EXHIBIT 10.12
CREDIT FACILITY AGREEMENT
THIS AGREEMENT is made this February 25, 1999
between:
1. FEI COMPANY, having its registered seat at 7451 N.W. Evergreen Parkway,
Hillsboro, Oregon, United States of America, 97124-5830,
2. PHILIPS ELECTRON OPTICS INTERNATIONAL B.V., having its registered seat at
Achtse Weg Noord 5, 5651 GG, Eindhoven, the Netherlands,
(the "Borrowers")
and
3. KONINKLIJKE PHILIPS ELECTRONICS N.V., having its registered seat at
Groenewoudseweg 1, 5621 BA Eindhoven, the Netherlands (Lender")
WHEREAS
The Borrowers desire to obtain from the Lender and the Lender has agreed to
grant to the Borrowers, a credit facility of 50 million US-Dollars (or its
equivalent from time to time in Optional Currencies).
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. DEFINITIONS
Words and expressions used in this Agreement shall have the following meaning
unless the context otherwise requires:
"AGREEMENT" means the present agreement entered into by the Borrowers and the
Lender, including the Schedule attached thereto, and any amendment thereto;
"AVAILABLE FACILITY" means the Facility minus the Outstanding Amounts;
"AVAILABLE REVOLVING CREDIT FACILITY" means the Revolving Credit Facility minus
the Outstanding Amounts;
"BORROWERS" means either FEI or PEOI, or FEI and PEOI jointly;
"BUSINESS DAY" means a day on which banks are open for business of the nature
contemplated in this Agreement in Amsterdam and in the financial center of the
relevant currency (the relevant financial center for EUR is deemed to be
London);
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"CURRENT ACCOUNT" means the current account (also within the Philips
organization referred to as "Intercompany Bank Account" or "IBA") of PEOI
denominated in EUR with the Lender;
"DOLLAR AMOUNT" means in relation to a Revolving Advance: (i) if the request for
a Revolving Amount is denominated in US-Dollars, the amount specified in that
request; or (ii) if such request is denominated in an Optional Currency, the
US-Dollars equivalent (at the time the Lender receives such request) of the
amount specified in the request;
"DRAWDOWN DATE" means, in respect of a Revolving Advance, the date of the making
thereof as (deemed) specified in the relevant request;
"EUR" means the lawful currency of countries participating in the third stage of
the Economic and Monetary Union;
"EVENT OF DEFAULT" means any of the events set out in Clause 14 hereunder;
"FACILITY" means the US-Dollars credit facility set out in Clause 2.2 hereunder;
"FEI" means FEI Company;
"FEI GROUP" means FEI and its subsidiaries;
"FINAL MATURITY DATE" means the third anniversary of this Agreement (February
26, 2002);
"INTEREST DETERMINATION DATE" means, in respect of an Interest Period, the day
which is two Business Days prior to the first day of such Interest Period;
"INTEREST PAYMENT DATE" means, in relation to any Revolving Advance, the last
day of an Interest Period relative thereto;
"INTEREST PERIOD" means, in relation to any Revolving Advance, a period as
selected or deemed to have been selected by the Borrowers in accordance with
Clause 5.1 hereunder;
"JPY" means the lawful currency of Japan;
"LENDER" means Koninklijke Philips Electronics N.V.;
"NLG" means the lawful legal tender of the Netherlands;
"NOTICE" means a notice of drawdown of a Revolving Advance or a notice
requesting a next Interest Period substantially in the form as set out in
Schedule A hereto;
"MAXIMUM AMOUNT" means the maximum amount of the Facility as specified in Clause
2.1 hereunder and as may be amended in accordance with Clause 15.1 hereof;
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"OPTIONAL CURRENCIES" means Dutch Guilders (NLG), Euro (EUR) or Japanese Yen
(JPY);
"OUTSTANDING ACCOUNTS" the sum of all Revolving Advances outstanding, the debit
balance on the Current Account and the interest due
"PEOP" means Philips Electron Optics International BV;
"REQUIRED AMOUNT" means (i) in the case of US-Dollars drawn under the Revolving
Credit Facility, a minimum of 10,000 US-Dollars and a higher whole multiple of
US-Dollars 10,000, and (ii) in case of an Optional Currency, such amount as is
agreed between the Borrowers and the Lender, or failing agreement, the
equivalent of the Required Amounts relevant to the Revolving Credit Facility for
US-Dollars;
"REVOLVING ADVANCE" means any revolving advance made or to be made available by
the Lender to the Borrowers in any one currency in accordance with the
provisions of this Agreement and for the time being outstanding under the
Revolving Credit Facility,
"REVOLVING CREDIT FACILITY" means the credit facility as specified in Clause 2.2
hereof;
"TERM" means in relation to a Revolving Advance, the period for which it is to
be borrowed, being one, three or six months, ending not later than the Final
Maturity Date;
"US-DOLLAR" AND "USD" mean the lawful currency of the United States of America.
2. THE FACILITY
2.1 AMOUNT
The Lender grants to the Borrowers a total credit facility of 50 million
US-Dollars (or its equivalent from time to time in Optional Currencies). This
amount may be reduced by FEI in accordance with Clause 15 hereof (partial
cancellation).
2.2 REVOLVING CREDIT FACILITY AND CURRENT ACCOUNT
The Facility consists of a revolving credit facility for the Maximum Amount (or
its equivalent from time to time in Optional Currencies) (the "Revolving Credit
Facility") including a credit facility on the Current Account for the maximum of
10 million US-Dollars. If there is a debit balance on the Current Account, the
Available Revolving Credit Facility will be reduced accordingly. The Outstanding
Amounts will at no time exceed the Maximum Amount.
PEOI has entered into an agreement with the Lender specifying the terms and
conditions applicable to the Current Account.
EXHIBIT 10.12
2.3 PROCEEDS
The proceeds of the Facility will be used for general corporate business
purposes of the FEI Group only and not for the purpose of acquisitions or
take-overs.
2.4 COMMITMENT FEE
FEI will pay to Lender a commitment fee of 0.25 per cent (25 basis points) per
annum. from day to day during the period starting February 25, 1999 and ending
on the Final Maturity Date on the amount to be calculated as follows: the
Maximum Facility minus US-Dollars 10 million minus the sum of the Revolving
Advances outstanding. If the aggregate of the Revolving Advances outstanding
exceeds or equals the Maximum Amount minus 10 million US-Dollars, no commitment
fee has to be paid. The commitment fee will be paid to the bank account of the
Lender at the end of each period of six (6) months, for the first time in July
1999 (so the first commitment fee will be paid over a period of six months less
55 days) within 5 Business Days upon the written request of the Lender. Such
request will contain a specification of the fee to be paid.
3. CONDITIONS PRECEDENT
The several obligations of the Lender under this Facility shall be expressly
subject to the Lender having received, in form and substance satisfactory to the
Lender, not later than the date set out in Clause 4.1 on which the Borrower
gives a Notice for the drawdown hereunder, evidence of authority of those
persons authorized to execute, deliver and perform this Agreement and any
notices required hereunder on behalf of the Borrowers.
4. DRAWDOWN OF REVOLVING ADVANCES
4.1 NOTICE
Revolving Advances will be made by the Lender to FEI or PEOI at the request of
the Borrowers (or any one of them), if the following additional conditions are
fulfilled:
I. The Lender has received from the relevant Borrower not later than 10:00
a.m. (Amsterdam time) on the third Business Day before the Drawdown Date of
the Revolving Advance, a written notice specifying:
(a) the Drawdown Date of the Revolving Advance, which must be a Business
Day ultimately one month before the Final Maturity Date;
(b) its amount, which may not result in a breach of Clause 2.2 and so that
(i) its Dollar Amount must be equal to or less than the Available
Revolving Credit Facility and (ii) if its Dollar Amount is less than
the Available Revolving Credit Facility, the amount of that Revolving
Advance must be the Required Amount;
EXHIBIT 10.12
(c) its currency (in US-Dollars or one of the Optional currencies);
(d) its Term, which must be in accordance with clause 4.2;
(e) the name of the borrower (either FEI or PEOI);
(f) details of the bank and account to which FEI wishes the proceeds of
that Revolving Advance to be made available.
II. All representations and warranties in this Agreement have been complied
with in all material respects as at the date of the request of the
Revolving Advance, and would be correct in all material respects if
repeated on the Drawdown Date of that Revolving Advance, by reference to
the circumstances then existing.
III. No Event of Default has occurred on or before the Drawdown Date of that
Revolving Advance and is continuing or will occur as a result of making
that Revolving Advance.
IV. The request is duly signed by an authorized person or persons as specified
in Schedule B hereto.
Borrowers shall notify the Lender in writing of any change in or withdrawal of
the authorization of any person mentioned on Schedule B, notwithstanding their
entry in public registers, in default of which notification such change or
withdrawal cannot be invoked against the Lender.
4.2 TERM
The Term of a Revolving Advance shall begin on the Drawdown Date of that
Revolving Advance and shall have a duration of one, three or six months, or a
period of less than six months ending on the Final Maturity Date, as selected by
the relevant Borrower in the notice requesting that Revolving Advance, except
that the Borrowers may not select a Term ending after the Final Maturity Date.
4.3 SUBSTITUTION OF BALANCE ON CURRENT ACCOUNT INTO REVOLVING ADVANCE
Revolving Advances will be deemed requested by PEOI and deemed made by the
Lender to PEOI if the debit balance on the Current Account is exceeding the
equivalent of US-Dollars 10 million for more than 5 consecutive Business Days
under the following conditions:
I.
(a) the Drawdown Date of the Revolving Advance, being a Business Day
before the Final Maturity Date, is the day on which the balance on the
Current Account is exceeding the equivalent of US-Dollars 10 million
for 5 consecutive Business Days (the "Overdrawn Date");
EXHIBIT 10.12
(b) the amount of such Revolving Advance will be a minimum of EUR 10,000,
or such higher whole multiple of EUR 10,000 that the amount of the
Revolving Advance will not exceed the debit balance on the Current
Account on the Overdrawn Date minus the equivalent of US-Dollars 10
million,
(c) its Term will be one month; provided that such Revolving Advance does
not result in a breach of Clause 2.2;
II. All representations and warranties in this Agreement have been complied
with in all material respects as at the date of the request of the
Revolving Advance, and would be correct in all material respects if
repeated on the Drawdown Date of that Revolving Advance, by reference to
the circumstances then existing.
III. No Event of Default has occurred on or before the Drawdown Date of that
Revolving Advance and is continuing or will occur as a result of making
that Revolving Advance.
If a Revolving Advance is made in accordance with this Clause, the Current
Account will be credited on the Overdrawn Date for the amount of such Revolving
Advance deemed made.
5. INTEREST
5.1 INTEREST PERIODS REVOLVING ADVANCES
Each Revolving Advance shall bear interest calculated by reference to the
successive Term of that Revolving Advance.
FEI shall notify its selection as to the duration of each Interest Period, in
the Notice relative to the Revolving Advance (in case of the first Interest
period of the Revolving Advance) and subsequently by Notice in writing to the
Lender to be received by it not later than 10:00 am. (Amsterdam time) on the
third Business Day prior to the first day of each subsequent Interest Period,
provided that if FEI fails to give notice of its selection in relation to the
duration of an Interest Period, such duration shall be of one month and further
provided that:
(a) the first Interest Period in respect of each Revolving Advance shall
commence on the Drawdown Date referred to in Clause 4.1 sub I and shall end
upon the expiry of the period selected or otherwise determined in
accordance with this sub-Clause;
(b) each subsequent Interest Period shall commence on the last day of the
preceding Interest Period,
(c) if any Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period shall be extended to the next succeeding Business
Day, unless such succeeding Business Day falls in another calendar month
in which event that Interest Period shall end upon the immediately
preceding Business Day;
EXHIBIT 10.12
(d) if an Interest Period is extended or shortened by application of the
preceding paragraph, the following Interest Period shall end on the day on
which it would have ended if the preceding Interest Period had not been so
extended or shortened;
(e) any Interest Period which commences on a day of a calendar month (whether
the last day or another day) for which there is no numerically
corresponding day in the month in which the relevant Interest Period should
end shall, subject to paragraph (_), end on the last Business Day of such
month; and
(f) no Interest Period shall extend beyond the Final Maturity Date.
5.2 INTEREST REVOLVING ADVANCES
The rate of interest applicable to each Revolving Advance for each Interest
Period relative thereto shall be the aggregate of the rate per annum which
appears on the Interest Determination Date in London on the relevant page of the
Telerate Service designated for the display of London Interbank Offered Rate for
that Term in the currency in which the Revolving Advance to which that Term
relates is to be denominated plus 0.75% (75 basis points).
Interest in relation to a Revolving Advance shall be payable on each Interest
Payment Date relative thereto.
Interest shall accrue from day to day and shall be computed on the basis of a
year of 360 days.
5.3 INTEREST CURRENT ACCOUNT
The rate of debit interest applicable to the Current Account shall be the
aggregate of the rate per annum. which appears on the relevant page of the
Telerate Service designated for the display of London Interbank Offered Rate for
a period of one week in the currency in which the Current Account is
denominated plus 0.75% (75 basis points).
The rate of credit interest on a day to day basis applicable to the Current
Account shall be the "LIBID" rate for a period of one week in the currency in
which the Current Account is denominated (approximately London Interbank Offered
Rate minus 0.125% (12.5 basis points).
Interest in relation to the Current Account shall be automatically debited or
credited as the case may be from or to the Current Account at the end of each
month (a month in this respect win be a month as determined by the 'Philips
Concern Calendar', attached as Schedule F). On the request of the Borrowers, the
Lender will inform them timely of such periods not covered by Schedule F. The
Lender will give a specification of the interest (to be) paid.
Interest shall accrue from day to day and shall be computed on the basis of a
year of 365 days.
EXHIBIT 10.12
5.4 DETERMINATION OF INTEREST
Each determination of the rate of interest by the Lender hereunder shall be in
writing and shall in the absence of manifest error be conclusive and binding
upon the Borrowers.
5.5 DEFAULT INTEREST
The rate of interest on a day to day basis applicable to a Revolving Advance not
paid when (declared) due hereunder shall be the aggregate of the interest rate
applicable to such Revolving Advance plus one percent (100 basis points).
The rate of interest on a day to day basis applicable to any other amount not
paid when (declared) due hereunder shall be the aggregate of the interest rate
specified in Clause 5.3 plus one percent (100 basis points).
6. REPAYMENT
6.1 NORMAL REPAYMENT
The Facility shall be repaid in the respective currencies of the Revolving
Advances in full on the Final Maturity Date, unless it is prepaid earlier in
accordance with the provisions of this Agreement.
6.2 PREPAYMENT
(a) The Borrowers may prepay any part of all of the outstanding Revolving
Advances in the several currencies at any one time, without premium or
penalty at any time, if they give to the Lender not less than 5 Business
Days written notice of the Revolving Advance(s) to be prepaid and the date
and amount of the prepayment. Any such prepayment must be accompanied by
accrued interest on the amount prepaid and by any other sum then due
pursuant to this Agreement.
(b) Any notice of intention to make a prepayment shall be irrevocable and shall
oblige the Borrowers to make such prepayment on the relevant Interest
Prepayment Date.
(c) As the Credit Facility is revolving, any amount prepaid before the Final
Termination Date will remain available for reborrowing on the terms and
conditions of this Agreement.
7. PAYMENTS
All payments to be made hereunder by the Borrowers or the Lender shall be. made
in the relevant currency to the relevant account on the date upon which the
RELEVANT PAYMENT is due by credit to the account numbers as specified in
Schedule C HERETO, OR, as the case may be, such other accounts and/or banks as
the parties may from time to time agree upon.
EXHIBIT 10.12
8. TAXES
Subject as hereinafter provided, all payments to be made by the Borrowers
hereunder (whether of principal, interest or otherwise) shall be made FREE AND
clear of and without any deductions or withholdings whatsoever, save and to the
extent required by applicable law.
If the Borrowers are compelled by law to make any such deduction or withholding,
they shall ENSURE THAT such deduction or withholding does not exceed the minimum
liability therefor and shall promptly pay to the Lender such additional amount
as is necessary to ensure that the net amount received and retained by the
Lender is equal to the amount payable by the Borrowers had there been no
deduction or withholding.
9. ILLEGALITY
Notwithstanding any other provision herein, if any change in law, regulation or
treaty or in the official interpretation or application thereof by any competent
authority or any competent court shall make it unlawful for the Lender to make
or to fund or continue to fund a Revolving Advance or part THEREOF, THEN the
Lender shall be entitled by written notice thereof to the Borrowers, to declare
that its participation in the relevant Revolving Advance shall be terminated
forthwith or upon expiry of any legally admissible delay, whereupon the
Borrowers shall prepay such Revolving Advance TOGETHER WITH accrued interest
thereon, whereupon the Facility shall be reduced to the then outstanding
Revolving Advances.
Notwithstanding the provisions of the Dutch law in this respect, the Lender will
make its best efforts in the occurrence of any of the events mentioned in this
Clause 9 to secure, in agreement with the Borrowers, a satisfactory solution
which would make the reduction of the Facility unnecessary.
10. REPRESENTATIONS AND WARRANTIES
The Borrowers hereby REPRESENT AND warrant to and for the benefit of the Lender
that:
10.1 FEI is a legal entity duly incorporated in the State of Oregon and validly
organized under the laws of the State of Oregon and has the corporate power
to carry on its business as it is now being conducted;
10.2 PECII is a limited liability body duly incorporated in the Netherlands and
validly existing under the laws of the Netherlands and has the corporate
power to carry on its business as it is now being conducted;
EXHIBIT 10.12
10.3 each of the Borrowers has the corporate power and authority to enter into
and perform its obligations under this Agreement and has taken all
necessary action to authorize the making of the drawdown upon the terms and
conditions of this Agreement and to authorize the execution and performance
of this Agreement in accordance with its respective terms;
10.4 this Agreement constitutes legal, valid and binding obligations of the
Borrowers fully enforceable against them in accordance with its respective
terms and the terms thereof have been (or will be where applicable)
complied with by the Borrowers in all material respects, the same will
constitute legal, valid and binding obligations of the Borrowers
enforceable in accordance with its terms subject to the laws of bankruptcy
and other laws affecting the rights of creditors generally,
10.5 the execution, delivery and performance by the Borrowers of this Agreement
do not and will not violate in any respect any provision of the articles of
incorporation of FEI and/or PEOI;
10.6 no litigation, arbitration or administrative proceedings are at present
current or pending or, to the knowledge of the Borrowers, threatened which
would have a material adverse effect on their ability to perform and comply
with their respective obligations under this Agreement;
10.7 no Event of Default and no other event which, with the giving of notice or
lapse of time or both, might constitute an Event of Default has occurred
and is continuing.
11. DEFINITIONS WITH RESPECT TO FINANCIAL RATIOS
The following expressions used in this Clause II and Clause 13 shall be
construed in accordance with US Generally Accepted Accounting Principles but so
that:
"INTEREST EXPENSE" in relation to any fiscal year of FEI Group, means the
consolidated interest expense under US Generally Accepted Accounting Principles
as shown or determined from the Financial Statements for such fiscal year, and
in relation to the 12 month period ending at the end of each quarter means the
consolidated interest expense under US Generally Accepted Accounting Principles
as shown or determined from the Financial Statements for such period.
"INCOME FROM OPERATIONS" in relation to any fiscal year of FEI Group, means
income (loss) Before Taxes plus or minus the sum of the amounts for such fiscal
year included in determining such income (loss) Before Taxes of (A) consolidated
interest expense, (B) amortization of intangibles arising from the merger of
PEOI with FEI and the acquisition of Micrion by FEI Group for that fiscal year
and (C) unusual and non-recurring items for that fiscal year including (a)
write-off of in-process research and development, (b) other non cash costs of
mergers and acquisitions activity relating to the merger of PEOI with FEI and
the acquisition of Micrion (c) restructuring and reorganization costs (d) other
non-recurring non-cash losses/gains and charges
EXHIBIT 10.12
(e) extraordinary items (i) cumulative effects of a change in accounting
principles, all as determined in accordance with US Generally Accepted
Accounting Principles, and in relation to the 12 month period ending at the end
of each quarter, means income (loss) Before Taxes plus or minus the sum of the
amounts for the previous four quarters included in determining such income
(loss) Before Taxes of (A) consolidated interest expense, (B)
amortization of intangibles arising from the merger of PEOI with
FEI and the acquisition of Micrion by FEI Group for the previous
four quarters and (C) unusual and non-recurring for the previous
four quarters items including (a) write-off of in-process research
and development, (b) other non cash costs of mergers and
acquisitions activity relating to the merger of PEOI with FEI and
the acquisition of Micrion (c) restructuring and reorganization
costs (d) other non-recurring non-cash losses/gains and charges (e)
extraordinary items (ii) cumulative effects of a change in
accounting principles, all as determined in accordance with US
Generally Accepted Accounting Principles, all as shown in or
determined from the Financial Statements for the relevant period.
"STOCKHOLDERS' EQUITY" at any time means the aggregate (expressed in US-Dollars)
at such time of the total shareholders' equity as shown in or determined by the
Financial Statements for the relevant period.
"TOTAL CAPITALIZATION" at anytime means the aggregate at such time of Total
Debt and Stockholders' Equity as shown in or determined by the Financial
Statements for the relevant period.
"TOTAL DEBT" at any time means the aggregate (expressed in US-Dollars) of (i)
all long term liabilities expressed as being due after one or more years from
the relevant balance sheet date, excluding for this purpose all such liabilities
classified as "other liabilities (non-interest-bearing)" or "deferred income
taxes" plus (ii) all current liabilities but excluding for this purpose all such
liabilities classified as "non-interest-bearing debt"; all as shown in or
determined from the Financial Statements for the relevant period.
"AUDITORS' CERTIFICATE" means a certificate by the auditors of FEI as to the
amount of Interest Expense, Income from Operations, Stockholders' Equity, and
Total Debt at any date and shall be final and conclusive except for manifest
error.
"FINANCIAL STATEMENTS" mean the annual audited consolidated financial statements
of FEI Group or the quarterly unaudited consolidated financial statements of FEI
Group as filed at the SEC (form "10 Q" or "10K"), all expressed in US-Dollars
and prepared in accordance with US Generally Accepted Accounting Principles.
EXHIBIT 10.12
12. COVENANTS
12.1 FEI hereby covenants and agrees, so long as any amounts remain outstanding
hereunder or, in the event that there are no such amounts outstanding, so
long as this Agreement remains in effect that:
(a) as soon as available but not later than 50 days after the end of each
quarter (beginning with the current one) and with the exception of
each fourth quarter of the year, FEI will deliver to the Lender the
Financial Statements as at the end of and for that quarter together
with copies of the related SEC report "10 Q";
(b) as soon as available but not later than 95 days after the end of each
fiscal year (beginning with the current one), FEI will deliver to the
Lender its Financial Statements (and one copy of its annual report) as
at the end of and for that financial year together with copies of the
related SEC reports "10 K" and the related auditors' report.
12.2 Borrowers hereby covenant and agree, so long as any amounts remain
outstanding hereunder or, in the event that there are no such amounts
outstanding, so long as this Agreement remains in effect that:
(a) each of the Borrowers shall duly perform and observe all its
obligations under this Agreement and promptly inform the Lender of any
circumstance having or which could have a material adverse effect on
its ability to perform its obligations hereunder,
(b) the Borrowers shall notify the Lender in writing of any Event of
Default and of the steps being taken to remedy such Event of Default
forthwith upon becoming aware of the occurrence thereof.
13. GUARANTEE AND OTHER CONDITIONS
The Borrowers acknowledge that the Lender has agreed to make the Facility
available to the Borrowers in reliance on the following guarantee and covenants:
13.1 the Borrowers hereby jointly and severally unconditionally and irrevocably
guarantee to the Lender due and punctual payment of the principal of and
interest on the Revolving Advances and the Current Account and all other
sums due under this Agreement when and as the same shall become due and
payable, whether a Revolving Advance is drawn by FEI or PEOI.
EXHIBIT 10.12
13.2 FEI shall be subrogated to all rights of the Lender against PEOI in respect
of any amounts paid by FEI pursuant to the provisions of this guarantee,
provided, however, that FEI shall not be entitled to enforce or to receive
any payments arising out of, or based upon, such rights of subrogation.
until all the principal of and interest on the Revolving Advances and the
Current Account shall have been paid in full or duly provided for.
13.3 the Borrowers jointly and severally undertake that, so long as any sum
remains to be payable by it under this Agreement:
(a) their payment obligations under this Agreement rank and will at all times
rank at least equally and ratable in all respects (Pari passu) with all
their other unsecured and unsubordinated indebtedness for borrowed money
except for such indebtedness preferred only by mandatory provisions of law.
(b) they will not create or have outstanding any security for their
indebtedness for borrowed money on or over the Borrowers' assets except
for: (i) the securities listed in Schedule D hereto (ii) any security
existing on or over assets acquired by the Borrowers from a Subsidiary not
created in contemplation of or in connection with the acquisition of those
assets by the Borrowers, (iii) to the extent that any off-balance sheet
financing of itself constitutes security over any assets of the Borrowers,
that security over such assets, (iv) to the extent that any discounting,
factoring or other disposal of any book debts or receivables of themselves
constitutes security over such book debts or receivables, that security
over such book debts or receivables, (v) securities directly relating to
advance payments, received with a maximum of USD 3 million at any time,
(vi) any other security created or outstanding with the prior consent of
the Lender, (vii) any rights of set-off arising by operation of law only or
in the ordinary course of banking other than rights of set-off arising
pursuant to an agreement relating to indebtedness for borrowed money having
an initial maturity of more than 1 year entered into after the date of this
Agreement.
(c) FEI will with each set of the Financial Statements delivered under Clause
12 sub 1 deliver to the Lender an Auditors' Certificate confirming
compliance with Clause 13.4 as at the end of a fiscal year or a certificate
signed by the Chief Executive Officer or Chief Financial Officer of FEI
confirming compliance with Clause 13.4. Each such certificate will set out
in reasonable detail and in a form reasonably satisfactory to the Lender
the computations necessary to demonstrate such compliance. A draft of such
certificate is attached as Schedule E.
EXHIBIT 10.12
13.4 The Borrowers will jointly and severally ensure that, based on the
Financial Statements and per the date to which they relate, as any sum
remains to be lent to or remains payable under this Agreement:
(a) the Stockholders' Equity will in the year 1999 not be less than
US-Dollars 92 million;
(b) the Stockholders' Equity will in the year 2000 and 2001 not be less
than US Dollars 100 million;
(c) the ratio of Stockholders Equity to Total Capitalization will be more
than 1 to 2;
(d) the ratio of Income from Operations to Interest Expense will not in
respect of any financial year of the FEI Group, or any 12 month period
ending on the last day of a quarter, be less than 4 for the first and
second quarter of 1999 and thereafter not less than 6.
If FEI Group acquires assets for an amount exceeding 25% of its
Stockholders' Equity according to its latest Financial Statements before
such acquisition, the Borrowers may request the Lender to adjust the
minimum ratios mentioned under 13.4 sub (d) to reflect such acquisition.
13.5 FEI will not dispose and will procure that none of its subsidiaries
(including PEO) will, except with the consent of the Lender (disregarding
disposals in the ordinary course of business and any sale, lease, transfer
or other disposal of any of its revenues or its assets on an arm's length
basis for fair market value and the payment of lawful dividends) sell,
lease, transfer, lend (other than the lending of cash to any of its
subsidiaries) or otherwise dispose of, by one or more transactions or
series of transactions (whether related or not), the whole or any material
part of its respective business, revenues or assets ("material" in this
context means a sale, lease, transfer, loan or disposal of any part of its
business, assets or revenues which, by itself (in the case of a single
transaction) or which aggregated (in the case of a number of related
transactions), is more than 10 percent of the revenues or assets of the FEI
Group taken as a whole or, in any case, the disposal of which (alone or so
aggregated) would have a material adverse effect on any Borrower's ability
to perform or comply with its obligations under this Agreement).
13.6 FEI will ensure that there is no material change in the nature of the
business of the FEI Group taken as a whole (whether by a single transaction
or a number of related or unrelated transactions, whether at one time or
over a period of time and whether by disposal, acquisition or otherwise)
which has or could have a material adverse effect on any Borrower's ability
to perform and comply with its obligations under this Agreement.
EXHIBIT 10.12
14. EVENTS OF DEFAULT
The following are Events of Default:
(a) Non-payment: The Borrowers do not pay in the manner provided in this
Agreement (i) any principal payable under it when due, unless the Borrowers
satisfy the Lender that non-payment is due solely to administrative error
(whether by the Borrowers or a bank involved in transferring funds to the
Lender) and payment is made within 5 Business Days after written notice of
that non-payment has been given to it by the Lender or (ii) any other sum
payable under it within 10 Business Days after written notice of that
non-payment has been given to it by the Lender.
(b) Breach of Representation or Warranty: Any representation or warranty by the
Borrowers pursuant to Clause 10 is not complied with in any material
respect or is or proves to have been incorrect, in any material respect,
when made.
(c) Breach of Other Obligation: The Borrowers do not perform or comply in any
material respect with any one or more of their other obligations under this
Agreement and, if that default is capable of remedy, it is not remedied
within 30 days after written notice of that default has been given to it by
the Lender.
(d) Cross Default: Any other indebtedness of the Borrowers in respect of
borrowed money and forming part of its Total Debt (i) is payable (whether
automatically under the provisions of any agreement relating to that
indebtedness or as a result of any declaration or the Eke made under any
such agreement) before its normal maturity by reason of any actual default
or event of default, however described, and is not paid on becoming so
payable or within any applicable grace period unless it is being contested
in good faith by appropriate means or (ii) is not paid by reason of the
actual default of the Borrowers when due nor within any applicable grace
period in any agreement relating to that indebtedness unless it is being
contested in good faith by appropriate means, except in any such case where
the Borrowers is prevented, directly or indirectly, by any government or
other authority from fulfilling the relevant obligation. However, no Event
of Default will occur under this Clause 14 (d) unless the amount of the
indebtedness for borrowed money in respect of which any event mentioned in
this Clause 14 (d) has occurred equals or exceeds US-Dollars 5 million or
its equivalent in other currencies (as reasonably determined by the
Lender).
EXHIBIT 10.12
(e) INSOLVENCY: FEI or PEOI is (or is deemed by law or a court to be) insolvent
(including a faillissement (within the meaning of the Netherlands'
bankruptcy act) or unable to pay its debts or one of the Borrowers stops,
suspends or threatens to stop or suspend payment of all or a material part
of its indebtedness (including a surse'ance van betaling, within the
meaning of the Netherlands' bankruptcy act), begins negotiations or takes
any other step with a view to the deferral, rescheduling or other
readjustment of all of its indebtedness (or of any material part which it
will or might otherwise be unable to pay when due), proposes or makes a
general assignment or an arrangement or composition with or for the benefit
of the relevant creditors or a moratorium is agreed or declared in respect
of or affecting all or a material part of the indebtedness of the
Borrowers.
(f) WINDING-UP: An order is made or an effective resolution is passed for the
winding-up of one of the Borrowers.
(g) ANALOGOUS EVENTS: Any event occurs which, under the law of any relevant
jurisdiction, has an analogous or equivalent effect to any event mentioned
in Clause 14 (e).
(h) CHANGE OF CONTROL: The Lender has given written notice to FEI that it
ceases to own directly or indirectly more than 50 per cent of the issued
equity share capital of FEI. However, no Event of Default will occur under
this clause 14 (h) unless 120 days have elapsed since the Lender ceased to
own directly or indirectly more than 50 per cent of the issued equity share
capital of FEI, or since the relevant written notice, whichever is latest.
(i) CHANGE IN RELATIONSHIP BORROWERS: FEI ceases to own directly or indirectly
100 per cent of the issued equity share capital of PEOI, unless such
reduction is approved beforehand in writing by the Lender.
If at any time and for any reason (and whether within or beyond the control of
any party to this Agreement) any Event of Default has occurred then at any time
thereafter, the Lender shall by written notice to the Borrowers declare all
Outstanding Amounts, all unpaid accrued interest or fees and any other sum then
payable under this Agreement to be immediately due and payable, whereupon they
shall become so due and payable, unless the event which constitutes the Event of
Default is remedied before the Lender has sent the aforementioned notice and the
Lender is informed of such remedy by the Borrowers in writing before the Lender
sent such notice.
EXHIBIT 10.12
However, if the Event of Default as referred to under Clause 14 (e) or 14 (g) is
capable of being cured, the Outstanding Amounts, all unpaid accrued interest or
fees and any other sum then payable under this Agreement, shall become due and
payable 5 days after the notice to declare all such amounts due and payable has
been sent by the Lender, unless the Lender explicitly mentions a different
period in such notice, and unless FEI Group did not meet the ratios mentioned in
Clause 13.4, based on latest monthly management report as FEI submits to the
Lender each month, in which case all amounts outstanding as referred to win
become due and payable immediately. If an Event of Default as referred to under
Clause 14 (e) or 14 (g) has
occurred, no Revolving Advances or draw downs form the Current Account will be
possible till such Event of Default is cured, unless approved by the Lender
beforehand.
At any time after such occurrence the Lender may, by notice in writing to the
Borrowers, declare that the Facility is cancelled and that all amounts
outstanding thereunder, if any, are immediately due and payable, together with
interest thereon and any other costs, charges and expenses. Such declaration
shall be effective forthwith.
The Borrowers jointly and severally under-take to indemnify the Lender against
any reasonable direct loss or expenses which any of them may sustain or incur as
a consequence of the occurrence of any Event of Default hereunder.
15. CANCELLATION BY BORROWERS
15.1 NOTICE OF CANCELLATION
FEI may declare on behalf of the Borrowers in writing that the Facility is
cancelled in full or in part. If the Facility is cancelled in part, such
notice shall state the new Maximum Amount (in US-Dollars). The cancellation
will be effective on the date mentioned in the notice ("Cancellation
date"). The Cancellation Date should be at least five (5) Business Days
after receipt by the Lender of such notice.
15.2 PARTIAL CANCELLATION
A partial cancellation will only become effective if on the Cancellation
Date the Outstanding Amounts are less than the proposed amended Maximum
Amount.
15.3 CANCELLATION IS IRREVOCABLE
Any cancellation in accordance with this article 15 will be irrevocable.
Any reduction of the Maximum Amount made in accordance with this Clause 15,
will not be available for reborrowing.
EXHIBIT 10.12
16 MISCELLANEOUS
16.1 Expenses
The Borrowers and the Lender will pay their own costs and expenses (including
taxes thereon and legal fees) incurred in connection with the preparation,
negotiation or entry into this Agreement and/or any amendment of, supplement to
or waiver in respect of this Agreement.
Where any repayment of principal by the Borrowers is made on a day which is not
an Interest Payment Date, the Borrowers shall pay all such amounts as shall be
necessary to compensate the Lender for any direct loss or expenses incurred by
it for the remainder (if any) of the then current Interest Period(s) as a result
of such prepayment unless such prepayment is made in compliance with Clause 6.2
sub (a) and the certificate of the Lender as to such amounts shall be conclusive
and binding on the Borrowers save for manifest error.
16.2 LAW AND JURISDICTION
This Agreement shall be governed by and construed in all respects in accordance
with the laws of The Netherlands. The Borrowers hereby irrevocably submit, in
respect of any suit, action or proceeding arising out of this Agreement, to the
non-exclusive jurisdiction of the Courts of the Netherlands.
16.3 REMEDIES AND OTHER WAIVERS
Save as otherwise provided in this Agreement no failure to exercise nor any
delay in exercising on the part of any Lender any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise of any right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided are cumulative and not exclusive of any rights or
remedies provided by law.
16.4 ENTIRE AGREEMENT AND SCHEDULES
This Agreement constitutes the entire Agreement between the parties with respect
to the subject matter hereof as of the date of this Agreement and supersedes all
prior agreements, negotiations, representations and proposals whether written or
oral with respect to the credit facility contemplated herein. The Appendices to
this Agreement are incorporated in full in this Agreement and form part thereof.
EXHIBIT 10.12
16.5 COMMUNICATIONS
All notices (including Notices), requests, demands or other communications to or
upon the parties hereto shall be in writing and deemed to have been duly given
or made when delivered (in the case of personal delivery or letter) and when
dispatched to the party to which the same is required or permitted to be Oven
under this Agreement, addressed as follows:
IF TO THE LENDER:
Koninklijke Philips Electronics N.V. as well as to: Koninkfijke Philips Electronics N.V.
Corporate Treasury Department Corporate Treasury Department
Attn: Mr. Jan Maarten Ingen Housz Attn: Mrs Laura Munisteri
Building HRT-28 Building HRT-28
Rembrandt Tower, Amstelplein 1 Rembrandt Tower, Amstelplein 1
P.O. Box 77900 P.O. Box 77900
1070 MX Amsterdam 1070 MX Amsterdam
The Netherlands The Netherlands
Tel: 3120 59 77 350 Tel: 3120 59 77 363
Fax: 3120 59 77 357 Fax: 3120 59 77 370
IF TO THE BORROWERS:
FEI Company as well as to: FEI Company
Attn: Mr. Mark V. Allred Attn: Mr. Derek Garrett
7451 N.W. Evergreen Parkway, 7451 N.W. Evergreen Parkway,
Hillsboro, Oregon, 97124-5830, Hillsboro, Oregon, 97124-5830,
United States of America United States of America
Tel: 1503 844 2666 Tel: 1503 844 2699
Fax: 1503 726 2720 Fax: 1503 726 2720
As well as to:
Philips Electron Optics International B.V. and Philips Electron Optics International B.V.
Attn: Mr. Michel G. van Woesik Attn: Mr. Nico. H.W. Vrijenhoek
Achtseweg Noord 5 Achtseweg Noord 5
P.O. Box 218 P.O. Box 218
5600 NID Eindhoven 5600INID Eindhoven
The Netherlands The Netherlands
Tel: 3140 276 63 47 Tel: 3140 276 60 34
Fax: 3140 276 6164 Fax: 3140 276 6164
Building AAE Philips Electron Optics International B.V.
17. NOVATION
17.1 This Agreement shall benefit and bind the parties, their assignees and
their respective successors. Any reference in this Agreement to any party
shall be construed accordingly.
EXHIBIT 10.12
17.2 The Borrowers may not novate or assign its rights or obligations under this
Agreement without the prior written approval of the Lender.
17.2 The Lender may novate or assign its rights or obligations under this
Agreement to a group company of the Lender (in the sense of article 2:24b
of the Dutch Civil Code), unless such novation or assignment will have any
adverse effects with respect to (one of) the Borrowers. In the event of an
allowed novation or assignment the Borrowers will co-operate to effect such
novation or assignment.
EXHIBIT 10.12
IN WITNESS WHEREOF the parties hereto have executed this Agreement as per
February 17th, 1999.
FEI COMPANY
__________________________________ ____________________________________
V. Sarkissian Mr. Mark V. Allred
Title: Chief Executive Officer Title: Corporate Controller
Date: Date:
PHILIPS ELECTRON OPTICS INTERNATIONAL B.V.
__________________________________ ____________________________________
Mr. Nico H. W. Vrijenhoek Mr. Michel G. van Woesik
Title: General Manager Title: Treasurer
Date: Date:
KONINKLIJKE PHILIPS ELECTRONICS N.V.
__________________________________
Mr. J.M.L.M. Ingen Housz
Title: Director Philips Corporate Treasury
Date: