in consideration of the premises
and for other good and valuable consideration and the mutual
benefits, covenants and agreements herein expressed, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
1. Defined Terms . All
capitalized terms used in this Amendment and not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit
Agreement.
2. Amendment to Section 1.01
of the Credit Agreement .
(a) Section 1.01 of the Credit
Agreement is hereby amended to restate the definition of
“Termination Date” in its entirety as
follows:
““ Termination
Date ” means May 27, 2013.”
(b) Section 1.01 of the Credit
Agreement is hereby amended to add the following new definitions in
proper alphabetical order:
““ Existing UBS
Account ” means that certain investment account number
WI-04635 held in the name of the Borrower at UBS
Financial.
“ UBS Bank ”
means UBS Bank USA.
“ UBS ARS Collateral
Account ” means that certain investment account held in
the name of the Borrower at UBS Financial holding solely auction
rate securities.
“ UBS Financial ”
means UBS Financial Services Inc.”
3. Amendment to Section 6.01
of the Credit Agreement . Section 6.01 of the Credit
Agreement is hereby amended to add the following new subsection
(q) to the end of said Section 6.01:
“(q) Indebtedness owed by the
Borrower to UBS Bank, or any of its Affiliates providing a loan in
lieu of UBS Bank, that is secured only by the UBS ARS Collateral
Account; provided , that (i) the proceeds of such
Indebtedness are deposited in a deposit account as to which the
Administrative Agent has a perfected first priority security
interest and such account is not subject to any other security
interests, (ii) the Administrative Agent shall have received a
deposit account control agreement, executed by the Borrower and the
financial institution maintaining such account, in form and
substance reasonably satisfactory to the Administrative Agent and
(iii) such Indebtedness shall only be repaid with (A) the
proceeds of the transaction described in
Section 6.04(i) or (B) the proceeds of a
refinancing of such Indebtedness provided by UBS Bank or any of its
Affiliates, but, in any case, must be repaid prior to July 2,
2012; provided, however, that such Indebtedness shall be permitted
to be repaid with any other funds so long as (x) immediately
upon the repayment of such Indebtedness, the Liens on the UBS
Collateral Account are released and the Administrative Agent is
granted a first priority perfected security interest in such
account and (y) no Default or Event of Default has occurred
and is continuing.”
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4. Amendment to Section 6.02
of the Credit Agreement . Section 6.02 of the Credit
Agreement is hereby amended to add the following new subsection
(i) to the end of said Section 6.02:
“(i) Liens on the UBS ARS
Collateral Account securing Indebtedness permitted by
Section 6.01(q) ; provided that such Lien shall
not apply to any other property or asset of the Borrower or any of
its Subsidiaries.”
5. Amendment to Section 6.04
of the Credit Agreement .
(a) Section 6.04 of the Credit
Agreement is hereby amended to restate subsection (h) in its
entirety as follows:
“(h) a transfer by the
Borrower or any of its Subsidiaries of (i) any interest in a
promissory note made by FEI International in the approximate
principal amount of $25,200,000, and upon such transfer, the
Administrative Agent shall release its Lien on such promissory
note, and (ii) all Equity Interests in FEI International to
FEI Global Holdings C.V., a limited partnership organized under the
laws of the Netherlands.”
(b) Section 6.04 of the Credit
Agreement is hereby amended to add the following new subsection
(i) to the end of said Section 6.04:
“(i) a sale by the Borrower of
the securities entitlements credited to the UBS ARS Collateral
Account to UBS Financial or any third party, (i), if made before
June 30, 2010, for not less than 95% of the full par value of
said securities entitlements, and, (ii), if made after said date,
for not less than the full par value thereof, and which sale, in
either case, must be completed on or before July 2, 2012;
provided that, if Indebtedness permitted by
Section 6.01(q) is outstanding at the time of such
sale, the proceeds thereof shall be used to repay such
Indebtedness.”
6. Amendment to Article VI of the
Credit Agreement . Article VI of the Credit Agreement is hereby
amended to add the following new Section 6.17 to the end of
said Article VI:
“SECTION 6.17 UBS
Accounts . The Borrower shall not (i) deposit any cash,
property or other assets into the UBS ARS Collateral Account,
(ii) establish any account at UBS Bank, UBS Financial or any
of their Affiliates other than the Existing UBS Account and the UBS
ARS Collateral Account, (iii) incur any Indebtedness from UBS
Bank, UBS Financial or any of their
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Affiliates other than the
Indebtedness permitted under Section 6.01(q) ;
provided , however, the Borrower shall promptly transfer the
assets held in the Existing UBS Account to the UBS ARS Collateral
Account other than securities in the approximate amount of
$13,000,000 or (iv) permit to exist any Lien on the Existing
UBS Account other than the Lien in favor of the Administrative
Agent.”
7. Amendment to
Section 7.01(g) of the Credit Agreement .
Section 7.01(g) of the Credit Agreement is hereby amended to
add the following new proviso at the end of said
Section 7.01(g):
“; provided further
that this clause (g) shall not apply to any demand for payment
under the Indebtedness permitted by Section 6.01(q)
.”
8. Amendment to Credit Agreement
and Disclosure Letter . The Credit Agreement and Disclosure
Letter are hereby amended to delete in its entirety Schedule 1.01B
referenced in the definitions of “Leverage Ratio” and
“Liquidity” in Section 1.01 of the Credit
Agreement and attached to the Disclosure Letter and replace such
Schedule with Schedule 1.01B attached hereto.
9. Amendment to Security
Agreement . The last sentence of Section 2.01 of the
Security Agreement is hereby amended to delete “and”
immediately preceding subsection (v) and add the following new
subsection (vi) at the end of said sentence:
“, and (vi) the UBS ARS
Collateral Account and any securities entitlements credited to the
UBS ARS Collateral Account.”
10. Amendment to Security
Agreement and Disclosure Letter . The Security Agreement and
Disclosure Letter are hereby amended to delete in its entirety
Annex 3 referenced in the definition of “Securities
Collateral” in Section 1.01 of the Security Agreement
and attached to the Disclosure Letter and replace such Annex with
Annex 3 attached hereto.
11. Ratification . Each
Debtor hereby ratifies all of its Obligations under the Credit
Agreement and the other Loan Documents and agrees and acknowledges
that the Credit Agreement and the other Loan Documents are and
shall continue to be in full force and effect as amended and
modified by this Amendment. Nothing in this Amendment extinguishes,
novates or releases any right, claim, lien, security interest or
entitlement of any of the Lenders, the Secured Parties or the
Administrative Agent created by or contained in the Credit
Agreement or in any other Loan Document nor is any Debtor released
from any covenant, warranty or obligation created by or contained
therein.
12. Representations and
Warranties . Each Debtor hereby represents and warrants to the
Administrative Agent, the Lenders and the Secured Parties that
(i) this Amendment has been duly executed and delivered on
behalf of such Debtor, subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or
other laws affecting creditors’ rights generally and subject
to general principles of equity, regardless of whether considered
in a
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proceeding in equity or at law, (ii) this
Amendment constitutes a valid and legally binding agreement
enforceable against each Debtor in accorded with its terms,
(iii) the representations and warranties contained in the
Credit Agreement and the other Loan Documents are true and correct
on and as of the date hereof in all material respects as though
made as of the date hereof, except as heretofore otherwise
disclosed in writing to the Administrative Agent, provided, that to
the extent such representations and warranties were made as of a
specified date, the same shall be required to remain true and
correct in all material respects as of such specific date,
(iv) no Default or Event of Default exists under the Credit
Agreement or any other Loan Document and (v) the execution,
delivery and performance of this Amendment has been duly authorized
by each of the Debtors.
13. Conditions to
Effectiveness . This Amendment shall be effective upon the
execution and delivery hereof by all parties to the Administrative
Agent and receipt by the Administrative Agent of the following in
form and substance satisfactory to the Administrative
Agent:
(a) this Amendment, executed by all
parties hereto;
(b) a deed of pledge of the
registered claims under the limited partnership agreement of FEI
Global Holdings C.V. (the “ Partnership Agreement
”), together with any other documents or instruments required
under the laws of the Netherlands to grant to the Administrative
Agent, for the benefit of the Secured Parties, a valid, perfected
security interest in 65% of the registered claims under the
Partnership Agreement of FEI Global Holdings C.V. (the “
Dutch Pledge Documents ”);
(c) a certificate of an officer and
of the secretary or an assistant secretary of each of the Debtors
certifying, inter alia , (i) copies of each of the
articles or certificate of incorporation or organization, as
amended and in effect, of such Debtor, the bylaws or operating
agreement or regulations, as amended and in effect, of such Debtor
(or a statement that such documents have not changed since
June 4, 2008) and the resolutions adopted by the board of
directors or managers or members of such Debtor (A) approving
the form of this Amendment and (B) authorizing the execution,
delivery and performance by such Debtor of this Amendment and
(ii) the incumbency and specimen signatures of the officers of
such Debtor executing any documents on its behalf;
(d) an opinion from Dutch counsel,
reasonably satisfactory to the Administrative Agent;
(e) an executed copy of the
Partnership Agreement in form and substance satisfactory to the
Administrative Agent and its counsel;
(f) the payment to the
Administrative Agent of all fees and expenses (including the fees
and disbursements of Andrews Kurth LLP and Linklaters LLP) and all
fees payable to the Lenders in connection with this
Amendment;
(g) such other consents, approvals,
opinions or documents as the Administrative Agent may reasonably
request.
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14. Release and Indemnity
.
(a) Each of the Debtors hereby
releases and forever discharges the Administrative Agent and each
of the Lenders and Secured Parties and each affiliate thereof and
each of their respective employees, officers, directors, trustees,
agents, attorneys, successors, assigns or other representatives
from any and all claims, demands, actions, cross-actions, causes of
action, costs and expenses (including legal expenses), of any kind
or nature whatsoever, whether based in law or equity, which any of
said parties has held or may now or in the future own or hold,
whether known or unknown, for or because of any matter or thing
done, omitted or suffered to be done on or before the actual date
upon which this Amendment is signed by any of such parties
(i) arising directly or indirectly out of the Loan Documents,
or any other documents, instruments or any other transactions
relating thereto and/or (ii) relating directly or indirectly
to all transactions by and between the Debtors or their
representatives and the Administrative Agent, the Lenders and the
Secured Parties or any of their respective directors, officers,
agents, employees, attorneys or other representatives. Such
release, waiver, acquittal and discharge shall and does include,
without limitation, any claims of usury, fraud, duress,
misrepresentation, lender liability, control, exercise of remedies
and all similar items and claims which may, or could be, asserted
by any of the Debtors.
(b) Each of the Debtors hereby
ratifies the indemnification provisions contained in the Loan
Documents, including, without limitation, Section 10.03 of the
Credit Agreement, and agrees that this Amendment and any losses,
claims, damages and expenses related thereto shall be covered by
such indemnities.
(c) Each of the Guarantors hereby
ratifies and reaffirms its obligations under the Guarantees and
confirms that said Guarantees remain in full force and effect
notwithstanding the execution of this Amendment.
15. Counterparts . This
Amendment may be signed in any number of counterparts, which may be
delivered in original or facsimile form, each of which shall be
construed as an original, but all of which shall constitute one and
the same instrument.
16. Governing Law . This
Amendment, all Notes, the other Loan Documents and all other
documents executed in connection herewith other than the Dutch
Pledge Documents and the Partnership Agreement shall be deemed to
be contracts and agreements under the laws of the State of New York
and of the United States of America and for all purposes shall be
construed in accordance with, and governed by, the law of New York
and of the United States.
17. Final Agreement of the
Parties . Any previous agreement among the parties with
respect to the subject matter hereof is superseded by the Security
Agreement, as amended by this Amendment. Nothing in this Amendment,
express or implied, is intended to confer upon any party other than
the parties hereto any rights, remedies, obligations or liabilities
under or by reason of this Amendment.
[Remainder of page
intentionally left blank; signatures on separate
pages]
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IN WITNESS WHEREOF, the Debtors and
the Administrative Agent have caused this Amendment to be duly
executed by their respective authorized officers as of the day and
year first above written.
