EXHIBIT 10.2
AMENDED AND RESTATED LOAN AGREEMENT
AMENDED AND RESTATED LOAN AGREEMENT, dated as of August 13, 2002, among
FURMANITE LIMITED (formerly named FURMANITE PLC formerly named KANEB UK PLC), a
company incorporated under the laws of England and Wales (registered number
2530049) (the "Borrower"), FURMANITE WORLDWIDE, INC., a Delaware corporation
("Holding"), the financial institutions from time to time party hereto (each a
"Bank" and collectively, the "Banks") and BANK OF SCOTLAND, as agent for the
Banks (in such capacity, the "Agent").
W I T N E S S E T H :
WHEREAS, the Borrower, Holding, the Original Banks and the Agent are party
to an Amended and Restated Loan Agreement dated as of May 3, 1991 (as amended by
amendments thereto dated as of December 7, 1994, July 15, 1996, June 27, 1997,
December 15, 1997, December 22, 1997, March 31, 1999, November 10, 1999,
December 22, 2000, June 26, 2001, October 30, 2001 and March 18, 2002) (the
"Original Agreement");
WHEREAS, the Borrower and Holding have asked that the Original Agreement
(a) be amended (i) to remove the Term Loan Commitment (as defined in the
Original Agreement) and provide for a Revolving Credit Loan Commitment of no
more than $25,000,000, (ii) to extend the Commitment Period to the first
Business Day of January, 2009 and (iii) to make various other amendments to the
Original Agreement and, (b) as so amended, be restated in its entirety;
WHEREAS, subject to the terms and conditions set forth below, the Agent and
the Banks (including the Original Banks or their Bank Assignees) are willing to
so amend and restate the Original Agreement;
NOW, THEREFORE, the parties hereto hereby agree that from and after the
Amendment Effective Date, the Original Agreement is hereby amended and restated
to read in its entirety as set forth herein:
Section 1. DEFINITIONS.
Terms used in this Agreement which are defined in Annex I hereto shall have
the meanings specified in such Annex I (unless otherwise defined herein) and
shall include in the singular number the plural and in the plural number the
singular. Unless otherwise specified, each reference in this Agreement or in any
other Loan Document to a Loan Document shall mean such Loan Document as the same
may from time to time be amended, restated, supplemented or otherwise modified.
All references to Sections in this Agreement or in Annex I hereto shall be
deemed references to Sections in this Agreement unless otherwise specified. As
used in this Agreement and the other Loan Documents, the terms "including" and
"such as" are illustrative and not limitative.
Section 2. THE LOAN FACILITY.
2.1 The Loans.
(a) [intentionally deleted]
(b) Subject to the terms and conditions set forth herein, each Bank
severally agrees at any time and from time to time during the Commitment
Period to make loans to the Borrower (each a "Revolving Credit Loan" and
collectively, the "Revolving Credit Loans") up to its Revolving Credit Loan
Commitment; provided that, on the date of the making of any Revolving
Credit Loan (and after giving effect thereto), the aggregate principal
amount of Revolving Credit Loans outstanding on such date (plus the
aggregate amount (or Dollar Equivalent thereof) of all LC Obligations on
such date) shall not exceed the Total Revolving Credit Loan Commitment then
in effect. During the Commitment Period, the Borrower may utilize the
Revolving Credit Loan Commitments by borrowing, prepaying the Revolving
Credit Loans in whole or in part without premium or penalty (except as
otherwise provided by Section 3.11), and reborrowing, all in accordance
with the terms and conditions hereof. Revolving Credit Loans shall be made
from each Bank pro rata on the basis of the Revolving Credit Loan
Commitment of such Bank. Except as otherwise provided in this Agreement or
the Notes, the Borrower promises to pay to the Banks all outstanding
Revolving Credit Loans on January 1, 2009 together with accrued interest
thereon determined in accordance with the terms of this Agreement or the
Notes and as shown in records made in accordance with manual, computerized,
electronic or other record-keeping systems used from time to time by the
Banks.
(c) [intentionally deleted]
(d) [intentionally deleted]
(e) The amounts payable by the Borrower at any time hereunder and
under the Notes to each Bank shall be a separate and independent debt and
(subject to the provisions of Section 9) each Bank shall be entitled to
protect and enforce its rights arising out of this Agreement and its Notes
(or either of them), and it shall not be necessary for any other Bank or
the Agent to consent to, or be joined as an additional party in, any
proceedings for such purposes, it being understood (x) that no Bank (other
than the Agent) may seek to realize upon any security or Collateral nor
seek to enforce any Guarantee Agreement or other Security Document or the
obligations of any Person under any of the other Loan Documents without the
consent of the Required Banks and (y) that such rights and remedies may be
exercised by the Agent for the benefit of the Banks upon the terms of such
Loan Documents and this Agreement and (z) the Banks shall be entitled to
enforce their respective claims in respect of the Revolving Credit Loans
under this Agreement or the Notes and any defect, defence to
enforceability, limitation, imperfection or invalidity of the Notes shall
not impair or restrict the right of the Banks to enforce their respective
claims in respect of the Revolving Credit Loans under this Agreement or
affect the enforceability of this Agreement and the Borrower hereby
irrevocably and unconditionally agrees to indemnify and keep indemnified
the Banks against any loss or liability arising from any defect, defence to
enforceability, limitation, imperfection or invalidity of the Notes or any
unenforceability of this Agreement arising therefrom.
2.2 Notice of Borrowing.
(a) The Borrower shall give at least four Business Days' prior written
notice (a "Notice of Borrowing") to the Agent of the date (which shall be a
Business Day during the Commitment Period) of each proposed borrowing
hereunder (the "Borrowing Date"). Such notice shall specify (subject to the
provisions of this Agreement) (i) the Borrowing Date, (ii) the total amount
of the proposed borrowing, expressed in Dollars, which shall be in a
minimum amount of $500,000 if a Base Rate (US) Loan and $500,000 if a Libor
Loan (or, if greater, in integral multiples of $100,000 in each case)
provided that the aggregate principal amount of such borrowing must equal
or be less than the Unutilized Revolving Commitments (after giving effect
to all other Notices of Borrowings for Revolving Credit Loans and Issuance
Requests pending at such time) at such time, (iii) [intentionally deleted],
(iv) the Type of Loan which such borrowing will initially be, (v) whether
such Loan will be a Libor Loan or a Base Rate (US) Loan and, if a Libor
Loan, the requested Interest Period therefor, (vi) [intentionally deleted],
and (vii) [intentionally deleted]. Notwithstanding the foregoing, however,
Base Rate (US) Loans may be made upon two Business Days' telephone notice,
Closing Office Time, by the Borrower to the Agent (confirmed as soon as
possible thereafter in writing). Unless otherwise agreed to by the Agent
and the Borrower, the Notice of Borrowing for all Loans after the Closing
Date shall be substantially in the form of Exhibit A hereto.
(b) The Borrower may not designate more than one Interest Period for
Libor Loans or (unless otherwise consented to by the Agent) more than one
Type of Loan in the same Notice of Borrowing. Without the Agent's consent,
no Libor Loan shall be made or maintained if the principal amount thereof
is less than $500,000. Without the consent of the Agent, the Borrower shall
not be entitled to make borrowings under the Revolving Credit Loan
Commitments more than twice in any calendar week.
(c) On receipt of any Notice of Borrowing, the Agent shall promptly
notify (in writing or by telephone, confirmed as soon as possible
thereafter in writing) each Bank of the proposed details of, and the amount
of such Bank's share of, the Loan requested by such Notice of Borrowing.
(d) Each Loan requested in a Notice of Borrowing shall be made in
Dollars. If, with respect to any requested Libor Loan, the Agent receives
notice (a "Supervening Event Notice") from any Bank not later than 2:00
p.m., Closing Office Time, on the third Business Day before the proposed
Borrowing Date for such Loan, to the effect that (i) such Bank does not
expect to be able to fund its share of such Loan for the Interest Period
applicable thereto by obtaining a matching deposit in the London inter-bank
market at the relevant time or (ii) it would be impossible, unlawful or
contrary to any regulation, interpretation, order, directive or request
(whether or not having the force of law) applicable to such Bank of any
court or governmental authority, or any fiscal, monetary, central bank or
other authority having jurisdiction over such Bank for such Bank to make
the Libor Loan available to the Borrower, the Agent shall promptly notify
the Borrower and the other Banks of receipt of any such Supervening Event
Notice and the requested Loan subject to such Supervening Event Notice
shall instead be made as a Base Rate (US) Rate Loan.
(e) Each Bank will make the amount of its Loan or Loans available to
the Agent, at the Closing Office or as the Agent may otherwise direct,
before 10:00 a.m., Local Office Time, on the applicable Borrowing Date in
immediately available Dollars. Such proceeds shall be made available to the
Borrower (subject to Section 2.2(f)) by the Agent, in the same currency and
type of funds received by the Agent, at the Designated Office against
delivery to the Agent at the Closing Office for the account of each Bank of
such instruments, documents and papers as are provided for herein. The
Agent shall deliver the instruments, documents and papers received by it
for the account of each Bank to such Bank or upon its order.
(f) Unless the Agent shall have received notice from a Bank prior to
10:00 a.m., Closing Office Time, on the Business Day prior to the date of
any borrowing that such Bank will not make available to the Agent such
Bank's ratable portion of such borrowing as provided in Section 2.2(e), the
Agent may assume that such Bank has made such portion available to the
Agent in the required currency on the date of such borrowing in accordance
with subsection (e) of this Section 2.2 and the Agent may (but shall not be
obligated to), in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the extent such
Bank shall not have so made such ratable portion available to the Agent,
such Bank and the Borrower severally agree to repay to the Agent forthwith
on demand such corresponding amount together with interest thereon, for
each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Agent, at the rate from time to time
prevailing on the applicable Loan. If such Bank shall pay to the Agent such
corresponding amount, such amount so paid shall constitute such Bank's Loan
as part of such borrowing for purposes of this Agreement.
(g) Except for the Loans to be made on the Closing Date, the failure
of any Bank to make the Loan to be made by it as part of any borrowing
shall not relieve any other Bank of its obligation, if any, hereunder to
make its Loan on the date of such borrowing. No Bank shall be responsible
for the failure of any other Bank to make the Loan to be made by such other
Bank on the date of any borrowing.
2.3 The Notes.
(a) The Borrower's obligation to pay the principal of, and interest
on, the Revolving Credit Loans of each Bank shall be evidenced by a
promissory note of the Borrower payable to the order of such Bank
substantially in the form of Exhibit B hereto (as such note may be from
time to time be amended, supplemented, restated or otherwise modified, a
"Revolving Credit Note".
(b) The Revolving Credit Notes are entitled to the benefits of this
Agreement and shall be secured by the Security Documents.
(c) The principal amount of all Revolving Credit Loans of each Bank
outstanding from time to time, and interest accrued thereon, shall be
recorded on the records of such Bank and, prior to any transfer of, or any
action to collect, its Revolving Credit Note, the unpaid principal amount
of the Revolving Credit Loans evidenced thereby shall be endorsed on the
reverse side of such Revolving Credit Note, together with the date of such
endorsement and the date to which interest has been paid; any failure to
make such endorsement and provide such other information, however, shall
not affect the Borrower's obligations hereunder or under its Notes. The
Borrower's obligation to pay principal and interest in respect of each
Revolving Credit Note shall be limited to the unpaid principal amount of
the Revolving Credit Loans evidenced thereby and unpaid interest accrued
for the periods during which such Loans are outstanding.
(d) [intentionally deleted]
2.4 [intentionally deleted]
2.5 Mandatory Prepayments of Revolving Credit Loans.
(a) The Borrower shall prepay the Revolving Credit Loans on any day
and on the effective date of any reduction or termination in the Total
Revolving Credit Loan Commitment hereunder to the extent that the aggregate
principal amount of such Loans on such date shall exceed the amount equal
to (x) the amount of the Total Revolving Credit Loan Commitment in effect
on such date less (y) the Dollar Equivalent of the LC Obligations at such
time; if the Total Revolving Credit Loan Commitment is terminated in full,
then the Borrower shall immediately prepay in full the aggregate
outstanding principal amount of all Revolving Credit Loans. Repayments
pursuant to this Section shall first be made against (to the extent
available) outstanding Revolving Credit Loans which are Libor Loans having
an Interest Period ending on the date of such repayment, then to Base Rate
(US) Loans, as directed by the Borrower by written (or telephonic, promptly
confirmed in writing) notice to the Agent or, in the absence of such
direction, by the Agent.
(b) The then-unpaid principal amount of the Revolving Credit Loans
shall be payable in full on the first Business Day of January, 2009.
2.6 [intentionally deleted]
2.7 Voluntary Repayment of Revolving Credit Loans. The Borrower shall have
the right, at any time and from time to time, by four Business Days' prior
written notice to the Agent (which notice the Agent shall promptly transmit to
the Banks in writing or by telephone, confirmed as soon as possible thereafter
in writing) to prepay the Revolving Credit Loans, in whole, or in part in
integral multiples of $500,000 and without premium, provided that at the time of
any such prepayment of the Revolving Credit Loans in full, the Borrower shall
pay all interest accrued on the amount of such prepayment and all other amounts
owing to the Agent and the Banks in respect thereof including, without
limitation, any compensation payable under Section 3.11 hereof. Subject to the
terms and conditions of this Agreement, amounts prepaid under this Section 2.7
may be reborrowed.
2.8 Reduction of Commitments.
(a) The Borrower shall have the right at any time and from time to
time upon at least four Business Days' prior written notice to the Agent
(which notice the Agent shall promptly transmit to the Banks in writing or
by telephone, confirmed as soon as possible thereafter in writing) to
reduce permanently in amounts equal to $500,000 (and if greater, in
integral multiples thereof) or terminate the Total Revolving Credit Loan
Commitment (but not in an amount in excess of the Unutilized Revolving
Commitments at such time unless the provisions of Sections 2.5(a) and 2A.10
are complied with simultaneous with such reduction or termination). Any
reduction of the Total Revolving Credit Loan Commitment shall apply
proportionately to the Revolving Credit Loan Commitment of each Bank. Any
reduction or termination of a Commitment pursuant to this Section 2.8 shall
be accompanied by the payment in full of any Revolving Credit Loan
Commitment commission then accrued hereunder.
(b) [intentionally deleted]
2.9 [intentionally deleted]
SECTION 2A. LETTERS OF CREDIT.
2A.1. Requests.
(a) By delivering to the Issuer (with a copy to the Agent if Bank of
Scotland should at any time not be the Issuer hereunder) a written request
(an "Issuance Request") on or before 10:00 a.m. Closing Office Time on a
Business Day, the Borrower may request, from time to time during the
Commitment Period and on not less than five (unless the Agent and the
Issuer otherwise consent) nor more than ten Business Days' notice, that the
Issuer issue an irrevocable standby letter of credit in such form as shall
be acceptable to the Issuer and the Borrower (a "Letter of Credit"), in
support of such financial obligations of Holding or its Subsidiaries which
are described in such Issuance Request and are permitted by Section
2A.1(c). Each Issuance Request shall specify (i) the proposed date of
issuance (which shall be a Business Day during the Commitment Period), (ii)
the Stated Amount of the Letter of Credit, (iii) the expiration date of the
Letter of Credit, (iv) the name and address of the beneficiary of the
Letter of Credit, and (v) a precise description of the documents and have
attached the verbatim text of any certificate to be presented by the
beneficiary of such Letter of Credit which, if presented by such
beneficiary prior to the expiration date of the Letter of Credit, would
require the Issuer to make payment or accept drafts under the Letter of
Credit.
(b) Each Letter of Credit shall by its terms (unless otherwise
consented to by the Issuer):
(i) be issued for the account of the Borrower, and the Dollar
Equivalent of the Stated Amount of such Letter of Credit shall not
exceed the then effective Unutilized Revolving Commitments (after
giving effect to all Notice of Borrowings for Revolving Credit Loans
and other Issuance Requests pending at such time);
(ii) be stated to expire on a date (its "Stated Expiry Date") no
later than the earlier of (x) one year from its date of issuance or
(y) the last day of the Commitment Period; and, if renewable by its
terms, shall not be renewed so as to expire on a date later than the
earlier of (x) one year from the date of renewal or (y) the last day
of the Commitment Period;
(iii) on or prior to its Stated Expiry Date (A) terminate
immediately upon notice to the Issuer thereof from the beneficiary
thereunder that all obligations covered thereby have been terminated,
paid, or otherwise satisfied in full, and (B) reduce in part
immediately to the extent the beneficiary thereunder has notified the
Issuer that the obligations covered thereby have been paid or
otherwise satisfied in part; and
(iv) be denominated only in Dollars and any other currency
mutually agreed to (except for the ▇▇▇▇▇▇▇▇ ▇▇, which shall be
denominated in Sterling, the Norwegian LC, which shall be denominated
in NOK, and the Australian LC, which shall be denominated in AUD$).
(c) Letters of Credit may be issued to support lease obligations,
statutory obligations, performance and return-of-money bonds,
self-insurance and other similar obligations of Holding or its Subsidiaries
(including obligations of Holding and its Subsidiaries for the payment of
borrowed money) and to support the purchase by the Borrower of inventory
and any other purposes mutually agreed to.
(d) The ▇▇▇▇▇▇▇▇ ▇▇, Norwegian LC and Australian LC are Letters of
Credit for all purposes of this Agreement. The parties hereto further agree
that the Stated Expiry Date of the ▇▇▇▇▇▇▇▇ ▇▇ may (if the Issuer and the
Agent, at the Borrower's request, agree) be more than one year from its
date of issuance or renewal so long as, by its terms, it does not expire on
a date later than the last day of the Commitment Period.
(e) Notwithstanding the provisions of Section 2A.1(c), irrevocable
letter of credit No. SLC 01/11 dated July 24, 2001 for drawings up to
$138,000 issued by the Issuer in favor of American Guarantee and Liability
Insurance Company shall be a permitted Letter of Credit for all purposes of
this Agreement notwithstanding the fact that it has been issued to support
obligations of XANSER.
2A.2. Issuances and Extensions. Subject to the terms and conditions of this
Agreement (including without limitation Section 6A), the Issuer shall issue
Letters of Credit in accordance with the Issuance Requests made therefor. The
Issuer will make each Letter of Credit available to the beneficiary thereof in
accordance with the Issuance Request therefor. The Issuer shall not be liable to
any Bank with respect to any Letter of Credit if, at the time of such issuance,
it has not received from the Borrower, the Agent (if different from the Issuer)
or any Bank notice that any of the conditions for the issuance of such Letter of
Credit has not been satisfied. No Letter of Credit shall be issued unless the
terms and conditions thereof are satisfactory to the Issuer and the Borrower.
2A.3. Fees and Expenses.
(a) The Borrower agrees to pay to the Agent on the date of the
issuance of each Letter of Credit for distribution to the Banks (based on
the amounts that their respective Revolving Credit Loan Commitments bear to
the Total Revolving Credit Loan Commitment), including the Issuer, a letter
of credit fee with respect to such Letter of Credit equal to the LC
Percentage per annum of the Dollar Equivalent of the Stated Amount of such
Letter of Credit. For the purpose of determining the foregoing amount, the
tenor of such Letter of Credit shall be deemed equal to the maximum period
that such Letter of Credit may be outstanding (other than by renewal or
subsequent renewal, as the case may be, thereof) in accordance with its
terms. Each such fee shall be payable by the Borrower immediately prior to
the issuance of the Letter of Credit to which it relates; and payment of
each such fee shall be made in Dollars, computed at the Dollar Equivalent
of such fee on the date of the relevant Letter of Credit's issuance, except
with respect to the ▇▇▇▇▇▇▇▇ ▇▇, which shall be paid in Sterling (unless
the Borrower and the Required Banks agree otherwise at the time of any such
payment). In addition, the Borrower shall at the same time pay to the
Issuer (for its own account) an issuance fee of $500 for each Letter of
Credit issued. For purposes of this Section 2A.3, any renewal of a Letter
of Credit shall be treated as an issuance thereof. Notwithstanding the
foregoing, the letter of credit fee with respect to the ▇▇▇▇▇▇▇▇ ▇▇ (other
than the aforesaid $500 fee) may be paid by the Borrower quarterly in
advance, on the Closing Date and every three months thereafter, and (if so
paid) shall be based on the Stated Amount of the ▇▇▇▇▇▇▇▇ ▇▇ on the
quarterly date that such fee is required to be paid.]
(b) The fees referred to in Section 2A.3(a) shall be in addition to,
and not in lieu of, fees required to be paid by the Borrower pursuant to
Section 4 hereof.
(c) If any Regulatory Change shall at any time (i) impose, modify or
deem applicable any reserve, special deposit or similar requirement against
letters of credit issued by the Issuer or participated in by any Bank or
Bank Assignee, or (ii) subject letters of credit issued by the Issuer or
participations therein held by any Bank or Bank Assignee to any assessment
or other cost imposed by the Federal Deposit Insurance Corporation or any
successor thereto or (iii) impose on the Issuer or any Bank or Bank
Assignee any other or similar condition regarding any Letter of Credit, the
commitment or obligation of the Issuer to issue Letters of Credit hereunder
or any Bank's or Bank Assignee's participation therein and the result of
any event referred to in clause (i), (ii) or (iii) above shall be to
increase the cost to the Issuer or any Bank or Bank Assignee of agreeing to
issue, issuing or maintaining any Letter of Credit or its participation
therein by an amount which the Issuer or such Bank or Bank Assignee shall
deem to be material (which increase in cost shall be the result of the
reasonable allocation by the Issuer or such Bank or Bank Assignee of the
aggregate of such cost increases resulting from such events), then and in
each case upon demand from time to time by the Issuer or such Bank or Bank
Assignee (furnished to the Borrower by the Agent), the Borrower shall
promptly pay to the Agent (for the account of such Issuer, Bank or Bank
Assignee, as the case may be) additional amounts in Dollars or Sterling as
directed by the Agent which shall be sufficient to compensate the Issuer
(or such Bank or Bank Assignee) for such increased cost from the date of
such change, together with interest on each such amount, commencing three
Business Days from the date demanded by the Issuer (or such Bank or Bank
Assignee), until payment in full thereof (after as well as before judgment)
at a rate per annum equal to 1% plus (x) the Base Rate (UK) from time to
time in effect with respect to amounts payable in Sterling or (y) the Base
Rate (US) from time to time in effect with respect to amounts payable in
Dollars. A certificate of the Issuer (or such Bank or Bank Assignee)
submitted to the Borrower through the Agent as to any additional amount or
amounts (including calculations thereof, in reasonable detail) shall, in
the absence of manifest error, be conclusive and binding on the Borrower.
In determining such amount or amounts, the Issuer (or such Bank or Bank
Assignee) shall act in good faith and may use any reasonable method of
averaging and attribution as it shall deem applicable.
(d) The provisions of Section 2A.3(c) and the remaining Sections of
this Section 2A shall survive until one year after the later of (x) any
termination of this Agreement and (y) the payment in full of the Notes and
Loans.
2A.4. Disbursements.
(a) The Issuer will notify the Borrower and the Agent promptly of the
presentment of each demand for payment under any Letter of Credit together
with notice of the date (the "Disbursement Date") such payment shall be
made.
(b) Prior to 10:00 a.m., Local Office Time, on the Disbursement Date,
the Borrower will reimburse the Issuer by making payment to the Agent at
its Designated Office for all amounts disbursed or to be disbursed by the
Issuer on that day (the "Disbursement") under such Letter of Credit (the
"Reimbursement Obligation") in the same currency in which the Issuer made
or is to make disbursements under such Letter of Credit. At the Borrower's
option, but subject to the provisions of Sections 2 and 6A hereof, prior to
10:00 a.m. Closing Office Time on the Business Day before the Disbursement
Date, the Borrower may request in accordance with Section 2.2 (but without
regard to the last sentence of Section 2.2(b) or the requirement that the
borrowing be in a minimum amount of $500,000 or in an integral multiple of
$100,000 in excess of such amount) that Revolving Credit Loans in the
Dollar Equivalent of the Reimbursement Obligation be made and that the
proceeds of such Loans be used to so reimburse the Issuer. The proceeds of
any such Loans shall be applied to so reimburse the Issuer. To the extent
the Issuer is not reimbursed in full in accordance with the foregoing
provisions of this Section 2A.4(b), (x) the Borrower's Reimbursement
Obligation shall accrue interest (after as well as before judgment) at a
rate per annum equal to 4% plus the Base Rate (US) from time to time in
effect, payable on demand, and (y) the Issuer shall convert any such unpaid
Reimbursement Obligations which are not denominated in Dollars into a
Reimbursement Obligation payable in Dollars computed at the applicable Spot
Rate in effect at the time of such conversion. The Issuer shall promptly
furnish notice (in writing or by telephone, promptly confirmed in writing)
to the Borrower and the Agent (which notice the Agent shall promptly
furnish to the Banks) of any such conversion.
2A.5. Reimbursement. The Borrower's Reimbursement Obligation with respect
to each Disbursement (including interest thereon), and each Bank's obligations
under Section 2A.8 with respect thereto, shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim, or
defense to payment which the Borrower may have or have had against the Issuer,
any beneficiary, any Bank, the Agent or any Bank Assignee, including any defense
based upon the failure of any Disbursement to conform to the terms of the
applicable Letter of Credit or any application or misapplication by the
beneficiary of the proceeds of such Disbursement, or the legality, validity,
form, regularity, or enforceability of such Letter of Credit; provided, however,
that nothing herein shall adversely affect the right of the Borrower to commence
any proceeding against the Issuer for any wrongful Disbursement made by the
Issuer under a Letter of Credit as a result of acts or omissions constituting
gross negligence or willful misconduct on the part of the Issuer.
2A.6. Deemed Disbursements.
(a) Upon the occurrence of any Event of Default under Section 9.7
(with respect to the Borrower) and, at the option of the Agent acting on
instructions of the Required Banks, upon the occurrence and during the
continuance of any other Event of Default, an amount equal to the LC
Outstandings shall, without demand upon or notice to the Borrower, be
deemed to have been paid or disbursed by the Issuer (each, a "Deemed
Disbursement") under all outstanding Letters of Credit (notwithstanding
that such amount may not in fact have been so paid or disbursed) in the
respective currencies in which such Letters of Credit are denominated. Upon
notification by the Agent to the Borrower of its obligations under this
Section 2A.6 (no such notification being required in the case of an Event
of Default under Section 9.7 with respect to the Borrower), the Borrower
shall be immediately obligated to reimburse the aggregate amount of the
Deemed Disbursements (in the same currencies as comprising the Deemed
Disbursements) by paying the full amount thereof to the Agent for the
account of the Issuer prior to 10:00 a.m. Closing Office Time on the date
of such Deemed Disbursement and any amount not so reimbursed shall accrue
interest (after as well as before judgment) at a rate per annum equal to 1%
plus (x) the Base Rate (UK) from time to time in effect with respect to
Deemed Disbursements payable in Sterling, or (y) the Base Rate (US) from
time to time in effect with respect to Deemed Disbursements payable in
Dollars, in each case payable on demand. The Issuer shall convert any such
Deemed Disbursements which are not denominated in Dollars into a Deemed
Disbursement payable in Dollars computed at the applicable Spot Rate in
effect at the time of such conversion. All Deemed Disbursements reimbursed
by the Borrower pursuant to this Section 2A.6(a) shall be deposited into a
single special depository account of the Borrower (the "Deemed Disbursement
Account") maintained by the Borrower with, and under the control of, the
Agent (in New York or such other jurisdiction as the Agent and the Borrower
agree to) and titled appropriately so as to identify the nature of such
account. The Borrower shall take all such action, if any, as is necessary
to assure that the Agent has a perfected first priority security interest
in said account to the extent that such a security interest can be so
granted and perfected in the jurisdiction in which such account is held.
All of the Borrower's right, title and interest in and to all monies at any
time in the Deemed Disbursement Account (and all Disbursement Earnings, if
any, thereon) are hereby irrevocably pledged by the Borrower to the Agent
for the benefit of itself, the Issuer and the Banks as security to secure
the prompt payment to the Agent, the Issuer and the Banks of all the
Borrower's liabilities to the Agent, the Issuer and the Banks and to secure
the performance by the Borrower of its obligations under this Agreement;
and such amounts may be applied to such liabilities in such order as the
Agent may direct without notice to, or the consent of the Borrower. The
Borrower shall be entitled to receive monies from the Deemed Disbursement
Account only as permitted by Section 2A.6(b). The Agent shall invest the
monies in the Deemed Disbursement Account in such types of investments as
are agreed to by the Borrower and the Agent.
(b) If any such Letter of Credit shall thereafter terminate without
the Issuer being required to pay the full amount of the Deemed Disbursement
with respect to such Letter of Credit to the beneficiary thereunder, then
(unless the Loans have matured, by acceleration or otherwise, or the
Borrower has failed to pay any amount then due and payable by it under this
Agreement) the Agent will return to the Borrower an amount equal to that
portion of the Deemed Disbursement with respect to such terminated Letter
of Credit not theretofore applied by the Agent to any Reimbursement
Obligation with respect to such Letter of Credit or applied by the Agent in
payment of the Notes or any other obligation of the Borrower under this
Agreement or any of the Loan Documents. At such time when all Events of
Default shall have been cured or waived, the Agent shall return to the
Borrower all amounts then on deposit in the Deemed Disbursement Account.
Any amounts required to be returned by the Agent pursuant to this Section
2A.6 shall be made in the same currency in which such deposit was made or
as the Borrower and the Agent otherwise agree.
2A.7. Nature of Reimbursement Obligations. The Borrower shall assume all
risks of the acts, omissions, or misuse of any Letter of Credit by the
beneficiary thereof. Neither the Issuer (except to the extent of its own gross
negligence or willful misconduct), the Agent nor any Bank shall be responsible
for:
(a) the form, validity, sufficiency, accuracy, genuineness, or legal
effect of any Letter of Credit or of any draft, demand or other document,
instrument or other paper relating to, or presented under, any Letter of
Credit, or any document submitted by any party in connection with the
application for and issuance of a Letter of Credit, even if it should in
fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent, or forged;
(b) the form, validity, sufficiency, accuracy, genuineness, or legal
effect of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder
or proceeds thereof in whole or in part, which may prove to be invalid or
ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions, or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex, telecopier or
otherwise; or
(e) any loss or delay in the transmission or otherwise of any document
or draft required in order to make a Disbursement under a Letter of Credit
or of the proceeds thereof.
None of the foregoing shall affect, impair, or prevent the vesting of
any of the rights or powers granted the Issuer, the Agent or the Banks
hereunder. In furtherance and extension and not in limitation or derogation
of any of the foregoing, any action taken or omitted to be taken by the
Issuer in good faith shall be binding upon the Borrower, the Agent, the
Banks and each Bank Assignee hereunder and shall not put the Issuer, the
Agent or any Bank or Bank Assignee under any resulting liability to the
Borrower nor put the Issuer under any resulting liability to the Agent or
any Bank or Bank Assignee. Nothing herein shall constitute a waiver by the
Borrower of any of its rights against any beneficiary of a Letter of
Credit.
2A.8 Other Banks' Participation. Effective upon the issuance of each Letter
of Credit and without further action, each Letter of Credit shall be deemed to
be issued (and to have been issued, if already issued) on behalf of all Banks
(including the Issuer) pro rata based on their respective Revolving Credit Loan
Commitments and each Bank shall be deemed to have irrevocably purchased from the
Issuer a participation in such Letter of Credit equal to such Bank's pro rata
share (based on their respective Revolving Credit Loan Commitments) of the
Stated Amount. Each Bank shall, to the extent of such pro rata share, promptly
reimburse the Issuer (by payment to the Agent at its Designated Office for the
account of the Issuer) for any Reimbursement Obligation which has not been
promptly reimbursed by the Borrower in accordance with Section 2A.4(b) (and,
after such reimbursement, shall be entitled to receive its pro rata share of any
payments received by the Issuer or the Agent for the account of the Issuer with
respect to the principal of, and interest on such Reimbursement Obligation);
such reimbursements by the Banks shall be made in the same currency in which the
Issuer made or is to make disbursements under the applicable Letter of Credit.
Promptly after issuance of each Letter of Credit, the Issuer (or the Agent upon
the request of the Issuer) shall in writing notify the Agent and each Bank with
a Revolving Credit Loan Commitment of the initial Stated Amount of such Letter
of Credit, the date that it was issued and its Stated Expiry Date, but the
failure to give such a notice shall not affect the obligations of the Banks with
respect to such Letter of Credit.
2A.9 Indemnification. To the extent the Issuer is not reimbursed or
indemnified by the Borrower, the Banks will reimburse and/or indemnify the
Issuer, in Dollars, in proportion to their respective Revolving Credit Loan
Commitments (or if the Revolving Credit Loan Commitments are terminated,
Revolving Credit Loans outstanding or their participations in the Letters of
Credit) under this Agreement, for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred or sustained by or asserted against the Issuer, acting pursuant to
this Section 2A or pursuant to any Letter of Credit, in any way relating to or
arising out of any of the foregoing; provided, however, that no Bank shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Issuer's gross negligence or wilful misconduct. The obligations of the
Banks under this Section 2A.9 shall survive the payment in full of the Loans,
the expiration and termination of all Letters of Credit, the payment of all
Reimbursement Obligations and any termination of this Agreement.
2A.10 Collateralization. If, at any time (after giving effect to the
provisions of Section 2.5(a), if applicable, at such time) when no Revolving
Credit Loans are outstanding, the aggregate Dollar Equivalent of the LC
Obligations exceeds the amount of the Total Revolving Credit Loan Commitment
then in effect, the Borrower shall (if the Agent so requests) deposit in a cash
collateral account with the Agent, on terms and conditions satisfactory to the
Agent and as security for the Obligations, an amount in Dollars (and, to the
extent requested by the Agent when the ▇▇▇▇▇▇▇▇ ▇▇ is outstanding, in Sterling)
equal to the amount of such excess.
Section 3. INTEREST.
3.1 Rate of Interest. The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Loan from time to time outstanding from the date
the proceeds thereof are made available to the Borrower until maturity (whether
by acceleration or otherwise) at the following interest rates: (i) each Libor
Loan, at a rate per annum for each Interest Period applicable thereto equal to
(x) LIBOR for such Interest Period plus (y) the Eurocurrency Differential, and
(ii) each Base Rate (US) Loan, at a rate per annum equal to (x) the Base Rate
(US), such rate to change as and when such Base Rate (US) changes, plus (y) the
Base Rate (US) Differential.
3.2 Interest Payment Dates. Interest on and prior to maturity in respect of
each Loan shall be payable in arrears (i) if such Loan is (x) a Libor Loan, on
the last day of each Interest Period applicable thereto and, if such Interest
Period is longer than three months, at the end of each three-month interval
within such Interest Period or (y) a Base Rate (US) Loan, on the last Business
Day of each calendar quarter after the making thereof and on the last day of any
Interest Period applicable thereto, (ii) upon any prepayment or repayment of
such Loan in full (to the extent accrued on the amount prepaid or repaid) and
(iii) at maturity (whether by acceleration or otherwise). The Agent shall
endeavor to notify the Borrower prior to each such interest payment date of the
amount to be paid by the Borrower on such date, but no failure by the Agent to
do so shall in any way affect the Borrower's obligations hereunder to timely pay
the full amount of interest due when due; however, no such amount paid in
reliance on such a notice, or paid in accordance with the Borrower's good faith
calculations in the absence of such a notice, shall constitute an Event of
Default under Section 9.1 unless the Borrower shall fail to timely pay the full
amount of any further adjustment as may be appropriate pursuant to notice to the
Borrower from the Agent.
3.3 Overdue Payment of Principal and Interest. Overdue principal of, and
overdue interest in respect of, each Loan shall bear interest for each day,
payable on demand, at a rate per annum (the "Past-Due Rate") equal to 2% per
annum in excess of the interest rate otherwise applicable to such Loan (up to
the end of the then-current Interest Period therefor, or any subsequent interest
period therefor selected by the Agent, that is applicable to such Loan).
3.4 Interest Periods. For purposes of this Agreement the term "Interest
Period" shall mean:
(a) with respect to any Libor Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Loan and
ending one, three, six or nine months thereafter, as selected by the
Borrower in its Notice of Borrowing or Notice of Conversion, as the
case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Loan and ending one,
three, six or nine months thereafter, as selected by the Borrower by
irrevocable notice (each an "Interest Period Notice") to the Agent not
later than 10:00 a.m., Closing Office Time, four Business Days prior
to the last day of the then current Interest Period with respect
thereto;
provided that, all of the foregoing provisions relating to Interest
Periods for Libor Loans are subject to the following:
(1) if any Interest Period pertaining to a Libor Loan would
otherwise end on a day that is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business
Day;
(2) any Interest Period that would otherwise extend beyond
the date final payment is due on the Libor Loan shall end on such
date of final payment;
(3) any Interest Period pertaining to a Libor Loan that
begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month;
(4) the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Libor Loan during an
Interest Period for such Loan;
(5) in the absence of timely selection by the Borrower of an
Interest Period for a Libor Loan, the Interest Period shall be
one month (subject to the other terms of this proviso); and
(6) the Borrower shall select Interest Periods in order to
comply with the provisions of Section 2.2(b); and
(b) with respect to any Base Rate (US) Loan, the period commencing on
the borrowing or conversion date, as the case may be, with respect to such
Loan and ending on the first to occur of the maturity date (whether by
acceleration or otherwise) of such Loan or the conversion date with respect
to such Loan.
3.5 Conversion.
(a) The Borrower shall have the option to convert (i) at any time, all
or a portion of any Base Rate (US) Loan into a Libor Loan, (ii)
[intentionally deleted], (iii) on the last day of an Interest Period
applicable thereto, a Libor Loan into a Base Rate (US) Loan or (iv)
[intentionally deleted]; provided, however, (x) without the consent of the
Agent or the Required Banks, no portion of the outstanding principal amount
of any Base Rate (US) Loan may be converted into a Libor Loan during the
continuance of any Default or Event of Default and (y) no Loan may be
converted under this Section 3.5(a) unless the provisions of the
next-to-last sentence of Section 2.2(b) are complied with after giving
effect to such conversion.
(b) The Borrower shall exercise the option granted pursuant to Section
3.5(a) by giving, no later than 10:00 a.m., Closing Office Time, on the
fourth Business Day prior to the proposed conversion date, written or
telephonic notice (confirmed in writing) thereof (a "Notice of Conversion")
to the Agent (the details of which notice the Agent shall promptly deliver
in writing, or by telephone, promptly confirmed in writing to each Bank).
Each Notice of Conversion shall state (i) the option to be exercised
pursuant to Section 3.5(a), the requested conversion date which shall be a
Business Day and which in the case of the conversion of any Base Rate (US)
Loan shall be deemed the last day of the Interest Period applicable thereto
and (ii) in the case of a conversion into a Libor Loan, the requested
Interest Period therefor. Unless otherwise agreed to by the Agent and the
Borrower, the Notice of Conversion shall be substantially in the form of
Exhibit C hereto.
(c) Any Libor Loan may be continued as such upon the expiration of the
then current Interest Period with respect thereto by the Borrower giving an
Interest Period Notice to the Agent, in accordance with Section 3.4,
setting forth the length of the next Interest Period to be applicable to
such Loan, provided that no Libor Loan may be continued as such (i) when
any Default or Event of Default has occurred and is continuing and the
Agent or the Required Banks have determined that such a continuation is not
appropriate, (ii) if, after giving effect thereto, Section 2.2(b) would be
contravened or (iii) after the date that is one month prior to the end of
the Commitment period (in the case of continuations of Revolving Credit
Loans) and provided, further, that if such continuation is not permitted
pursuant to the preceding proviso such Loans shall be automatically
converted to Base Rate (US) Loans on the last day of such then expiring
Interest Period.
3.6 Automatic Conversion. If, on or prior to a Eurocurrency Interest
Determination Date for a Libor Loan (and no Notice of Conversion shall have been
received with respect to such Loan to be effective at the end of the current
Interest Period therefor), the Agent shall have received a Supervening Event
Notice or shall itself have determined that one of the events described in
Section 2.2(d) has occurred which would make it impossible, unlawful or
impracticable to continue such Loan for another Interest Period, the Agent shall
promptly notify (in writing or by telephone, promptly confirmed in writing) the
Borrower and the Banks thereof and such Loan shall at the end of the current
Interest Period therefor be converted into a Base Rate (US) Loan (if permitted
by the other provisions of the Agreement).
3.7 Capital Adequacy; Qualification Requirements.
(a) If any Bank (such term, for purposes of this Section 3.7, to
include the Issuer) shall have determined that the applicability after the
date hereof of any law, rule, regulation or guideline adopted pursuant to
or arising out of the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled "International Convergence
of Capital Measurement and Capital Standards", or the adoption after the
date hereof of any other law, rule, regulation or guideline regarding
capital adequacy, or any change in any of the foregoing or in the
enforcement or interpretation or administration of any of the foregoing by
any court or any governmental authority, central bank or comparable agency
charged with the enforcement or interpretation or administration thereof,
or compliance by any Bank (or any lending office of any Bank) or any
holding company of any Bank with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing
the rate of return on such Bank's capital or on the capital of such Bank's
holding company, if any, as a consequence of its obligations hereunder to a
level below that which such Bank or such Bank's holding company could have
achieved but for such applicability, adoption, change or compliance (taking
into consideration such Bank's policies and the policies of such Bank's
holding company with respect to capital adequacy) by an amount reasonably
deemed by such Bank to be material, then, upon demand by such Bank, the
Borrower shall pay to such Bank from time to time such additional amount or
amounts as will compensate such Bank or such Bank's holding company (as
determined by such Bank in good faith) for any such reduction suffered as a
consequence of such Bank's obligations hereunder, together with interest on
each such amount (commencing three Business Days from the date demanded)
until payment in full thereof at the Base Rate (US). A certificate of such
Bank submitted to the Borrower as to any such additional amount or amounts
(including calculations thereof in reasonable detail) shall, in the absence
of manifest error, be conclusive and binding on the Borrower. In
determining such amount or amounts, such Bank may use any reasonable method
of averaging and attribution as it shall deem applicable.
(b) If any Bank shall have determined that the applicability of any
Qualification Requirement, or any Regulatory Change or change in any
Qualification Requirement or in the enforcement or interpretation or
administration of any Qualification Requirement by any Governmental
Authority charged with the enforcement or interpretation or administration
thereof, has or would have the effect of reducing the rate of return on
such Bank's capital or on the capital of such Bank's holding company, if
any, as a consequence of its obligations hereunder to a level below that
which such Bank or such Bank's holding company could have achieved but for
such applicability, adoption, change or compliance by an amount reasonably
deemed by such Bank to be material, then, upon demand by such Bank, the
Borrower shall pay to such Bank from time to time such additional amount or
amounts as will compensate such Bank or such Bank's holding company (as
determined by such Bank in good faith) for any such reduction suffered as a
consequence of such Bank's obligations hereunder, together with interest on
each such amount (commencing three Business Days from the date demanded)
until payment in full thereof at the Base Rate (US). A certificate of such
Bank submitted to the Borrower as to any such additional amount or amounts
(including calculations thereof in reasonable detail) shall, in the absence
of manifest error, be conclusive and binding on the Borrower. In
determining such amount or amounts, such Bank may use any reasonable method
of averaging and attribution as it shall deem applicable. "Qualification
Requirement" shall mean any legal requirement that solely by reason of (and
without regard to any other activities of such Bank in any jurisdiction in
which Collateral is located) the entering into, performance and enforcement
of this Agreement and the other Loan Documents by such Bank constitutes
"doing business" by such Bank in any jurisdiction, imposes on such Bank any
liability for taxes or other governmental charges, requires qualification
by such Bank to do business in any jurisdiction or requires a "business
activity," "doing business" or similar report or notice to be filed by such
Bank in any jurisdiction.
(c) No demand for compensation under this Section 3.7 shall be made by
any Bank unless such Bank is making similar demands upon similarly situated
borrowers.
3.8 Determination of Rate of Borrowing
(a) As soon as practicable after 11:00 a.m., Closing Office Time, on
each Eurocurrency Interest Determination Date for a Libor Loan, the Agent
shall determine (which determination shall, absent manifest error, be
final, conclusive and binding upon all parties) LIBOR to be applicable to
such Libor Loan for the next succeeding Interest Period therefor and shall
promptly give notice thereof in writing or by telephone (confirmed in
writing) to the Borrower and the Banks.
(b) Notwithstanding the foregoing, in the event that prior to the
first day of any Interest Period for a Libor Loan:
(i) the Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the LIBOR for such Interest
Period, or
(ii) the Agent shall have received notice from the Required Banks
that LIBOR determined or to be determined for such Interest Period
will not adequately and fairly reflect the cost to such Banks (as
conclusively certified by such Banks) of making or maintaining their
affected Loans during such Interest Period,
the Agent shall give written or telephonic (promptly confirmed in writing)
notice thereof to the Borrower and the Banks as soon as practicable
thereafter. If such notice is given (x) any Libor Loans requested to be
made on the first day of such Interest Period shall be made as Base Rate
(US) Loans, (y) any Loans that were to have been converted on the first day
of such Interest Period to Libor Loans shall be converted to or continued
as Base Rate (US) Loans, and (z) any outstanding Libor Loans shall be
converted, on the first day of such Interest Period, to Base Rate (US)
Loans. No further Libor Loans shall be made or continued as such, nor shall
the Borrower have the right to convert Base Rate (US) Loans to Libor Loans
until the circumstances causing such suspension no longer exists.
3.9 Requirements of Law.
(a) If any Bank shall have reasonably determined (which determination
shall be final and conclusive and binding upon all parties) that by reason
of (x) the requirements of Regulation D of the Board of the Governors of
the Federal Reserve System or (y) any Regulatory Change after the date
hereof or (z) other circumstances affecting such Bank (such as for example
but not limited to a change in official reserve requirements or increased
capital reserves required or imposed by any regulatory authority or entity
(domestic or foreign) having jurisdiction over or with respect to such Bank
or any change in the basis of taxation of payments to such Bank of
principal or interest on any Libor Loan (other than taxes covered by
Section 5.2 or taxes on such Bank's overall income by the jurisdiction
where such Bank's principal or lending office or offices are located) to
the extent not provided for in clause (x) above), such Bank shall incur
increased costs or reductions in the amounts received or receivable
hereunder in respect of any Libor Loan, then, and in any such event, the
Bank so affected shall promptly give notice in writing or by telephone
(confirmed in writing) to the Borrower (with a copy to the Agent if given
by a Bank other than the Agent) of such determination. Thereafter, the
Borrower shall pay to such Bank, upon written demand therefor, such
additional amounts (which may be in the form of an increased rate of, or a
different method of calculating, interest if the Borrower and the Bank so
agree) as shall be sufficient to compensate such Bank for such increased
cost or reduction in amounts received or receivable, provided that in the
case of any such determination pursuant to clause (x) with respect to any
Libor Loan, the written notice from the Bank to the Borrower shall specify
the additional amount required to be paid with respect to such Loan (with
such amount so stated to be final with respect to each Interest Period
therefor until notice is received by the Borrower and the Agent from such
Bank that the condition giving rise to such determination is no longer
applicable) and such additional amount shall be paid at the same time, and
together with, the interest otherwise payable in respect of such Libor
Loans for such affected Interest Periods. Each such notice or demand shall,
absent manifest error, be final and conclusive and binding upon all of the
parties hereto; provided that before giving any such notice or making any
such demand, each Bank agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions and so long as
such efforts would not be disadvantageous to it, in its reasonable
discretion, in any legal, economic or regulatory manner) to designate a
different lending office if the making of such designation would avoid the
need for, or materially reduce the amount of, such increased cost.
(b) In the case of any Bank affected by subsection 3.9(a), other than
clause (x) thereof (any such Bank, together with any Bank affected by
subsection 3.10, an "Affected Bank"), the Borrower may (subject to the
other provisions of this Agreement) exercise any one of the following
options if the exercise of such option shall eliminate the need to pay
compensation to the Affected Bank pursuant to Section 3.9(a):
(i) If such determination by the Affected Bank relates only to
Libor Loans then being requested by the Borrower pursuant to a Notice
of Borrowing or a Notice of Conversion, the Borrower may, prior to the
date on which such Libor Loans are to be made or converted, by giving
notice in writing or by telephone (confirmed in writing) to the Agent
and the Banks, withdraw such Notice of Borrowing or such Notice of
Conversion for all Banks.
(ii) Upon written notice to the Agent and the Banks, the Borrower
may terminate the obligation of the Banks to make or maintain Loans
as, or convert Loans into, Libor Loans and, in such event, the
Borrower shall on the first day of the next occurring Interest Period
applicable thereto convert all Libor Loans into Base Rate (US) Loans
in the manner contemplated by Section 3.5 but without satisfying the
notice requirements therein.
(iii) The Borrower may, by giving notice in writing or by
telephone (confirmed in writing) to the Affected Bank, the Agent and
the other Banks, require the Affected Bank to make the Libor Loan then
being requested as a Base Rate (US) Loan, or to continue to maintain
its outstanding Base Rate (US) Loan then the subject of a Notice of
Conversion as a Base Rate (US) Loan, as the case may be, or to convert
each Libor Loan then outstanding that is so affected into a Base Rate
(US) Loan on the first day of the next occurring Interest Period
applicable thereto, or within such earlier period, as is required by
law, such notice to pertain only to the Loans of the Affected Bank and
to have no effect on the obligations of the other Banks to make or
maintain such Libor Loans or to convert Loans into such Libor Loans.
3.10 Required Termination and Prepayment. In the event that at any time any
Affected Bank shall have reasonably determined (which determination shall be
final and conclusive and binding upon all parties) that the making or
continuation of any of its Libor Loans has become unlawful by compliance by the
Affected Bank in good faith with any law, governmental rule, regulation,
guideline or order (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful), the Affected Bank shall promptly
give notice in writing or by telephone (confirmed in writing) to the Agent and
the Borrower of such determination; provided that before giving any such notice,
each Bank agrees to use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions and so long as such efforts would not be
disadvantageous to it, in its reasonable discretion, in any legal, economic or
regulatory manner) to designate a different lending office if the making of such
a designation would allow the Bank to continue to perform its obligations to
make Libor Loans affected by such determination. Upon receiving such
notification, the Borrower shall (subject to the other provisions of this
Agreement) forthwith take one of the actions specified in Section 3.9(b) (to the
extent required to cure such condition). If the Borrower has not exercised one
of the options specified in Section 3.9(b) within the time periods therein
prescribed, the Borrower shall be deemed to have exercised the option set forth
in clause (iii) of Section 3.9(b) (requiring the making, continuance or
conversion into Base Rate (US) Loans) and to have given the notice specified
therein. If any such conversion of a Libor Loan occurs on a day which is not the
last day of the then current Interest Period with respect thereto, the Borrower
shall pay to the Affected Bank such amounts, if any, as may be required pursuant
to Section 3.11. If circumstances subsequently change so that the Affected Bank
shall determine that it is no longer so affected, such Bank will promptly notify
the Borrower and the Agent, and upon receipt of such notice, the obligations of
such Bank to make or continue such Libor Loans or to convert Loans into such
Libor Loans shall be reinstated.
3.11 Compensation. The Borrower shall compensate each Bank, upon written
request by such Bank made through the Agent (which request shall, absent
manifest error, be final and conclusive and binding upon all parties), for all
reasonable losses, expenses and liabilities (including, without limitation, any
interest paid by such Bank to lenders of funds borrowed by it to make or carry
its Libor Loans and any reasonable loss (including any loss of margin) sustained
by such Bank in connection with the liquidation or re-employment of such funds),
which such Bank may sustain: (i) if for any reason (other than a default by such
Bank) a borrowing or conversion of any Libor Loan does not occur on a date
specified therefor in a Notice of Borrowing or a Notice of Conversion (whether
or not withdrawn), (ii) if any prepayment, repayment or conversion of any of its
Libor Loans occurs on a date which is not the last day of the Interest Period
applicable thereto, (iii) if any prepayment of any of its Libor Loans is not
made on any date specified in a notice of prepayment given by the Borrower, or
(iv) as a consequence of any default by the Borrower hereunder.
Section 3A. CURRENCIES.
3A.1 Amount of Currency to be Made Available. Amounts to be made available
by each Bank in response to a Notice of Borrowing, Notice of Conversion or
conversion pursuant to Section 3.5, 3.9 or 3.10 shall be made in Dollars and be
based upon such Bank's pro rata portion (based upon its applicable Commitment or
its portion of the Loan to be converted, as the case may be) of the principal
amount of the relevant Loan.
3A.2 Adjusting Payments. If on any given date the Banks are making Loans to
the Borrower in the same currency that the Borrower is, on such date, repaying
Loans to the Banks, then, for administrative convenience, the Agent and the
Borrower may by mutual consent net out the two amounts so that only the
difference (if any) need be actually transferred. For all other purposes, the
two transactions shall be deemed separate borrowings and repayments except as
specifically stated otherwise in this Agreement.
3A.3 Locations of Payment. On each date on which any amount is to be paid
by the Borrower to the Agent or any Bank hereunder, the Borrower shall make that
amount available to the Agent, in Dollars (except to the extent that another
currency is otherwise specified therefor elsewhere in this Agreement, including
without limitation in Sections 2A.3(a) and 2A.4(b)), to the account of such
office of the Agent or such Bank in the US or the UK or the Cayman Islands as
the Agent may specify; provided that payments in Sterling shall (unless the
Agent and Borrower otherwise agree) be made to the Agent's account at a branch
of the Agent in the UK.
3A.4 Computations. The principal amount of each Loan shall be recorded on
the books of the Agent, and, in the absence of manifest error, such records
shall be rebuttable presumptive evidence thereof.
3A.5 Necessary Actions. Without limiting the obligations of the Borrower
hereunder (including its obligation to make payments in Sterling where
specified), the Agent is hereby authorized to convert funds received by it in a
particular currency in which payment is due in such manner and on such terms as
the Agent may, in good faith, deem appropriate.
3A.6 Excess Outstandings. The Agent may, from time to time on the last day
of any Interest Period, but in any case not more than once a calendar quarter
under this Section 3A.6, calculate the aggregate amount of all Revolving Credit
Loans outstanding plus all LC Obligations (said aggregate amount, the "Aggregate
Outstanding Amount"). If the Agent determines that due to a fluctuation in
exchange rates, the Dollar Equivalent of the Aggregate Outstanding Amount
exceeds the Total Revolving Credit Loan Commitment, then the Agent may so notify
the Borrower and the Borrower shall promptly pay to the Agent on behalf of the
Banks the amount which the Agent specifies is required to eliminate or reduce
any such excess; any such payments shall be treated as repayments of Revolving
Credit Loans to the extent Revolving Credit Loans are then outstanding. In the
event that there are no Revolving Credit Loans outstanding to do so (or the
amount thereof is insufficient), the Borrower shall (if the Agent so requests)
deposit in a cash collateral account with the Agent, on terms and conditions
satisfactory to the Agent and as security for the Obligations, an amount in
Dollars (and, to the extent requested by the Agent when the ▇▇▇▇▇▇▇▇ ▇▇ is
outstanding, in Sterling) equal to the amount of such deficiency.
Section 4. COMMITMENT COMMISSION, ETC.
4.1 Commitment Commission. The Borrower agrees to pay to the Agent for the
account of each Bank a Commitment commission with respect to its Revolving
Credit Loan Commitment for the period commencing on the Amendment Effective
Date, to and including the date on which the Revolving Credit Loan Commitments
of the Banks have been permanently terminated in full, computed at a rate per
annum equal to the Commitment Fee Percentage on the average daily Unutilized
Revolving Commitment of such Bank (computed in Dollars) during the period for
which payment is made. For the purposes of the preceding sentence, issuance of
Letters of Credit shall be deemed to be a utilization of the Banks' respective
Revolving Credit Loan Commitments in an amount equal to LC Outstandings, pro
rata as to each Bank based on the amount that its Revolving Credit Loan
Commitment bears to the Total Revolving Credit Loan Commitment. Such Commitment
commission shall be payable quarterly in arrears on the last Business Day of
each calendar quarter and on the date upon which the Revolving Credit Loan
Commitments shall be permanently terminated. The Agent shall endeavor to notify
the Borrower prior to the end of each such calendar quarter of the amount to be
paid by the Borrower at the end of such quarter, but no failure by the Agent to
do so shall in any way affect the Borrower's obligations hereunder to timely pay
the full amount due when due; however, no such amount paid in reliance on such a
notice, or paid in accordance with the Borrower's good faith calculations in the
absence of such a notice, shall constitute an Event of Default under Section 9.1
unless the Borrower shall fail to timely pay the full amount of any further
adjustment as may be appropriate pursuant to notice to the Borrower from the
Agent.
4.2 Agent's Fees. The Borrower agrees to pay to the Agent for its own
account (the "Agent's Fees") a non-refundable annual management fee of $30,000
per year, commencing on May 3, 2003 and payable on or before May 3rd of each
succeeding year thereafter. The Borrower's obligations to pay these fees (and
those set forth in Section 4.3 below) are obligations of the Borrower under this
Agreement and are secured by the Security Documents and entitled to the benefits
of the Guarantee Agreements.
4.3 Facility Fee. The Borrower agrees to pay to the Agent, for and on
behalf of the Banks that are party to this Agreement on the Closing Date, a
non-refundable facility fee of $250,000, $50,000 of which has been previously
paid and the balance of which shall be payable on the Closing Date.
4.4 Currency. Fees and commissions payable pursuant to this Section 4 shall
(unless specified otherwise elsewhere in this Agreement) be paid by the Borrower
in freely transferable Dollars.
4.5 Accrued Commitment Commission; Accrued Interest.
(a) Any Commitment commission accrued but unpaid immediately prior to
the Amendment Effective Date (based on the amount of the Total Revolving
Credit Loan Commitment under the Original Agreement) shall be paid on the
first regularly scheduled date for the payment of Commitment commissions to
occur after the Amendment Effective Date.
(b) Any interest accrued but unpaid immediately prior to the Amendment
Effective Date in respect of the promissory notes that were issued pursuant
to the Original Agreement shall be paid on the first regularly-scheduled
date for the payment of interest to occur after the Amendment Effective
Date.
Section 5. PAYMENTS, ETC.
5.1 Currency, Payments on Non-Business Days; Calculations.
(a) Dollars are the currency of account for each and every sum due
from the Borrower hereunder and under the other Loan Documents; provided
that:
(i) each payment in respect of costs and expenses shall be paid
in the currency in which the same are invoiced; and
(ii) payments required to be made in a currency other than
Dollars shall be made in such currency unless the Agent and the
Borrower agree, as to any such payment, that it shall be made in
Dollars.
(b) Whenever any payment to be made hereunder or otherwise in
connection with any Loan shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and interest shall be payable at the applicable rate during
such extension. Interest hereunder (including, without limitation, interest
on the Loans) and under the Loan Documents (other than any interest on the
Deemed Disbursement Account) and Commitment commissions shall be calculated
on the basis of a 360 day year and the actual number of days elapsed; if
for any reason a Loan is repaid on the same day on which it is made, one
day's interest (subject to the other provisions of this Agreement) shall be
paid on that Loan.
5.2 Net Payments; Application.
(a) All payments hereunder and under the other Loan Documents
(including, without limitation, prepayments and repayments pursuant to
Section 2) shall be made by the Borrower to the Agent or the Issuer, as the
case may be, in immediately available, freely transferable, freely
convertible same day Dollars (except if and to the extent provided
otherwise by this Agreement) at the Closing Office (or as otherwise
provided in Section 3A.3) without setoff or counterclaim and in such
amounts as may be necessary in order that all such payments (after (i)
withholding for or on account of any present or future taxes, levies,
imposts, duties or other similar charges of whatsoever nature imposed on
the amounts described above by any government or any political subdivision
or taxing authority thereof, other than any tax (other than such taxes
referred to in clause (ii) below) imposed on a Bank pursuant to the income
tax laws of the jurisdiction where such Bank's principal or lending office
or offices are located (collectively, the "Taxes") and (ii) deduction of an
amount equal to any taxes on or measured by the net income payable to such
Bank with respect to the amount by which the payments required to be made
by this Section 5.2 exceed the amount otherwise specified to be paid under
this Agreement and the Notes) shall not be less than the amounts otherwise
specified to be paid under this Agreement and the Notes. With respect to
each such deduction or withholding, the Borrower shall promptly (and in no
event later than 30 days thereafter) furnish to the Agent such
certificates, receipts and other documents as may be required to establish
any tax credit, exemption or reduction in rate to which any Bank or holder
of a Note may be entitled. Each Bank, other than a Bank organized and
existing under the laws of the United States of America or any political
subdivision thereof, agrees to furnish the Borrower, as soon as practicable
after any written request of the Borrower to such effect, any executed form
reasonably requested by the Borrower such as Internal Revenue Service Form
W-8BEN or Form W-8CI, and any other applicable US or UK form as to such
Bank's entitlement, if any, to exemption from, or a reduced rate of, or its
subjection to US or UK withholding tax on amounts payable to it hereunder
or under the Notes and each such Bank undertakes to use its best efforts
promptly to notify the Borrower of any material change in any information,
statement or form so furnished to the Borrower; provided, however, that any
failure on the part of any Bank to furnish any such information, statements
or forms shall in no way affect the terms of this Agreement or of the
Notes. Notwithstanding the foregoing, in the event any Bank fails to
furnish any such information, statements or forms, the Borrower shall only
pay to such Bank such amounts under this Agreement and the Notes as are due
without those additions described in clauses (i) and (ii) above that would
not have been required had such information, statements or forms been
provided in a timely fashion. As promptly as practicable after any Bank
becomes aware of the existence or occurrence of an event giving rise to the
imposition of US or UK withholding tax upon amounts payable to it hereunder
or under the Notes, such Bank shall use its best efforts to transfer its
Loans or Revolving Credit Loan Commitment to another office of such Bank
with a view to avoiding or mitigating the consequences of such tax. If any
Bank determines that it is unable to effect such transfer on or before the
thirtieth day after the date such Bank becomes aware of the existence or
occurrence of an event giving rise to the imposition of US or UK
withholding tax, such Bank shall promptly give notice of such determination
to the Borrower. If the Borrower receives notice of such determination from
such Bank, the Borrower may, by notice to such Bank, indicate its intention
to prepay the affected Loan in full (but with all premiums, if any,
provided for in this Agreement and with interest accrued to the date of
prepayment on such Loan and all other amounts then payable to such Bank
hereunder) on the tenth Business Day after the date of such notice of
intention. On or before the tenth day after receipt of any such notice of
intention, such Bank may, by notice to the Borrower, irrevocably elect to
receive payments hereunder reduced by the amount of such withholding. If
such an election is so made, the Borrower (i) shall cease to be under any
further obligation to pay any such additional amount in respect of such
withholding and (ii) shall cease to be entitled so to prepay the Loan by
virtue of being required to make such withholding. Any Bank which is or
becomes subject to such withholding tax agrees to use its best efforts to
provide the Borrower with an affidavit, within 30 days after such Bank
files its tax return, setting forth the amount of any tax credit it
received with respect thereto.
(b) Unless otherwise specifically provided herein, all payments under
or pursuant to, or in satisfaction of any of the Borrower's obligations
under this Agreement or under the Notes will be applied in the following
order of priority: (i) to any amounts not otherwise listed in this Section
5.2(b) then due and payable under this Agreement, the Notes or the Security
Documents, (ii) to any Commitment commission or fees then due and payable
pursuant to Section 4.1 of this Agreement, (iii) to any interest on the
Loans then due and payable, (iv) to any principal amount then due on the
Loans, (v) to reduce the unpaid principal amount of the Revolving Credit
Loans, and (vi) [intentionally omitted].
(c) Bank of Scotland hereby represents that, at the date of this
Agreement, it
(i) is recognized by the UK Board of Inland Revenue, for the
purposes of the Income and Corporation Taxes Act 1988 (as in effect on
the date hereof), as carrying on a bona fide banking business in the
UK by which all amounts received or receivable by it as a Bank under
this Agreement will be taken into account as a trading receipt of such
banking business for the purposes of UK Corporation Tax; or
(ii) is resident in a jurisdiction with which the UK has, at the
date of this Agreement, an appropriate "double taxation treaty"
reducing the amount of UK tax on amounts received or receivable by it
as a Bank under this Agreement to zero, or exempting such amounts from
such tax.
(d) If (i) the Borrower makes any payment to a Bank under Section
5.2(a), (ii) there are no amounts then payable, but unpaid, by the Borrower
under this Agreement or the other Loan Documents, and (iii) no Default or
Event of Default has occurred which has not been remedied by the Borrower
or waived by the Required Banks, such Bank shall negotiate with the Agent
and the Borrower with a view to reimbursing the Borrower, following receipt
by such Bank (and the passage of all periods for the audit of the tax
records of the Bank by the Inland Revenue or other appropriate tax
authority for the period in question), such proportion of any available
credit against, or remission for, tax as such Bank in good faith certifies
to be attributable to this Agreement or the other Loan Documents and the
proportion which will leave it (after reimbursement to the Borrower) in no
worse position than it would have been in had the relative withholding or
deduction never been required. This Section shall not impose any obligation
on any Bank:
(1) to manage its tax or other affairs in any particular manner;
or
(2) to claim any credit against, or remission for, tax payable on
amounts received by it under this Agreement or the other Loan
Documents in priority to any other tax relief, or allowance for tax
borne by it, on such amounts; or
(3) to disclose any information concerning its tax affairs to the
Borrower or to any other Person.
Any reimbursement to the Borrower shall be made promptly after
certification by a Bank of any amount due to the Borrower.
5.3 Distribution by Agent. All payments received by the Agent from the
Borrower on account of principal and interest under this Agreement or the Notes
or with respect to Commitment commission shall be promptly distributed by the
Agent to the Banks (in the same currency and type of funds received by the
Agent) as follows: (a) [intentionally deleted]; (b) if in respect of principal,
then on a pro rata basis to all Loans outstanding; (c) [intentionally deleted];
(d) if in respect of interest due on the Loans, then to each Bank in the
proportion that the aggregate amount of such unpaid interest due on the Loans of
each such Bank bears to the aggregate amount of such unpaid interest due on all
such Loans; (e) if in respect of Commitment commission pursuant to Section 4.1,
to each Bank in the proportion that the Revolving Credit Loan Commitment of such
Bank bears to the Total Revolving Credit Loan Commitment; (f) [intentionally
deleted]; (g) if in respect of fees pursuant to Section 4.3, to each Bank party
to this Agreement on the Amendment Effective Date in proportion that the
Revolving Credit Loan Commitments of such Banks on such date bears to the Total
Commitments on such date; (h) if in respect of a payment under Section 5.2(a)
hereof, to each Bank in accordance with its entitlement thereto; (i) if in
respect of payments made in Section 2A, as provided in Section 2A; and (j) if in
respect of Sections 3.7-3.11, as provided in such sections. Other than in
respect of amounts received directly from the Borrower for repayment to the
Banks (which shall be paid in the currency received, unless otherwise separately
agreed to in writing by the Agent and such Bank), the Agent is hereby
irrevocably authorized (but not required) by the Borrower and the Banks to
convert funds received in a particular currency to the currency in which payment
is due, in such manner and on such terms as the Agent may in good ▇▇▇▇▇ ▇▇▇▇
appropriate.
Section 6. CONDITIONS PRECEDENT TO INITIAL LOANS.
The Banks party to this Agreement on the Closing Date (the "Closing Date
Banks") shall not be obligated to make any Loans or issue any Letters of Credit
on the Closing Date unless at the time of making such Loan or issuing such
Letter of Credit (unless otherwise specifically indicated) the following
conditions have been satisfied to the satisfaction of the Agent (or waived by
the Agent):
6.1 Default, etc. On the date of such Loan or the issuance of a Letter of
Credit (and after giving effect to the Loans made and Letters of Credit issued
on such date), there shall exist no Default or Event of Default and all
representations and warranties made by the Credit Parties herein or in the other
Loan Documents or otherwise by the Credit Parties in writing in connection
herewith or therewith shall be true and correct in all material respects with
the same effect as though such representations and warranties have been made at
and as of such time.
6.2 Notes. The Agent shall have received for each of the Closing Date Banks
the Revolving Credit Notes, each duly executed and completed by the Borrower.
6.3 Release of Deficiency Undertaking. There shall have been delivered to
the Borrower a release, substantially in the form of Exhibit D to this
Agreement, of the Deficiency Undertaking (as defined in the Original Agreement)
executed by XANSER (the "Release of Deficiency Undertaking").
6.4 Supporting Documents. There shall have been delivered to the Agent
(with sufficient copies for each of the Closing Date Banks) such information and
copies of documents, approvals (if any) and records (certified where
appropriate) of corporate and legal proceedings as the Agent or any Bank may
have reasonably requested relating to the Credit Parties' entering into,
issuance and performance of the Loan Documents and the other agreements and
documents related thereto to which each is a party. Such documents shall, in any
event, include:
(a) on or before September 13, 2002, certified copies of the Charter
Documents of each of the Credit Parties designated by the Agent and
certificates of existence and good standing for each of the Credit Parties
designated by the Agent which were not delivered on the Closing Date;
(b) certificates of authorized officers of each of the Credit Parties
designated by the Agent, certifying the corporate resolutions of each such
entity relating to the entering into and performance of the aforesaid
documents to which such entity is a party and the transactions contemplated
thereby;
(c) certificates of authorized officers of each of the Credit Parties
designated by the Agent, with respect to the incumbency and specimen
signatures of their respective officers or representatives authorized to
execute such documents and any other documents and papers, and to take any
other action, in connection therewith;
(d) a certificate of an authorized officer of Holding and an
authorized officer of the Borrower certifying, as of the Closing Date,
compliance with the conditions of Section 6and also the absence of any
Material Adverse Changes of the type referred to in Section 6.17;
(e) a certificate of an authorized officer of Holding and an
authorized officer of the Borrower certifying, (as to Holding, the Borrower
and each of their Subsidiaries) that the representations and warranties
with respect to Holding, the Borrower and each of their Subsidiaries
contained in Section 10 hereof are true and correct as of the Closing Date
with the same effect as though such representations and warranties had been
made at and as of such time and certifying (as to such entities) the
absence of any Material Adverse Changes; and
(f) on or before September 13, 2002, a certificate of an authorized
officer of Holding and an authorized officer of the Borrower certifying, as
of the date of such certificate, compliance with the conditions of Section
6 to be complied with on or before September 13, 2002.
6.5 Security Documents. There shall have been delivered to the Agent (with
sufficient copies for each of the Closing Date Banks):
(a) (i) A fixed and floating charge, substantially in the form of
Exhibit E to this Agreement, executed by the Borrower (as the same may
from time to time be amended, supplemented or otherwise modified, the
"Borrower Security Agreement"), and a Mortgage of Securities,
substantially in the form of Exhibit F to this Agreement, executed by
the Borrower (as the same may from time to time be amended,
supplemented or otherwise modified, the "Borrower Pledge Agreement"),
covering all real and personal property of the Borrower and all of the
shares or other equity interests issued by each of the Subsidiaries of
the Borrower (and the Intercompany Note to the extent payable to the
Borrower), together with (x) certificates representing such pledged
shares, (y) undated stock powers for such certificates executed in
blank and evidence that such pledge has been noted on the stock
records of the companies whose shares have been pledged and (z) as to
the Intercompany Note, endorsed in blank by the Borrower.
(ii) Guaranty agreements executed by FAI and any other US
Guarantor (as the same may from time to time be amended, supplemented
or otherwise modified, a "US Guaranty"), substantially in the form of
Exhibit G to this Agreement.
(iii) Security agreements executed by Holding, FAI and any other
US Guarantor (as the same may from time to time be amended,
supplemented or otherwise modified, a "US Security Agreement"), each
substantially in the form of Exhibit H to this Agreement, covering all
personal property of Holding, FAI and any other US Guarantor.
(iv) Except as provided below in this Section 6.5(a)(iv),
guaranty agreements and security agreements substantially in the form
of Exhibits I and J to this Agreement respectively (or such other
forms approved by the Agent as are appropriate in the jurisdictions
where the respective Foreign Guarantors are organized), executed by
each Foreign Guarantor (each such agreement, as the same may from time
to time be amended, supplemented or otherwise modified, a "Foreign
Guaranty" and a "Foreign Security Agreement", respectively), which
Foreign Security Agreements shall cover all real and personal property
of each of the Foreign Subsidiaries. Notwithstanding the foregoing,
each Foreign Guarantor that is an Insignificant Subsidiary and is
organized in a jurisdiction other than France or Australia may agree
in its Foreign Guaranty not to grant or permit to exist any Lien
whatsoever in any assets held by such Person in lieu of such Person
executing and delivering a Foreign Security Agreement. Notwithstanding
the foregoing, each Foreign Guarantor that is organized under the laws
of France and Australia shall execute and deliver to the Agent a
Foreign Guaranty and a Foreign Security Agreement on or before
September 13, 2002.
(v) Negative pledge agreements in form and substance satisfactory
to the Agent ("Foreign Negative Pledge Agreements") from each Foreign
Guarantor that (x) is an Insignificant Subsidiary and (y) with the
Agent's consent, does not execute and deliver a Foreign Security
Agreement pursuant to Section 6.5(a)(iv) hereof, wherein each such
Person agrees not to grant or permit to exist any Lien in any of its
assets. Notwithstanding the foregoing, each Foreign Guarantor that is
an Insignificant Subsidiary and is organized in a jurisdiction other
than France or Australia may agree in its Foreign Guaranty not to
grant or permit to exist any Lien whatsoever in any assets held by
such Person in lieu of such Person executing and delivering a Foreign
Negative Pledge Agreement.
(b) (i) Pledge agreements executed by XANSER, Holding, FAI and
any other US Guarantors, substantially in the form of Exhibit K to
this Agreement (as the same may be amended, supplemented or otherwise
modified from time to time, a "US Pledge Agreement"), covering all of
the shares or other equity interests issued by Holding, FAI and any
other US Guarantors (and the Intercompany Note to the extent payable
to any of such Persons), together with (x) certificates representing
such pledged shares, (y) undated stock powers for such certificates
executed in blank and evidence that such pledge has been noted on the
stock records of the companies whose shares have been pledged and (z)
as to the Intercompany Note, endorsed in blank by such Persons.
(ii) Pledge agreements in form and substance satisfactory to the
Agent, executed by each Foreign Subsidiary which itself owns stock or
other equity interests in another Subsidiary (each such agreement, as
the same may be amended, supplemented or otherwise modified from time
to time, a "Foreign Pledge Agreement"), covering all of the shares or
other equity interests issued by the Subsidiaries of the Foreign
Subsidiaries (and the Intercompany Note to the extent payable to any
of such Persons), together with (x) certificates representing such
pledged shares (to the extent such ownership interest is represented
by share certificates), (y) undated stock powers for such certificates
executed in blank and evidence that such pledge has been noted on the
stock records of the companies whose shares have been pledged and (z)
as to the Intercompany Note, endorsed in blank by such Persons.
(c) Intellectual property mortgages executed by Holding and FAI,
substantially in the form of Exhibit L to this Agreement or such other form
agreed to by the Agent (each, as the same may be amended, supplemented or
otherwise modified from time to time, a "US IPM"), covering (as to each)
all patents, trademarks, copyrights, trade names, and licenses of such
Persons together with a favorable opinion of patent and trademark counsel
satisfactory to the Agent with respect thereto.
(d) Such consents of third parties as the Agent may reasonably
request.
(e) (i) (A) A guaranty and a charge (as the same may from time to
time be amended, supplemented or otherwise modified, a Guaranty"
and a "UK Security Agreement", respectively) executed by each UK
Guarantor and substantially in the forms of Exhibits M and N to
this Agreement, guaranteeing all of the Borrower's obligations
under this Agreement and securing such guarantee with a charge
(fixed and floating) on all of such UK Guarantor's present real
property and present and future personal property (including,
without limitation, leases, stock and other equity interests in
its Subsidiaries, and intellectual property).
(B) A Mortgage of Securities substantially in the form of
Exhibit O to this Agreement (as the same may from time to time be
amended, supplemented or otherwise modified, a "UK Pledge
Agreement") executed by each UK Guarantor.
(ii) Duly authenticated and executed existing share certificates
in respect of the entire share capital of the Borrower and each Person
that is a Subsidiary of the Borrower, together with share transfer
forms duly executed in blank by the Borrower or the Loan Party that is
the record holder thereof.
(iii) An intellectual property mortgage executed by FIL,
substantially in the form of the US IPM or such other form agreed to
by the Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "UK IPM"), covering all patents,
trademarks, copyrights, trade names, and licenses of such Persons
together with a favorable opinion of patent and trademark counsel
satisfactory to the Agent with respect thereto; and
(iv) No Dormant Subsidiary (for as long as it remains an
Insignificant Subsidiary) shall be required to execute a Guaranty,
Security Agreement or Pledge Agreement pursuant to the provisions of
this Section 6.5.
(f) (i) Evidence of all filings of financing statements under the
applicable Uniform Commercial Code and similar notices under the
applicable laws of other relevant jurisdictions, satisfactory Lien
search requests on Form UCC-11 and analogous forms, confirming the
absence of any perfected Liens (except Permitted Liens) prior to the
Banks' Liens (except those consented to by the Agent) and all other
actions (except those with respect to UK documents that, in the
opinion of Freshfields Bruckhaus ▇▇▇▇▇▇▇▇ (as UK counsel to the
Agent), are typically made after the Closing Date and are listed on
Schedule 6.5 to this Agreement) with respect to the Liens created by
the Security Documents as are necessary or appropriate to perfect such
Liens (except for Liens on UK property of the Borrower and UK
Guarantors which are required to be perfected after the Closing Date
and notifications required to be placed on certificates of title for
vehicles when the same is required to perfect Liens therein).
(ii) A release, in form and substance satisfactory to the Agent,
of all Liens (except Permitted Liens and other Liens permitted by
Section 8.2 hereof) in all assets of the Loan Parties, including
properly executed UCC-3 termination statements and similar documents
under the applicable laws of other relevant jurisdictions.
(iii) Evidence of the absence of any perfected Liens in the UK
Guarantors' property prior to the Banks' Liens (except those consented
to by the Agent and except for Permitted Liens and the other Liens
referred to in Section 8.2(g)) and all other actions with respect to
the Liens created by each UK Security Agreement and UK IPM as
necessary or appropriate in the Agent's opinion and that of its UK or
US counsel to perfect such Liens. On or before September 13, 2002,
with respect to Foreign Guarantors organized under the laws of France
and Australia, evidence of the absence of any perfected Liens in such
Foreign Guarantors' property prior to the Banks' Liens (except those
consented to by the Agent and except for Permitted Liens and the other
Liens referred to in Section 8.2(g)) and all other actions with
respect to the Liens created by each such Foreign Guarantor's Security
Agreement as necessary or appropriate in the Agent's opinion and that
of its foreign counsel to perfect such Liens.
(iv) A Companies Form G395 completed in respect of the Borrower
Security Agreement and each UK Security Agreement shall have been duly
executed and delivered to Freshfields Bruckhaus ▇▇▇▇▇▇▇▇ for filing.
(iv) All security given by the Borrower and the other UK
Subsidiaries shall have been given in compliance with the requirements
of sections 151-158 (inclusive) of the Companies ▇▇▇ ▇▇▇▇. The Agent
and its counsel shall have been satisfied that all such requirements
with respect to such security have been met.
(g) a Subordination Agreement executed by each of the Loan Parties,
substantially in the form of Exhibit T-2 to this Agreement or such other
form agreed to by the Agent (each, as the same may be amended, supplemented
or otherwise modified from time to time, an "Intercompany Subordination
Agreement").
(h) Except to the extent otherwise consented to by the Agent, all
Liens under all Security Documents shall be first priority Liens in favor
of the Agent on behalf of the Banks.
6.6 Stock Certificates. On or before September 13, 2002, to the extent not
delivered to the Agent on the Closing Date, certificates representing all
pledged shares (to the extent such ownership interest is represented by share
certificates) and undated stock powers for such certificates executed in blank
and evidence that such pledge has been noted on the stock records of the
companies whose shares have been pledged.
6.7 Approvals and Consents. All orders, permissions, consents, approvals,
licenses, authorizations and validations of, and filings, recordings and
registrations with, and exemptions by, any Government Authority, or any other
Person, required to authorize or required in connection with the execution,
delivery and performance of this Agreement, the other Loan Documents and the
transactions contemplated hereby and thereby by any Credit Party shall have been
obtained (and, if so requested, furnished to the Agent, with sufficient copies
for the Closing Date Banks).
6.8 Solvency Certificates. The Borrower shall have delivered, or caused to
be delivered, to the Agent (with sufficient copies for the Closing Date Banks) a
"solvency" letter as to each of Holding, FAI and the Borrower, satisfactory in
form and substance to the Agent, from the chief financial officer of each such
Credit Party.
6.9 Reports. The Closing Date Banks shall have received from Persons
satisfactory to them:
(a) all environmental audits and reports (the "Audits") undertaken or
received by any Credit Party with respect to its Properties, in form and
substance satisfactory to the Agent; and
(b) an analysis satisfactory to the Agent, of all litigation (if any)
to which any Credit Party or any of its respective assets is party or
subject, or by which any Credit Party is otherwise affected.
6.10 Insurance. There shall have been delivered to the Agent a certificate
of an authorized officer of Holding and the Borrower stating that the insurance
maintained by each member of the Consolidated Group as of the Closing Date meets
the requirements of Section 7.4 as of the Closing Date.
6.11 Tax Allocation Agreement. A tax allocation agreement satisfactory to
the Agent shall have been entered into among the Credit Parties and each other
entity which will join in a consolidated tax return with the Credit Parties,
which agreement will provide, inter alia, that Holding and its Subsidiaries will
be entitled to the benefit of the NOL to the extent they are capable of
utilizing it and shall not be required to reimburse XANSER or any Affiliate of
XANSER for any such utilization.
6.12 Legal Opinions. The Agent shall have received legal opinions (in
sufficient counterparts for each of the Closing Date Banks), in form and
substance satisfactory to the Agent, addressed to the Agent and the Closing Date
Banks and dated the Closing Date, of:
(a) On or before September 13, 2002, US counsel to Holding and the
Borrower, covering (x) the matters set forth in Exhibit P to this Agreement
and (y) such other matters as the Agent or any Bank may reasonably request;
(b) On or before September 13, 2002, UK counsel to Holding and the
Borrower, covering (x) the matters set forth in Exhibit Q to this Agreement
and (y) such other matters as the Agent or any Bank may reasonably request;
(c) On or before September 13, 2002, counsel for Holding and the
Borrower in Norway confirming that each Foreign Guarantor organized under
the laws of Norway is prohibited by the laws of Norway from executing a
Foreign Guaranty, Foreign Security Agreement, Foreign Pledge Agreement or
Foreign Negative Pledge Agreement;
(d) On or before September 13, 2002, counsel for Holding and the
Borrower in Australia and France (and such other local or foreign counsel
to Holding and the Borrower as requested by the Agent or any Bank),
covering under the laws of such jurisdictions (i.e., other than the US and
the UK) (x) the matters set forth in Exhibit R to this Agreement and (y)
such other matters as the Agent or such Bank may reasonably request; and
(e) On or before September 13, 2002, Freshfields Bruckhaus ▇▇▇▇▇▇▇▇,
UK counsel for the Agent, and other special local or foreign counsel for
the Agent, but solely if requested by the Agent or any Bank, covering such
matters incident to the transactions contemplated hereby as the Agent or
any Bank may reasonably request.
6.13 Legal Fees and Expenses. On or before September 13, 2002, to the
extent demand therefor shall have been made, all reasonable legal fees and
expenses (through September 13, 2002) of the Agent's US, UK, Australian and
French counsel and (if any) other local or special counsel in connection with
the transactions contemplated by this Agreement shall have been paid in full.
6.14 Change in Law. On the date of such Loans or the issuance of any Letter
of Credit, no change shall have occurred in applicable law, or in applicable
regulations thereunder or in interpretations thereof by any Government Authority
or other Person which, in the opinion of any Bank, would make it illegal for
such Bank to make the Loan required to be made (or the Letter of Credit required
to be issued) on such date.
6.15 All Proceedings to be Satisfactory. All material corporate,
partnership and legal proceedings and all material instruments in connection
with the transactions contemplated by this Agreement and the other documents
referred to herein shall be satisfactory in form and substance to the Agent, and
the Agent shall have received information and copies of all documents which the
Agent or such Bank may reasonably have requested in connection herewith, such
documents where appropriate to be certified by proper corporate officials or
Government Authorities.
6.16 No Opposition. No suit, action or proceeding shall be pending or
threatened on the Closing Date before or by any Government Authority or other
Person seeking to restrain or prohibit the consummation of the transactions
contemplated by this Agreement.
6.17 Adverse Change. There shall have been, in the Agent's reasonable
opinion, no Material Adverse Change with respect to any Credit Party since
December 31, 2001.
6.18 Fees and Expenses. The Agent's Fee referred to in Section 4.2 of this
Agreement and the Facility Fee referred to in Section 4.3 of this Agreement
shall have been paid in full.
6.19 [intentionally deleted]
6.20 [intentionally deleted]
All documents and papers required by this Section 6 shall be in form and
substance satisfactory to the Banks and delivered to the Agent at its Closing
Office or as the Agent may otherwise direct.
Section 6A. CONDITIONS PRECEDENT TO SUBSEQUENT LOANS AND LETTERS OF CREDIT.
The Banks shall not be obligated to make any Loans or issue any Letters of
Credit after the Closing Date unless, at the time of the making of such Loan or
issuing such Letter of Credit (except as hereinafter indicated) the following
conditions (unless waived in writing by the Required Banks) have been satisfied:
6A.1 Certain Conditions. At the time of the making of such Loan or issuing
such Letter of Credit, and immediately after giving effect thereto, (a) all
deficiencies, if any, with respect to conditions precedent to any prior Loan or
Letter of Credit shall have been corrected, (b) all of the conditions specified
in Section 6 shall be satisfied in full (with any reference in any of such
Sections to the Loans made or Letters of Credit issued on the Closing Date to be
deemed a reference to the Loan or Letters of Credit (as the case may be) then
requested to be made), (c) each of the documents specified in Sections 6 and
12.14 shall be in full force and effect and no Credit Party thereto shall have
failed to perform in any material respect any of its obligations thereunder, and
(d) no issuer thereof shall have rescinded or qualified any of the statements,
certificates, letters, reports or opinions referred to in Section 6.
6A.2 Subsequent Opinions of Counsel. If reasonably requested by the Agent,
the Agent shall have received from any or all of the counsel referred to in
Section 6.12 or other counsel satisfactory to the Agent such favorable
supplemental legal opinions addressed to the Agent and the Banks and dated the
date of such Loan or Letter of Credit and covering such matters incidental to
the transactions contemplated by this Agreement as the Agent shall reasonably
request, each of which opinions shall be in form and substance satisfactory to
the Agent.
6A.3 Officer's Certificate.
(a) If reasonably requested by the Agent, the Agent shall have
received a certificate of authorized officers of Holding and the Borrower
certifying, as of the date of the Loan then being made or Letter of Credit
then being issued, compliance with the provisions of Section 6.1 (with the
reference therein to Loan or Letter of Credit being deemed a reference to
the Loan being made or Letter of Credit being issued on the date of said
certificate) and further to the effect that the conditions specified in
Section 6A.1 are satisfied at such time. Any such certificate shall be
given "to the best of such officers' knowledge, based upon due and adequate
investigation" or as otherwise agreed by the Borrower and the Agent.
(b) The making of each Loan and the issuance of each Letter of Credit
subsequent to the Closing Date shall constitute a representation and
warranty by Holding and the Borrower to the Agent that, at the time of said
subsequent Loan or Letter of Credit (and after giving effect thereto), (i)
all representations and warranties contained herein or in the other Loan
Documents or otherwise made by Holding or the Borrower or any other Credit
Party in connection herewith or therewith are true and correct in all
material respects with the same effect as though such representations and
warranties were being made at and as of such time, (ii) no Default or Event
of Default exists and (iii) the conditions specified in Section 6A.1 are
satisfied at such time.
6A.4. Fees and Expenses. To the extent demand therefor shall have been
made, all reasonable legal fees and expenses (through the date of the
immediately preceding Loan and Letter of Credit) of the Agent's US and UK
counsel and (if any) local or special counsel in connection with the
transactions contemplated by this Agreement shall have been paid in full.
All of the documents and papers referred to in this Section 6A shall be in
form and substance satisfactory to the Agent and shall be delivered to the Agent
at its Closing Office (or if to another Bank, at its address listed on the
signature pages hereof), or at such other office as the Agent may from time to
time specify to the Borrower.
Section 7. AFFIRMATIVE COVENANTS.
Holding and the Borrower severally covenant and agree hereby that, so long
as this Agreement is in effect and while any Letter of Credit is outstanding and
until the Commitments are terminated and all of the Loans, together with
interest, Commitment commission and all other obligations incurred hereunder
(including Deemed Disbursements and Reimbursement Obligations and fees and
disbursements in connection therewith), are paid in full, such Loan Parties will
perform, and will cause each of their respective Subsidiaries to perform, the
obligations set forth in this Section 7.
7.1 Financial Statements. Holding and the Borrower will furnish to the
Agent and each Bank:
(a) (i) As soon as practicable and in any event within 45 days
after the close of each of the first two calendar months of each
fiscal quarter of Holding and its Subsidiaries, the monthly management
reports prepared by Holding and its Subsidiaries, which reports shall
contain (among other things), unaudited consolidating statements of
income of Holding and its Subsidiaries for the Fiscal Year to date,
and such other material as the Agent shall reasonably request;
(ii) As soon as practicable and in any event within 60 days after
the close of each fiscal quarter of Holding and its Subsidiaries
(within 105 days, with respect to the last fiscal quarter of each
Fiscal Year), a certificate of Holding's chief financial officer
stating (x) that a review of the activities of each member of the
Consolidated Group during such fiscal quarter has been made under his
supervision with a view to determining whether each such Person has
observed, performed and fulfilled all of its obligations under this
Agreement and the other Loan Documents, and (y) that, to the best of
such officer's knowledge, and after due and adequate investigation,
there exists no Event of Default or Default or, if any Event of
Default or Default exists, specifying the nature thereof, the period
of existence thereof and what action the Borrower (or if other than
the Borrower, the affected Person) proposes to take with respect
thereto, and accompanied by a certificate, in form and substance
satisfactory to the Agent and the Required Banks, setting forth the
Loan Parties' calculations with respect to its compliance with each of
Sections 8.18 through 8.23;
(iii) As soon as practicable and in any event within 60 days
after the close of each fiscal quarter of each Fiscal Year of Holding
and its Subsidiaries (within 105 days, with respect to the last fiscal
quarter of each Fiscal Year), as at the end of and for the period
commencing at the end of the previous Fiscal Year, and (in each case)
ending with the end of such fiscal quarter, as the case may be, an
unaudited consolidated balance sheet of Holding and its Subsidiaries
and a consolidated statement of income and a statement of cash flow of
Holding and its Subsidiaries, such statements to be accompanied by
consolidating balance sheets, income statements and other relevant
consolidating information for Holding and its Subsidiaries, all in
reasonable detail and certified by the chief financial officer of
Holding subject to year-end audit and adjustments and setting forth in
comparative form the corresponding figures as of one year prior
thereto or for the appropriate periods of the preceding Fiscal Year,
as the case may be.
(b) As soon as practicable and in any event within the earlier of (x)
five days after Holding or the Borrower receives same or (y) 120 days after
the close of each Fiscal Year of Holding and its Subsidiaries, as at the
end of and for the Fiscal Year just closed, as the case may be, a
consolidated balance sheet of Holding and its Subsidiaries, and a
consolidated statement of income and change in retained earnings and a
statement of cash flow of Holding and its Subsidiaries, such statements to
be accompanied by consolidating balance sheets, income statements and other
relevant consolidating information for Holding and its Subsidiaries, for
such Fiscal Year setting forth the corresponding figures of the previous
annual audit (to the extent available) in comparative form, all in
reasonable detail and certified by the Auditors, and accompanied by:
(1) a certificate, in form and substance satisfactory to the
Agent and the Required Banks, of said Auditors that, in conducting
their audit in connection with such Financial Statements, they
obtained no knowledge of the existence of any Event of Default or
Default or, if in the opinion of such Auditors, any Event of Default
or Default exists, specifying the nature thereof and the period of
existence thereof; and
(2) a certificate, in form and substance satisfactory to the
Agent and the Required Banks, of said Auditors with respect to the
Loan Parties' compliance with each of Sections 8.18 through 8.23;
(c) Promptly upon receipt thereof, copies of all detailed financial
reports and management letters, if any, submitted to Holding or any of its
Subsidiaries by their respective Auditors, in connection with each annual
or interim audit of their respective books by such Auditors;
(d) With reasonable promptness, such other information respecting the
business, properties, operations, prospects or condition (financial or
otherwise) of Holding or any of its Subsidiaries as the Agent or any Bank
may from time to time reasonably request;
(e) As soon as possible and in any event (A) within 30 days after
Holding or any of its ERISA Affiliates knows that any Termination Event
described in clause (i) of the definition of Termination Event with respect
to any Pension Plan has occurred and (B) within 10 days after Holding or
any of its ERISA Affiliates knows that any other Termination Event with
respect to any Pension Plan has occurred, a statement of the chief
financial officer of Holding or the Borrower describing such Termination
Event and the action, if any, which Holding or such ERISA Affiliate
proposes to take with respect thereto;
(f) Promptly and in any event within ten Business Days after receipt
thereof by Holding or any of its ERISA Affiliates from the PBGC, copies of
each notice received by Holding or any such ERISA Affiliate of the PBGC's
intention to terminate any Pension Plan or to have a trustee appointed to
administer any Pension Plan;
(g) Promptly and in any event within 30 days after the filing thereof
with the Internal Revenue Service, copies of each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) with respect to each
Pension Plan;
(h) Promptly and in any event within ten Business Days after receipt
thereof by Holding or any of its ERISA Affiliates from a Multiemployer Plan
sponsor, a copy of each notice received by Holding or any of its ERISA
Affiliates concerning (x) the imposition or amount of withdrawal liability
under Subtitle E of Title IV of ERISA or (y) any determination by a
Multiemployer Plan sponsor that such Multiemployer Plan is, or is expected
to be, in "reorganization" (within the meaning of Section 4241 of ERISA) or
"insolvent" (within the meaning of Section 4245 of ERISA), or has incurred
or is expected to incur an "accumulated funding deficiency" (within the
meaning of Section 302 of ERISA or Section 412 of the Code);
(i) No later than February 15th of each Fiscal Year, an annual budget
(in form and detail reasonably satisfactory to the Agent) for the
Consolidated Group and its members, in each case commencing with the Fiscal
Year in which such February 15th occurs, setting forth as to each such
Fiscal Year, (x) the projected balance sheet as at the end of such Fiscal
Year, (y) the projected statement of earnings for such Fiscal Year, and (z)
the projected statement of cash flow for such Fiscal Year; and
(j) Promptly and in any event within five Business Days after the
filing or distribution thereof, copies of all periodic and other reports,
proxy statements and other materials filed by XANSER or any other Credit
Party with the SEC or with any national securities exchange or distributed
by XANSER or any other Credit Party to its security holders.
7.2 Notice of Litigation. The Borrower will promptly give written notice to
the Agent of (i) any action or proceeding, or to the extent any member of the
Consolidated Group may have any notice thereof, any claim which may reasonably
be expected to be commenced or asserted, against Holding or any of its
Subsidiaries in which the amount involved is $500,000 (or its equivalent in any
currency) or more, and (ii) any dispute which may exist between Holding or any
of its Subsidiaries and any governmental regulatory body (including any audit by
the Internal Revenue Service or the Inland Revenue) or any employees of Holding
or any Subsidiary of Holding, which dispute may substantially affect the normal
business operations of Holding or any of such Subsidiaries or any of their
respective properties and assets.
7.3 Payment of Charges. Holding and the Borrower will duly pay and
discharge, and will cause each of their respective Subsidiaries to duly pay and
discharge (i) all taxes, assessments and governmental charges or levies imposed
upon or against it or its property or assets, or upon any property leased by it,
prior to the date on which penalties attach thereto, unless and to the extent
only that such taxes, assessments and governmental charges or levies are being
contested in good faith and by appropriate proceedings and such Loan Party or
Subsidiary has set aside on its books adequate reserves therefor, (ii) all
lawful claims, whether for labor, materials, supplies, services or anything
else, which might or could, if unpaid, become a lien or charge upon such
property or assets, unless and to the extent only that the validity thereof is
being contested in good faith and by appropriate proceedings, and (iii) all its
trade bills when due in accordance with their original terms, including any
applicable grace periods, unless and to the extent only that such trade bills
are being contested in good faith and by appropriate proceedings.
7.4. Insurance.
(a) Holding and the Borrower will keep, and will cause each of their
respective Subsidiaries to keep, (i) all of its insurable property insured
at all times with financially sound and responsible insurance carriers
against loss or damage by fire and other risks, casualties and
contingencies as required by the Security Documents and in such manner and
to the extent that like properties are customarily so insured by other
corporations engaged in the same or similar business similarly situated,
and (ii) adequate insurance at all times with financially sound and
responsible insurance carriers against liability on account of damage to
persons and properties and under all applicable workmen's compensation
laws, in such manner and to the extent that like properties are customarily
so insured by other corporations engaged in the same or similar business
similarly situated; and
(b) Holding and the Borrower will obtain, and will cause each of their
respective Subsidiaries to obtain, adequate insurance covering such other
risks as the Agent or the Required Banks may reasonably request within 30
days of such request (to the extent such insurance is generally available
in the industry and not cost-prohibitive in industry terms); and keep, and
cause each of their respective Subsidiaries to keep, such insurance in
effect to the extent requested by the Agent or the Required Banks.
7.5 Maintenance of Records. Holding and the Borrower will keep, and will
cause each of their respective Subsidiaries to keep, at all times books of
record and account in which full, true and correct entries will be made of all
dealings or transactions in relation to its business and affairs, and Holding
and the Borrower will provide, and will cause each of their respective
Subsidiaries to provide, adequate protection against loss or damage to such
books of record and account.
7.6. Preservation of Corporate Existence. Holding and the Borrower will
each maintain and preserve its corporate existence and right to carry on its
business and duly procure all necessary renewals and extensions thereof, and
maintain, preserve and renew all rights, powers, privileges and franchises which
in the opinion of the board of directors of such Loan Party continue to be
advantageous to it and cause each of their respective Subsidiaries (other than
Insignificant Subsidiaries) to do so. Holding and the Borrower will each comply
in all material respects with all applicable laws, statutes and regulations of
the US and the UK and of any relevant Government Authority, State or
municipality, and of any agency thereof (including, without limitation, all
Environmental Laws), in respect of the conduct of its business, and, in each
such case, cause each of their respective Subsidiaries so to do. Without
limiting the generality of the foregoing, Holding and the Borrower agree to (and
to cause each of their respective Subsidiaries, other than Insignificant
Subsidiaries, to) qualify to do business as a foreign corporation in each
jurisdiction where the nature of its business and the operations conducted by it
therein require it to be so qualified. Neither Holding nor the Borrower will
take any action that will cause the dissolution of any of their respective
Subsidiaries, other than Insignificant Subsidiaries.
7.7 Preservation of Assets. Holding and the Borrower will keep, and will
cause each of their respective Subsidiaries so to keep, its property in good
repair, working order and condition and from time to time make all needful and
proper repairs, renewals, replacements, extensions, additions, betterments and
improvements thereto, so that the business carried on by it may be properly and
advantageously conducted at all times in accordance with prudent business
management.
7.8 Inspection of Books and Assets.
(a) Holding and the Borrower will allow any representative, officer or
accountant of any Bank or the Agent, upon reasonable notice, to visit and
inspect any of its property, to examine its books of record and account and
to discuss its affairs, finances and accounts with its officers, and at
such reasonable time and during usual business hours and as often as any
Bank or the Agent may reasonably request and, in each such case, cause each
of their respective Subsidiaries so to do.
(b) Upon reasonable request by the Agent to Holding or the Borrower,
which request shall not be unreasonably denied, each Loan Party will,
subject to applicable legal requirements (including without limitation,
applicable securities laws), allow any representative, officer or
accountant of the Agent to discuss the Financial Statements, the other
financial information from time to time delivered hereunder and the
financial condition of members of the Consolidated Group with the Auditors.
Any such discussions will be held at times and locations reasonably
acceptable to each of the Agent, Holding, the Borrower and the Auditors. No
such discussions will be held without the presence of an officer of Holding
or the Borrower, unless Holding or the Borrower consent otherwise.
7.9 Payment of Indebtedness. Holding and the Borrower will duly and
punctually pay, or cause to be paid, the principal of and the interest on all
Indebtedness for Borrowed Money heretofore or hereafter incurred or assumed by
Holding or the Borrower or their respective Subsidiaries, or in respect of which
any such Person shall otherwise be liable, when and as the same shall become due
and payable, unless such Indebtedness for Borrowed Money be renewed or extended,
and such Loan Party will not permit any act or omission to occur or exist which
is or may be declared to be a default under any indenture or other agreement
securing, relating to, or evidencing such Indebtedness for Borrowed Money or
pursuant to which such Indebtedness for Borrowed Money is incurred, provided
that the failure of any Loan Party so to do shall not create an Event of Default
under Section 9.4 hereof to the extent such failure does not give rise to an
Event of Default under Section 9.5 hereof.
7.10 Further Assurances. Holding and the Borrower will (and will cause each
of their respective Subsidiaries to) make, execute or endorse, and acknowledge
and deliver or file, all such vouchers, invoices, notices, and certifications
and additional agreements, undertakings, conveyances, transfers, assignments, or
further assurances, and take any and all such other action, as the Agent may,
from time to time, reasonably deem necessary or proper in connection with this
Agreement, the obligations of such Loan Party hereunder or under any of the
other Loan Documents to which such Loan Party is a party, or for the better
assuring and confirming unto the Agent on behalf of the Banks all or any part of
the security for the Loans.
7.11 Notice of Default. Forthwith upon (and, in any event, within five
Business Days of) any officer of Holding or the Borrower obtaining knowledge of
the existence of an Event of Default, Holding or the Borrower will deliver to
the Agent a certificate signed by an officer of Holding or the Borrower
specifying the nature thereof, the period of existence thereof, and what action
the affected Loan Party proposes to take with respect thereto.
7.12 Reserves. Holding and the Borrower will set up, and will cause each of
their respective Subsidiaries to set up, on its books from its earnings,
reserves for bad debt in accordance with GAAP and in an aggregate amount deemed
adequate in the judgment of Holding and the Borrower.
7.13 Arms-length Transactions. Holding and the Borrower will conduct, and
cause each of their respective Subsidiaries to conduct, all transactions with
any of their respective Affiliates on an arms-length basis.
7.14 Solvency. Holding and the Borrower will continue to be Solvent and
ensure that each of their respective Significant Subsidiaries will continue to
be Solvent.
7.15 Cooperation. At the Agent's request and upon reasonable notice,
Holding and the Borrower will meet from time to time with (and provide financial
information to) other financial institutions to which any of the Banks may wish
to grant participations in the Loans and with other potential Bank Assignees.
7.16 Environmental Matters.
(a) The Borrower will promptly notify the Agent (with a description in
reasonable detail) of:
(i) the receipt of any Environmental Claim by any member of the
Consolidated Group;
(ii) the discovery of any Contaminant or Release on, in, under or
emanating from any Properties or operations of any member of the
Consolidated Group;
(iii) (x) the violation of, or any condition which might result
in a violation of, any Environmental Law or (y) any change in any
Environmental Law or in the administration or interpretation thereof,
which in either case might subject any member of the Consolidated
Group to Environmental Costs;
(iv) the commencement of any judicial or administrative
proceeding or investigation alleging a violation of any Environmental
Law by any member of the Consolidated Group; or
(v) any material change in the representations and warranties in
Section 10.12 or any material change with respect to any material
matter addressed in the Audits;
(b) Holding and the Borrower will, and will cause each of their
respective Subsidiaries to, adopt and maintain prudent practices with
respect to compliance with Environmental Laws, including prudent air and
water pollution control and solid and hazardous waste management practices
and including at a minimum such practices as (a) may be required or
dictated by current and future Environmental Laws, and (b) are necessary to
maintain the value of the Agent's and the Banks' Liens in the Collateral
free from all actual or threatened Environmental Claims.
(c) The Borrower will promptly notify the Agent whenever the aggregate
amount of
(A) all Environmental Costs incurred on or after the Closing Date
by any member of the Consolidated Group, plus
(B) all Environmental Costs required or due to be paid by such
member of the Consolidated Group within the 18 months following the
date when such calculation is being made,
when combined with
(C) all Environmental Costs incurred by all other members of the
Consolidated Group prior to such date but subsequent to the Closing
Date, and
(D) all Environmental Costs required or due to be paid within
such 18-month period by the other members of the Consolidated Group,
would exceed the sum of $2,000,000.
7.17 Notification of Account Debtors. Upon request of the Agent after and
during the continuance of an Event of Default, each Loan Party will promptly
notify (in manner, form and substance satisfactory to the Agent) all Persons who
are at any time obligated under receivables payable to such Loan Party that the
Banks possess a security interest in such receivables and that all payments in
respect thereof are to be made to such account as the Agent directs.
7.18 [intentionally deleted]
7.19 [intentionally deleted]
7.20 Subsidiary Guarantees. Whenever a Subsidiary of Holding that is an
Insignificant Subsidiary or is not a Guarantor on the Closing Date becomes a
Significant Subsidiary, Holding and the Borrower shall (within 45 days after the
Borrower or Holding first has knowledge that such Subsidiary has become a
Significant Subsidiary but in any event, no later than 75 days after the end of
the fiscal quarter in which such Subsidiary became a Significant Subsidiary)
cause such Subsidiary to execute and deliver to the Agent a Guarantee Agreement
and a security agreement or charge satisfactory in form and substance to the
Agent and to otherwise comply (within said 45-day period) with the provisions of
Section 6.5 as fully as if such provisions were set forth at length in this
paragraph (without regard to any reference in Section 6 as to such provisions
being required to be satisfied no later than the Closing Date.
7.21 Press Releases. The Borrower shall obtain the consent of the Agent to
any press release or other publicity which makes reference to the Loans or to
some or all of the Agent or the Banks unless the publicity is required by law,
in which case the Borrower shall notify the Agent and the Banks thereof as soon
as practicable upon becoming aware of the requirement.
7.22 [intentionally deleted]
7.23 [intentionally deleted]
7.24 [intentionally deleted]
7.25 Tax Allocation Agreement. Promptly after any Person, not a party to
the Tax Allocation Agreement on the Closing Date, becomes entitled to file a
consolidated United States federal income tax return with Holding or FAI, the
Borrower will cause such Person to execute the Tax Allocation Agreement.
7.26 [intentionally deleted]
7.27 [intentionally deleted]
7.28 [intentionally deleted]
7.29 Subordination Agreements. No later than the Closing Date, XANSER shall
enter into the XANSER Subordination Agreement with respect to (x) all management
and similar fees accrued or otherwise payable, as of the Closing Date or any
time thereafter, to XANSER by Holding or any Subsidiary of Holding, together
with any interest that may be payable thereon and (y) all other obligations of
the Credit Parties to XANSER. The XANSER Subordination Agreement shall provide
that payments thereunder may be made so long as no Event of Default under this
Agreement or any other Loan Document has occurred.
7.30 [intentionally deleted]
Section 8. NEGATIVE COVENANTS.
Holding and the Borrower severally covenant and agree that so long as this
Agreement is in effect and while any Letter of Credit is outstanding and until
the Commitments are terminated and all of the Loans, together with interest,
Commitment commission and all other obligations incurred hereunder (including
Deemed Disbursements and Reimbursement Obligations and fees and disbursements in
connection therewith), are paid in full, such Loan Parties will perform, and
will cause each of their respective Subsidiaries to perform, the obligations set
forth in this Section 8 (unless it shall first have procured the written consent
of the Agent or the Required Banks to do otherwise).
8.1 Engage in Same Type of Business.
(a) Neither Holding nor the Borrower will enter into, or permit any of
their respective Subsidiaries to enter into, any business which is
substantially different from the business in which it is presently engaged.
(b) Holding, the Borrower and FOSI will not enter into any business or
activity other than its ownership of the capital stock of its Subsidiaries
and, to the extent its board of directors directs, its participation in the
management and business of its Subsidiaries.
(c) FOSI will not enter into any business or activity other than its
ownership of the capital stock of Foreign Subsidiaries.
8.2 Liens. Neither Holding nor the Borrower will contract, create, incur or
assume (or, as to Liens arising after the Closing Date which are not created or
assumed by Holding or one of its Subsidiaries, suffer to exist for more than 45
days, or if earlier, 30 days after the date an officer of any Credit Party
becomes aware thereof) any Lien upon or with respect to, or by transfer or
otherwise subject to the prior payment of any indebtedness (other than the
Loans), any of its property or assets, whether now owned or hereafter acquired,
or permit any of their respective Subsidiaries so to do; except (i) liens for
taxes, assessments, levies or governmental charges not yet due or which are
being contested in good faith by appropriate proceedings diligently conducted
and with respect to which adequate reserves are being maintained in accordance
with GAAP, and (ii) other liens, charges, and encumbrances incidental to the
conduct of its business or the ownership of its property and assets which were
not incurred in connection with the borrowing of money or the obtaining of
advances or credit and which do not materially detract from the value of its
property or assets or materially impair the use thereof in the operation of its
business; and (iii) the following:
(a) Liens in connection with workmen's compensation, unemployment
insurance or other social security obligations;
(b) Deposits or pledges securing the performance of bids, tenders,
contracts (other than contracts for the payment of money), leases,
statutory obligations, surety and appeal bonds and other obligations of
like nature made in the ordinary course of business;
(c) Mechanics', carriers', warehousemen's, workmen's, materialmen's,
or other like Liens arising in the ordinary course of business with respect
to obligations which are not due or which are being contested in good
faith;
(d) Liens securing the Borrower's Obligations to the Agent and the
Banks in respect of the Loans, Letters of Credit, Deemed Disbursements and
Reimbursement Obligations;
(e) Encumbrances consisting of zoning regulations, easements, rights
of way, survey exceptions and other similar restrictions on the use of real
property or minor irregularities in titles thereto which do not materially
impair use of such property by Holding or its Subsidiaries in the operation
of the business of Holding or the Subsidiary owning the same;
(f) Liens to the Agent and the Banks securing guarantees by the
Guarantors of the Obligations of the Borrower under this Agreement;
(g) Liens existing on the Closing Date and indicated on Schedule
8.2(g) to this Agreement, and Liens existing on the Closing Date but not
listed on said Schedule 8.2(g) because they are Liens solely on, and solely
securing the purchase price or lease obligations for, fax machines,
typewriters, photocopiers and similar office equipment none of which
obligations is more than $25,000 with respect to any one such machine or
piece of equipment and the aggregate of all such obligations is not more
than $1,000,000;
(h) Liens placed upon property of a Loan Party at the time of
acquisition thereof by such Loan Party to secure up to 75% of the purchase
price thereof; provided that such Lien shall not encumber any other
property of any Loan Party and provided further that the aggregate amount
of indebtedness secured thereby pursuant to this clause (h) shall not
exceed $400,000 at one time outstanding;
(i) Liens placed upon motor vehicles of a Loan Party at the time of
acquisition thereof by such Loan Party to secure the purchase price
thereof; provided that such Lien shall not encumber any other property of
any Loan Party; and
(j) Liens existing on the Closing Date securing the Australian
Facility.
8.3 Other Indebtedness. Neither Holding nor the Borrower will contract,
create, incur or assume (or, as to Indebtedness for Borrowed Money arising after
the Closing Date which is not contracted, created, incurred or assumed by
Holding or one of its Subsidiaries, suffer to exist for more than 30 days) any
Indebtedness for Borrowed Money or permit any of their respective Subsidiaries
so to do; except
(i) indebtedness of the Borrower represented by the Loans and the
obligations of the Borrower in respect of the LC Outstandings;
(ii) the Guarantee Agreements;
(iii) the Australian Facility, the Carlisle Facility, the Norwegian
Facility and any other indebtedness of Holding or any of its Subsidiaries
secured by a Letter of Credit;
(iv) [intentionally deleted];
(v) [intentionally deleted];
(vi) [intentionally deleted];
(vii) indebtedness permitted by the provisos to Section 8.5 hereof;
(viii) trade payables incurred in the ordinary course of business,
provided that same are not more than 60 days past due (unless (A) they are
being contested in good faith, (B) appropriate reserves are provided
therefor to the extent required by GAAP, and (C) the failure to make such
payment does not give rise to any Lien in excess of $100,000 or its
equivalent in other currencies);
(ix) non-recourse indebtedness incurred in accordance with, and
secured solely by the Liens permitted by, clauses (h) and (i) of Section
8.2(iii);
(x) [intentionally deleted];
(xi) unsecured indebtedness in addition to that permitted by the other
clauses of this Section 8.3, but only if (A) the Dollar Equivalent of the
aggregate amount of such loans at any one time outstanding does not exceed
$2,500,000, (B) no such loan is borrowed from a Credit Party other than
XANSER and (C) any such loan borrowed from XANSER is subordinated to any
obligation owed by Holding, the Borrower or any other Credit Party to the
Agent and the Banks;
(xii) [intentionally deleted]; and
(xiii) the right to contribution between and among Holding and its
Subsidiaries in the event any of them is required to make payment to the
Agent or the Banks under this Agreement or their respective Guarantee
Agreements.
8.4 Advances from Customers. Neither Holding nor the Borrower will contract
for or accept, or permit any of their respective Subsidiaries so to do, advances
or deposits from customers other than in the ordinary course of business;
provided that the aggregate amount of advances or deposits by members of the
Consolidated Group from any one customer (including Persons directly or
indirectly controlling, controlled by, or under common control with such
customer) shall not exceed $500,000 (or an equivalent amount in other
currencies, computed at the Spot Rate) in the aggregate at any one time.
8.5 Advances and Loans. Neither Holding nor the Borrower will lend money or
credit, or make advances to any Person or permit any of their respective
Subsidiaries so to do, except the sale of services and products of the
Consolidated Group on credit in the ordinary course of business on terms not
more favorable than those used by other Persons similarly situated and engaged
in the same or similar business; provided however that notwithstanding any other
provisions in this Agreement any Loan Party may lend money and make advances to
any other Loan Party if after giving effect thereto:
(a) the aggregate principal amount of all such loans and advances
outstanding at any one time by Holding or Subsidiaries of Holding which
have executed Security Agreements to Subsidiaries of Holding which have not
executed Security Agreements does not exceed $2,500,000;
(b) all such loans and advances are evidenced by a subordinated
promissory note and the schedule attached thereto executed by the Loan
Parties (as the same may from time to time with the consent of the Agent be
amended, supplemented or otherwise modified, the "Intercompany Note"),
substantially in the form of Exhibit T-1 to this Agreement;
(c) the Intercompany Note to the extent payable to Holding and any
Subsidiary of Holding organized in the UK, the US, France or Australia is
endorsed in blank, pledged to the Banks pursuant to the Pledge Agreements
or other pledge agreement in form and substance satisfactory to the Agent
and delivered to and held by the Agent;
(d) all such loans and advances are made and accepted solely for
ordinary business needs of such Loan Party;
(e) all such loans and advances are made and accepted at normal
commercial rates of interest for such credits; and
(f) the aggregate principal amount of all such loans and advances by
Loan Parties not organized in the UK, the US, France or Australia does not
at any one time exceed $250,000; the foregoing amount is included in, and
not additional to, that specified in clause (a) above.
8.6 [intentionally deleted]
8.7 Purchase or Sale Agreements. Neither Holding nor the Borrower will
enter into or be a party to, or permit any of their respective Subsidiaries to
enter into or be a party to (i) any contract for the purchase or use of
materials, supplies or other property or for the performance of services if such
contract requires that payment for such materials, supplies or other property,
or the use thereof, or for such services, shall be made by such member of the
Consolidated Group regardless of whether or not delivery is capable of being
made of such material, supplies or other property, or such services are
performed, or (ii) any contract for the sale or use of materials, supplies or
other property if such contract provides that payment to such member of the
Consolidated Group for such materials, supplies or other property or the use
thereof, shall be subordinated to or otherwise subjected to the prior payment of
any indebtedness (or any instrument evidencing such indebtedness) owed or to be
owed to any Person.
8.8 Consolidation and Merger. Neither Holding nor the Borrower will wind
up, liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation or permit any of their respective Subsidiaries so to do (or agree
to do any of the foregoing at any future time) except that (i) any wholly-owned
Subsidiary of the Borrower may merge into the Borrower if the Borrower shall at
all times be the continuing corporation, (ii) any wholly-owned Subsidiary of
Furmanite may merge into Furmanite if Furmanite shall at all times be the
continuing corporation, (iii) any Subsidiary of a Loan Party that is an
Insignificant Subsidiary may merge into any other Subsidiary that is an
Insignificant Subsidiary, (iv) any Insignificant Subsidiary may merge into a
Significant Subsidiary if (x) the Significant Subsidiary is the continuing
corporation and (y) the merging Insignificant Subsidiary has no liabilities
(contingent or otherwise) in excess of $100,000 (in the aggregate) (or an
equivalent amount in other currencies, computed at the Spot Rate) at the end of
its most recent fiscal quarter, (v) any wholly-owned Subsidiary of FOSI may
merge into another wholly-owned Subsidiary of FOSI; provided that (in the case
of clauses (iii) and (iv)) no Subsidiary that is organized under the laws of the
UK or US may merge into any Subsidiary that is not organized under the laws of
the UK or the US, and provided further that (in the case of clauses (iii) and
(v)) if the resulting Subsidiary is a Significant Subsidiary, it shall timely
comply with the provisions of Section 7.20.
8.9 Sale of Assets.
(a) Neither Holding nor the Borrower will convey, sell, lease or
otherwise dispose of (or agree to do any of the foregoing at any future
time), or permit any of their respective Subsidiaries so to do, (i) all or
a substantial part of its property or assets or any part of such property
or assets essential to the conduct of its business substantially as now
conducted, or (ii) any of its assets, except in the ordinary course of
business, (iii) the sale of obsolete equipment and obsolete inventory, and
(iv) other equipment that is no longer necessary for the ordinary business
of the Consolidated Group; provided however that Holding and its
Subsidiaries may convey, sell, lease or otherwise dispose of (any of the
foregoing, for purposes of this Section, a "Transfer") any of its assets if
(i) the Agent or the Required Banks shall have consented thereto
in writing, such consent not to be unreasonably withheld,
(ii) such assets are Transferred for a price, in cash, at least
equal to their fair market value (as determined in good faith by the
board of directors of Holding or the Borrower (as the case may be) and
(if any) of the selling Subsidiary), and
(iii) [intentionally deleted]; and
provided further the consent of the Agent or the Required Banks shall
not be required pursuant to the foregoing proviso for the Transfer of
any asset if (i) such asset (x) is obsolete and is no longer necessary
for the ordinary business of the Consolidated Group and the
consideration received from such Transfer (whether to the same Person
or affiliated group of Persons, or in any one or more of a series of
related transactions) is not greater than $100,000, or (y) is being
(and has been) replaced within 90 days of such Transfer by equipment
of at least comparable value and utility and on which the Agent (on
behalf of the Banks) has a first priority perfected Lien and no other
Person (except as consented to by the Agent) has a Lien, and (ii) only
as to situations where clause (x) (and not clause (y)) is applicable,
the book value of the asset or assets then being Transferred, when
combined with the aggregate book value at time of Transfer of all
assets Transferred by any member of the Consolidated Group from the
Closing Date to the date of such Transfer, is less than the greater of
(A) $250,000 (or an equivalent amount in other currencies, computed at
the Spot Rate) or (B) 10% of the Tangible Net Worth of the
Consolidated Group at the date of the proposed Transfer.
(b) Neither Holding nor the Borrower will sell, discount, transfer,
assign or otherwise dispose of any of its accounts receivable, notes
receivable, installment or conditional sales agreements or any other of its
rights to receive income or monies howsoever evidenced or permit any
Subsidiary or Guarantor to do so except pursuant to the Security Documents;
provided that nothing in this Section 8.9(b) shall prevent any Credit Party
from dealing with its "bad debt" in the manner it has customarily dealt
with same.
8.10 Purchase of Assets. Except as permitted by Section 8.9, neither
Holding nor the Borrower will purchase, lease or otherwise acquire all or any
substantial part of the property or assets of any Person, or permit any of their
respective Subsidiaries so to do, or purchase, lease or otherwise acquire
property or net assets in excess of $250,000 in the aggregate (other than in the
ordinary course of business) or an equivalent amount in other currencies
(computed at the Spot Rate), or permit any of their respective Subsidiaries so
to do.
8.11 Related Transactions.
(a) Neither Holding nor the Borrower will enter into any transaction
with any other member of the Consolidated Group or with any Affiliate of
any member of the Consolidated Group or an Associate of any such Affiliate
or with which any officer or director of any Credit Party or a Subsidiary
has a financial interest on more favorable terms than if such Person was
totally unrelated, or permit any of their respective Subsidiaries to so do
except such commissions, discounts and repayment terms in connection with
the furnishing of goods or services on a Consolidated Group basis as are
reasonable and customary in commercial practice.
(b) No Loan Party will make any payments, directly or indirectly, to
XANSER or any officer or director of XANSER or any principal stockholder of
XANSER, except as permitted by the XANSER Management Agreement or Section
8.11(a) or 8.15.
8.12 Subsidiaries.
(a) Neither Holding nor the Borrower will without the prior written
consent of the Agent sell, assign, transfer or otherwise dispose of, or in
any way part with control of, any shares of capital stock of any of their
respective Subsidiaries or any indebtedness or obligations of any character
of any of their respective Subsidiaries, or permit any of their respective
Subsidiaries so to do with respect to any shares of capital stock of any
other member of the Consolidated Group or any indebtedness or obligations
of any character of any member of the Consolidated Group, or issue, or
permit any member of the Consolidated Group to issue, any additional shares
of capital stock.
(b) Neither Holding nor the Borrower will organize or create (or
permit the organization or creation of), by investment or purchase or
otherwise, any Subsidiary without the prior written consent of the Agent,
such consent not to be unreasonably withheld; provided that if within 20
days after the Borrower has given written notice to the Agent of the
proposed organization or creation of a Subsidiary (or, if later, within 20
days after the date on which the Agent shall have received such additional
information related thereto as it shall have requested), the Agent shall
not have disapproved of such request or asked for additional information
related thereto, such consent of the Agent shall be deemed to have been
given.
8.13 [intentionally deleted]
8.14 Investments. Neither Holding nor the Borrower will invest in (by
capital contribution or otherwise), or acquire for investment or purchase or
make any commitment to purchase the obligations or stock of, any Person or
permit any of their respective Subsidiaries so to do, except (i) the purchase of
marketable direct or guaranteed obligations of the national governments of
France, the Netherlands, the UK and the US; (ii) stock or obligations issued to
a member of the Consolidated Group in settlement of claims against others by
reason of an event of bankruptcy or a composition or readjustment of debt or a
reorganization of any debtor of the Borrower or any Subsidiary; (iii)
certificates of deposit and banker's acceptances of any of the Banks or their
branches; (iv) [intentionally deleted]; (v) Commercial Paper rated P-1 or A-1 by
Standard & Poors ("S&P") or ▇▇▇▇▇'▇ Investors Service ("Moodys") or the
equivalent rating by any other rating agency nationally recognized in the US or
UK; and (vi) certificates of deposit and banker's acceptances of any bank with a
AA or better rating from Moodys or the equivalent rating by S&P or any other
rating agency nationally recognized in the US or UK. As used in this Agreement,
"Commercial Paper" shall mean short-term promissory notes due no later than 270
days from the date of issuance of each such note.
8.15 Dividends, Distributions and Purchases of Capital Stock.
(a) Except as set forth in Section 8.15(b), Holding will not declare
or pay any dividends (other than dividends payable in shares of its capital
stock), or return any capital to its stockholders as such or authorize or
make any other distribution, payment or delivery of property or cash to its
stockholders as such, or redeem, retire, purchase or otherwise acquire,
directly or indirectly, for a consideration (otherwise than in exchange
for, or from the proceeds of the substantially concurrent sale of, other
shares of capital stock of Holding), any shares of any class of its capital
stock now or hereafter outstanding, or redeem, return, purchase or
otherwise acquire, directly or indirectly, for a consideration, any
subordinated debt or make any payments on account of the principal thereof,
or set aside any funds for any of the foregoing purposes.
(b) Holding may pay dividends annually to holders of its ordinary
shares (as such) in an aggregate amount per Fiscal Year not in excess of
50% of the Net Income (Adjusted) of the Consolidated Group, but only if (x)
no Default or Event of Default exists on the date of payment (after giving
effect thereto), (y) such distribution is made no earlier than the date
that the certified Financial Statements for such Fiscal Year, in form and
substance satisfactory to the Agent and the Required Banks, have been
delivered to the Banks pursuant to Section 7.1(b) and no later than 30 days
after such date and (z) the sum of such dividends paid plus fees and
expenses paid under the XANSER Management Agreement plus any other payments
of indebtedness or other amounts or distributions (including but not
limited to repayment of any indebtedness owed by Holding to XANSER related
to the XANSER Management Agreement) does not exceed $2,500,000 during any
Fiscal Year or $210,000 during any calendar month.
(c) The Borrower may pay dividends annually to holders of its
preference shares (as such) in an aggregate amount per Fiscal Year not in
excess of $80,000 (or $20,000 in any fiscal quarter) so long as no Default
or Event of Default exists on the date of payment (after giving effect
thereto).
(d) Notwithstanding anything to the contrary contained herein, from
time to time, in one or more series of transactions, a Loan Party may pay
dividends to any other Loan Party and such dividends shall immediately be
used by the recipients thereof to make additional capital contributions to
or otherwise acquire and be issued shares of the capital stock of that Loan
Party. Such shares shall immediately be subject to the Pledge Agreements as
set forth in Section 6.5.
8.16 Leasebacks. Neither Holding nor the Borrower will enter into, or
permit any of their respective Subsidiaries to enter into, any arrangement with
any bank, insurance company or other lender or investor providing for the
leasing to any member of the Consolidated Group of real property (i) which at
the time has been or is to be sold or transferred by any member of the
Consolidated Group to such lender or investor, or (ii) which has been or is
being acquired from another person by such lender or investor or on which one or
more buildings or facilities have been or are to be constructed by such lender
or investor for the purpose of leasing such property to a member of the
Consolidated Group.
8.17 Covenant Election. The Borrower shall have a one time right to
irrevocably instate the covenants set forth in Sections 8.18(b) and 8.22(b) in
lieu of the covenants set forth in Sections 8.18(a) and 8.22(a) as the
applicable covenants under this Agreement (the "Covenant Election"). The
Borrower shall exercise the Covenant Election by giving written notice to the
Agent at least four Business Days' prior to the end of a fiscal quarter (the
"Covenant Election Notice") and the Covenant Election shall be effective as of
the end of (and the covenants set forth in Sections 8.18(b) and 8.22(b) shall be
applicable for) such fiscal quarter and all fiscal quarters thereafter (the
"Covenant Election Effective Date"). Prior to the Covenant Election Effective
Date, the covenants set forth in Sections 8.18(a) and 8.22(a) shall be
applicable.
8.18 Fixed Charge Coverage Ratio.
(a) Prior to the Covenant Election Effective Date:
(i) neither Holding nor the Borrower will permit the Fixed Charge
Coverage Ratio of the Consolidated Group to be less than 1.0 to 1 for
any 12-month period ending on September 30, 2002 or on the last day of
any fiscal quarter thereafter until and including December 31, 2003;
and
(ii) neither Holding nor the Borrower will permit the Fixed
Charge Coverage Ratio of the Consolidated Group to be less than 1.3 to
1 for any 12-month period ending on March 31, 2004 or on the last day
of any fiscal quarter thereafter.
(b) On or after the Covenant Election Effective Date, neither Holding
nor the Borrower will permit the Fixed Charge Coverage Ratio of the
Consolidated Group to be less than 1.3 to 1 for any 12-month period ending
on or after the Covenant Election Effective Date or on the last day of any
fiscal quarter thereafter.
8.19 Tangible Assets. The aggregate amount of Tangible Assets of all
members of the Consolidated Group that are organized in the UK, the US, France
or Australia (and any other jurisdiction agreed to in writing by the Agent in
its sole discretion) will be equal to or greater than 82% of the consolidated
Tangible Assets of the Consolidated Group. The aggregate gross revenues for the
most recent fiscal quarter for all members of the Consolidated Group that are
organized in the UK, the US, France or Australia (and any other jurisdiction
agreed to in writing by the Agent in its sole discretion) will constitute 82% or
more of the consolidated gross revenues of the Consolidated Group for such
fiscal quarter.
8.20 [intentionally deleted]
8.21 [intentionally deleted]
8.22 Total Debt: EBITDA.
(a) Prior to the Covenant Election Effective Date:
(i) for fiscal quarters ending on or before December 31, 2002,
neither Holding nor the Borrower will permit the ratio of (x) Total
Debt of the Consolidated Group at the end of any fiscal quarter to (y)
EBITDA of the Consolidated Group for the four fiscal quarters ending
on the date of such fiscal quarter to exceed 4.5 to 1; and
(ii) for fiscal quarters ending after December 31, 2002 and on or
before December 31, 2003, neither Holding nor the Borrower will permit
the ratio of (x) Total Debt of the Consolidated Group at the end of
any fiscal quarter to (y) EBITDA of the Consolidated Group for the
four fiscal quarters ending on the date of such fiscal quarter to
exceed 4.0 to 1; and
(iii) for fiscal quarters ending after December 31, 2003, neither
Holding nor the Borrower will permit the ratio of (x) Total Debt of
the Consolidated Group at the end of any fiscal quarter to (y) EBITDA
of the Consolidated Group for the four fiscal quarters ending on the
date of such fiscal quarter to exceed 3.0 to 1.
(b) For fiscal quarters ending on or after the Covenant Election
Effective Date, neither Holding nor the Borrower will permit the ratio of
(x) Total Debt of the Consolidated Group at the end of any fiscal quarter
to (y) EBITDA of the Consolidated Group for the four fiscal quarters ending
on the date of such fiscal quarter to exceed 3.0 to 1.
(c) In determining Total Debt for purposes of this Section 8.22, the
amount of "cash and equivalents" on the Borrower's and its Subsidiaries
consolidated balance sheet at the end of the relevant fiscal quarter shall
first be deducted.
8.23 Capital Expenditures.
(a) for the fiscal quarter ending September 30, 2002, neither Holding
nor the Borrower will make capital expenditures, or permit any of their
respective Subsidiaries so to do, unless, after giving effect thereto, the
aggregate amount of all such capital expenditures made by the Consolidated
Group in such fiscal quarter would not exceed 40% of EBITDA of the
Consolidated Group for such fiscal quarter; and
(b) for the two fiscal quarters ending on December 31, 2002, neither
Holding nor the Borrower will make capital expenditures, or permit any of
their respective Subsidiaries so to do, unless, after giving effect
thereto, the aggregate amount of all such capital expenditures made by the
Consolidated Group in such two fiscal quarters would not exceed 40% of
EBITDA of the Consolidated Group for such two fiscal quarters; and
(c) for the three fiscal quarters ending on March 31, 2003, neither
Holding nor the Borrower will make capital expenditures, or permit any of
their respective Subsidiaries so to do, unless, after giving effect
thereto, the aggregate amount of all such capital expenditures made by the
Consolidated Group in such three fiscal quarters would not exceed 40% of
EBITDA of the Consolidated Group for such three fiscal quarters; and
(d) for fiscal quarters ending on or after June 30, 2003, neither
Holding nor the Borrower will make capital expenditures, or permit any of
their respective Subsidiaries so to do, unless, after giving effect
thereto, the aggregate amount of all such capital expenditures made by the
Consolidated Group in the four fiscal quarters ending on the date of such
fiscal quarter would not exceed 40% of EBITDA of the Consolidated Group for
such four fiscal quarters.
For purposes of this Section 8.23, an amount equal to the present
value of any Capitalized Lease Obligations entered into by a Loan Party
after June 30, 2002 shall be deemed to be a capital expenditure during the
fiscal quarter in which such Capitalized Lease Obligations were entered
into.
8.24 Accounting Changes.
(a) Neither Holding nor the Borrower will make, or permit any of its
Subsidiaries to make, any significant change in accounting treatment and
reporting practices except as permitted or required by GAAP.
(b) Neither Holding nor the Borrower will change its fiscal year or
permit any of their respective Subsidiaries to change its fiscal year.
8.25 Employee Benefit Plans. (i) Neither Holding nor the Borrower will not
adopt, or permit any of its Subsidiaries to adopt, any Pension Plan or any other
Plan subject to Section 302 of ERISA or Section 412 of the Code, without the
Agent's consent, (ii) become obligated, or permit any of its Subsidiaries to
become obligated, to contribute to any Multiemployer Plan subject to Subtitle E
of Part IV of ERISA, without the Agent's consent, or (iii) allow, or permit any
of its Subsidiaries to allow, any Plan to fail to comply with the applicable
provisions of ERISA and the Code in any respect which would have a Material
Adverse Effect on the Borrower, or on the Borrower and its Subsidiaries taken as
a whole.
8.26 Compliance with ERISA. (i) Holding will not terminate, or permit any
of its Subsidiaries to terminate, any Pension Plan so as to result in any
material (in the opinion of the Agent or the Required Banks) liability of
Holding or any of its Subsidiaries to the PBGC, (ii) permit to exist for more
than 30 days the occurrence of any Reportable Event (as defined in Section 4043
of ERISA), or any other event or condition, which presents a material (in the
opinion of the Agent or the Required Banks) risk of such a termination by the
PBGC of any Pension Plan, (iii) [intentionally deleted], (iv) allow, or permit
any of its Subsidiaries to allow, any Plan to incur an "accumulated funding
deficiency" (within the meaning of Section 302 of ERISA or Section 412 of the
Code) for more than 30 days, whether or not waived, (v) engage, or permit any of
its Subsidiaries or any Plan to engage, in any "prohibited transaction" (within
the meaning of Section 406 of ERISA or Section 4975 of the Code) resulting in
any material (in the opinion of the Agent or the Required Banks and considered
by itself or together with all other such liabilities of Holding and all ERISA
Affiliates) liability to Holding or any ERISA Affiliate, (vi) allow, or permit
any of its Subsidiaries to allow, any Plan to fail to comply with the applicable
provisions of ERISA and the Code in any material respect for more than 30 days,
(vii) fail, or permit any of its Subsidiaries to fail, to make any required
contribution to any Multiemployer Plan, unless and to the extent only that the
validity thereof is being contested in good faith and by appropriate procedures
and such Loan Party or Subsidiary has set aside on its books adequate reserves
therefor in accordance with GAAP, or (viii) completely or partially withdraw, or
permit any of its Subsidiaries to completely or partially withdraw, from a
Multiemployer Plan, if such complete or partial withdrawal will result in any
material (in the opinion of the Agent or the Required Banks) withdrawal
liability under Title IV of ERISA.
8.27 Other Agreements. Without the prior written consent of the Agent,
neither Holding nor the Borrower will (or permit any of their respective
Subsidiaries to) amend, modify or terminate the Tax Allocation Agreement or
waive any right thereunder or fail to duly enforce the Tax Allocation Agreement.
8.28 Dormant Subsidiaries.
(a) No Dormant Subsidiary will engage in any business or activity.
(b) No Dormant Subsidiary will contract, create, incur or suffer to
exist any Indebtedness for Borrowed Money.
(c) Neither Holding nor any Subsidiary of Holding will make any loan
to any Dormant Subsidiary.
(d) No Subsidiary will merge into any Dormant Subsidiary.
(e) No Loan Party shall convey, sell, lease or otherwise transfer any
asset to any Dormant Subsidiary.
Section 9. EVENTS OF DEFAULT.
Upon the occurrence of any of the following specified events (each an
"Event of Default"):
9.1 Principal and Interest. The Borrower shall default in the due and
punctual payment of (i) any principal due on any Loan; or (ii) any interest on
any Loan or Note or in the due and punctual payment of Commitment commission or
other amounts due hereunder; or (iii) any repayment of any Reimbursement
Obligation or Deemed Disbursement or any interest payable thereon; provided that
failure to duly and punctually make an interest payment shall not be an Event of
Default under this Section 9.1 if such interest payment is paid within five days
after the date it is due and the Borrower has not been late in making an
interest payment on any of the Notes or in respect of the Loans more than once
in the preceding 12 months; or
9.2 Representations and Warranties. Any representation, warranty or
statement made by any Credit Party in any Loan Document to which such Credit
Party is a party or otherwise in writing by such Person in connection with any
of the foregoing, or in any certificate or statement furnished pursuant to or in
connection with any of the foregoing, shall be breached in a manner that could
reasonably be expected to have an adverse effect on the validity, payment,
performance or enforceability of the Loan Agreement on any of the other Loan
Documents or any obligation of a Credit Party hereunder or thereunder or shall
prove to be untrue in any material and adverse respect on the date as of which
made; or
9.3 Negative Covenants. Any Loan Party or any of their respective
Subsidiaries shall default in the due performance or observance of any term,
covenant or agreement on its part to be performed or observed pursuant to
Section 7.20 or Section 8; or
9.4 Other Covenants. Any Credit Party or any of their respective
Subsidiaries shall default in the due performance or observance of any term,
covenant or agreement on its part to be performed or observed pursuant to any of
the provisions of this Agreement (other than those referred to in Sections 9.1,
9.2 or 9.3) and such default (which shall be capable of cure) shall continue
unremedied for a period of 30 days after the earlier of the date on which the
Agent gives the Borrower notice of such default or on the date an officer of any
Credit Party (other than a Subsidiary that is an Insignificant Subsidiary)
becomes aware thereof; or
9.5 Other Obligations. Any indebtedness of any member of the Consolidated
Group (i) shall be duly declared to be or shall become due and payable prior to
the stated maturity thereof, or (ii) in respect of indebtedness in excess of
$500,000 (or the equivalent amount in any other currency, computed at the Spot
Rate) in an aggregate principal amount, shall not be paid as and when the same
becomes due and payable including any applicable grace period, or there shall
occur and be continuing any event which constitutes an event of default under
any instrument, agreement or evidence of indebtedness relating to any
indebtedness of any member of the Consolidated Group in excess of $500,000 (or
the equivalent amount in any other currency, computed at the Spot Rate) in
aggregate principal amount, the effect of which is to permit the holder or
holders of such instrument, agreement or evidence of indebtedness, or a trustee,
agent or other representative on behalf of such holder or holders, to cause the
indebtedness evidenced thereby to become due prior to its stated maturity; or
9.6 Ownership.
(a) XANSER shall at any time own less than 100% of the outstanding
capital stock of Holding; or any stock issued by Holding or any Subsidiary
of Holding shall be the subject of a Lien (other than Liens to the Agent
and the Banks hereunder); or
(b) A change has occurred in the stock ownership of XANSER under
Section 382 of the Code that, in the reasonable judgment of the Agent
exercised in good faith, limits (or in the future could limit) utilization
of the NOL by the US Guarantors in a manner having a Material Adverse
Effect with respect to the US Guarantors; or
9.7 Insolvency. Any Credit Party (references to "Credit Party" in this
Section 9.7, however, not to include any Insignificant Subsidiary) shall
dissolve or suspend or discontinue its business, or shall make an assignment for
the benefit of creditors or a composition with creditors, shall be unable or
admit in writing its inability to pay its debts as they mature, shall file a
petition in bankruptcy, shall be adjudicated insolvent or bankrupt, shall
petition or apply to any tribunal for the appointment of (or there shall be
appointed pursuant to any contract) any administrator, receiver, liquidator,
administrative receiver or trustee of or for it or any substantial part of its
property or assets, shall commence any proceedings relating to it under any
bankruptcy, reorganization, arrangement, readjustment of debt, receivership,
dissolution or liquidation law or statute of any jurisdiction, whether now or
hereafter in effect; or there shall be commenced against any Credit Party any
such proceeding which shall remain undismissed for a period of 90 days or more,
or any order, judgment or decree approving the petition in any such proceeding
shall be entered; or any Credit Party shall by any act or failure to act
indicate its consent to, approval of or acquiescence in, any such proceeding or
in the appointment of any administrator, receiver, liquidator, administrative
receiver or trustee of or for it or any substantial part of its property or
assets, or shall suffer any such appointment to continue undischarged or
unstayed for a period of 90 days or more; or any Credit Party shall take any
action for the purpose of effecting any of the foregoing; or any court of
competent jurisdiction shall assume jurisdiction with respect to any such
proceeding or a receiver or trustee or other officer or representative of a
court or of creditors, or any court, governmental officer or agency, shall under
color of legal authority, take and hold possession of any substantial part of
the property or assets of any Credit Party or there shall happen or exist under
the laws of any applicable jurisdiction, with respect to any Credit Party, any
event analogous to and having a substantially similar effect to any of the
foregoing events; or
9.8 Guarantee Agreements. The breach by any Guarantor of any term or
provision of the Guarantee Agreement to which it is a party, which default in
the reasonable judgment of the Agent or the Required Banks (exercised in good
faith) is material; or any Guarantee Agreement is at any time not in full force
and effect; or any "Default" or "Event of Default" (as defined in a Guarantee
Agreement) shall exist under such Guarantee Agreement; or any Guarantor shall
assert that it is not liable as a guarantor under its Guarantee Agreement; or
9.9 Security Documents. The breach by any Credit Party of any term or
provision of any Security Document or Subordination Agreement to which such
Person is a party, which default could reasonably be expected to have an adverse
effect on the validity, payment, performance or enforceability of this Agreement
or any of the other Security Documents or Loan Documents or any obligation of a
Loan party hereunder or thereunder, or if any such Security Document or Loan
Document is at any time not in full force and effect; or any "Default" or "Event
of Default" (as defined in any such Security Document) shall exist under such
Security Document; or any Security Document shall fail to grant to the Agent on
behalf of the Banks the Lien and security interest purported to be created
thereby (provided that if any Security Document fails to so grant such Lien or
security interest solely as a result of a change of law and such failure is
capable of remedy, then such failure shall not be considered an Event of Default
under this Section 9.9 for a period of 10 days if such failure is remedied
within that period) unless such failure results solely from the failure or
refusal of the Agent to take some action which is in the sole and absolute
control and discretion of the Agent (for example, to file a continuation
statement) and such failure or refusal continues after reasonable written
request by Holding or the Borrower; or
9.10 Section 6 Conditions. Any of the conditions set forth in Section 6
shall not have been complied with on or before September 13, 2002; or
9.11 Judgments.
(a) Any final non-appealable judgment for the payment of money in
excess of $1,250,000 (or the equivalent thereof in any currency, computed
at the Spot Rate), excluding any amounts payable or reimbursable by
financially sound insurance companies or by third parties whose Commercial
Paper is rated P-1 or A-1 by S&P or Moodys (or the equivalent rating by any
other rating agency nationally recognized in the US or the UK), shall be
rendered against any member of the Consolidated Group; or
(b) Final judgment for the payment of money in excess of $1,250,000
(or the equivalent thereof in any currency, computed at the Spot Rate)
shall be rendered against any member of the Consolidated Group, and the
same shall remain undischarged for a period of 30 days during which
execution shall not be effectively stayed or contested in good faith;
then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing the Agent may (and shall, if instructed in
writing by the Required Banks) by written notice to the Borrower: (i)
declare the principal of and accrued interest on the Loans to be, whereupon
the same shall forthwith become, due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived
by the Borrower and Holding; and/or (ii) declare the commitments of the
Banks to make the Loans hereunder terminated, whereupon such commitments of
the Banks shall forthwith terminate immediately; provided that if any Event
of Default described in Section 9.7 shall occur with respect to the
Borrower, the result which would otherwise occur only upon the giving of
written notice by the Agent or the Required Banks to the Borrower as herein
described shall occur automatically, without the giving of any such notice.
Section 9A. GUARANTY.
In order to induce the Banks and the Agent to enter into this Agreement and
to extend credit hereunder and in recognition of the direct benefits to be
received by Holding from the proceeds of the Loans, Holding agrees with the
Banks and the Agent as follows.
9A.1. The Guaranty. Holding hereby unconditionally and irrevocably
guarantees as primary obligor and not merely as surety the full and prompt
payment when due (whether upon maturity, by acceleration or otherwise) of any
and all Obligations of the Borrower (including without limitation all interest
which may be payable thereon prior to or during the pendency of any insolvency
or similar proceeding with respect to the Borrower). If any or all of such
Obligations become due and payable hereunder, Holding unconditionally promises
to pay such indebtedness to the Agent on behalf of the Banks, or order, on
demand, together with any and all expenses which may be incurred by the Banks or
the Agent in collecting any of the indebtedness. If the Agent or the Banks are
prevented by law from accelerating any of the indebtedness in accordance with
the terms of any agreement or instrument governing same, the Agent shall be
entitled to receive hereunder from Holding, upon demand therefor, the sum which
would have otherwise been due had such acceleration occurred. The word
"indebtedness" is used in this Section 9A in its most comprehensive sense and
includes any and all advances, debts, obligations and liabilities of the
Borrower arising in connection with the Obligations, in each case heretofore,
now or hereafter made, incurred or created, whether voluntarily or
involuntarily, absolute or contingent, liquidated or unliquidated, determined or
undetermined, whether or not such indebtedness is from time to time reduced, or
extinguished and thereafter increased or incurred, whether the Borrower may be
liable individually or jointly with others, whether or not recovery upon such
indebtedness may be or hereafter become barred by any statute of limitations,
and whether or not such indebtedness may be or hereafter become otherwise
unenforceable. Without limiting the generality of the foregoing, Holding
acknowledges that this guaranty is a guaranty of payment, not a guaranty of
collection.
9A.2 Bankruptcy. Additionally, Holding unconditionally and irrevocably
guarantees the payment of any and all Obligations, whether or not due or payable
by the Borrower, upon the occurrence in respect of the Borrower of any of the
events specified in Section 9 hereof and unconditionally promises to pay such
indebtedness to the Agent on behalf of the Banks, or order, on demand without
setoff or counterclaim.
9A.3 Nature of Liability. The liability of Holding hereunder is exclusive
and independent of any security or other guaranty of the indebtedness of the
Borrower whether executed by Holding or by any other party, and the liability of
Holding hereunder shall not be affected or impaired by (a) any direction as to
application of payment by the Borrower or by any other party, or (b) any other
continuing or other guaranty, undertaking or maximum liability of a guarantor or
of any other party as to the indebtedness of the Borrower, or (c) any payment on
or in reduction of any such other guaranty or undertaking, or (d) any
dissolution or termination of the Borrower, or (e) any payment made to the Agent
or to any or all Banks on the indebtedness which such Agent, Bank or Banks are
required to repay to the Borrower pursuant to a court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding, and
Holding waives any right to the deferral or modification of its obligations
hereunder by reason of any such proceeding.
9A.4 Independent Obligation.
(a) The obligations of Holding hereunder are independent of the
obligations of any other guarantor or the Borrower, and any security for or
other guarantee of the indebtedness of the Borrower, and a separate action
or actions may be brought and prosecuted against Holding whether or not
action is brought against any other guarantor or the Borrower or any
security held by the Agent and without pursuing any other remedy, and
whether or not any other guarantor or the Borrower be joined in any such
action or actions. Holding waives, to the fullest extent permitted by law,
the benefit of any statute of limitations affecting its liability hereunder
or the enforcement thereof. Any payment by the Borrower or other
circumstance which operates to toll any statute of limitations as to the
Borrower shall operate to toll the statute of limitations as to Holding.
The Agent's and Banks' rights under this Section 9A will not be exhausted
by any action or inaction by the Agent or the Banks until all of the
indebtedness has been indefeasibly paid in full.
(b) The liability of Holding hereunder is not affected or impaired by
any direction or application of payment by the Borrower or by any other
party, or by any other guarantee or undertaking of Holding or any other
party as to the indebtedness of the Borrower, by any payment on, or in
reduction of, any such other guarantee or undertaking, by the termination,
revocation or release of any obligations hereunder or of any other
guarantor, or by any payment made to the Agent or the Banks on the
indebtedness which the Agent or the Banks repay to the Borrower or any
other guarantor or other person or entity pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, or any other fact or circumstance which would otherwise excuse
the obligation of a guarantor or surety, and Holding waives any right to
the deferral or modification of Holding's obligations hereunder by reason
of any such proceeding, fact or circumstance. This Section 9A shall
continue to be effective in accordance with its terms, or be reinstated, as
the case may be, if at any time payment, or any part thereof, of or with
respect to any of the indebtedness is rescinded or must otherwise be
restored or returned by the Agent or a Bank upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Borrower or
any other payor thereof, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for,
the Borrower or any other payor thereof or any substantial part of its
property, or otherwise, all as though such payments had not been made.
9A.5 Authorization. Holding authorizes the Agent and the Required Banks
without notice or demand, and without affecting or impairing its or their
liability hereunder, from time to time to (a) renew, compromise, extend,
increase, accelerate or otherwise change the time for payment of, or otherwise
change the terms, of the Obligations of the Borrower or any part thereof in
accordance with this Agreement, including any increase or decrease of the rate
of interest thereon, (b) take and hold security from the Borrower, any guarantor
or any other party for the payment of this guaranty or the indebtedness and
exchange, enforce, waive and release any such security or accept additional or
substituted security, (c) apply such security and direct the order or manner of
sale thereof as the Agent in its discretion (subject to the other provisions of
this Agreement) may determine and (d) release, add or substitute any one or more
endorsers, guarantors or other obligors. Any modifications, renewals and
extensions of the indebtedness may be made at any time by the Agent on behalf of
the Banks, before or after any termination of this Agreement, and Holding shall
be fully liable for any such modifications, renewals or extensions. The Agent on
behalf of the Banks may take any of the foregoing actions upon any terms and
conditions as the Agent may elect, without giving notice to Holding or obtaining
the consent of Holding and without affecting the liability of Holding to the
Agent or the Banks.
9A.6 Reliance. It is not necessary for the Banks or the Agent to inquire
into the capacity or powers of the Borrower or the officers, directors, partners
or agents acting or purporting to act on its behalf, and any indebtedness made
or created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder. Holding assumes full responsibility for keeping fully
informed of the financial condition of the Borrower and all other circumstances
affecting the Borrower's ability to perform its obligations to the Agent and the
Banks, and agrees that neither the Agent nor any Bank will have any duty to
report to Holding any information which the Agent or any Bank receives about the
Borrower's financial condition or any circumstances bearing on its ability to
perform, and expressly waives any right to receive such information and any
defense based upon failure to receive such information.
9A.7 Subordination.
(a) Any indebtedness of the Borrower now or hereafter held by Holding,
whether in connection with this Section 9A or other provisions of this
Agreement, or whether completely independent of this Agreement and the
indebtedness, is hereby subordinated to the indebtedness of the Borrower to
the Banks; provided that so long as no Default or Event of Default exists
(both before and after giving effect to any payment of principal or
interest proposed to be made on such subordinated indebtedness), the
Borrower may pay to Holding regularly-scheduled interest and principal
payments required by its terms to be made on such subordinated
indebtedness. Holding hereby covenants with the Agent and the Banks that,
except as the Agent may otherwise agree, Holding shall not be entitled to,
and shall not, demand or receive any payment in respect of any indebtedness
of the Borrower to Holding (whether of principal, interest thereon or
otherwise) or demand the creation, or receive the benefit, of any
encumbrance or other Lien over or any guarantee or indemnity in respect of
any indebtedness of the Borrower to Holding or commence any proceeding
against the Borrower or take any action in respect of any indebtedness of
the Borrower to Holding (including, without limitation, the exercise of any
right of set-off, counterclaim or lien, or any right to declare any default
or "event of default" or any action or steps with a view to (or otherwise
in connection with) the winding-up, dissolution, receivership or
administration of the Borrower). Prior to the transfer by Holding of any
note or negotiable instrument evidencing any indebtedness of the Borrower
to Holding, Holding shall ▇▇▇▇ such note or negotiable instrument with a
legend that the same is subject to this subordination.
(b) Holding hereby covenants with the Agent and the Banks and agrees
and declares that:
(i) in the event of Holding receiving any payment or any other
benefit in breach of Section 9A.7(a), Holding shall forthwith notify
the Agent of the receipt and, pay to the Agent on behalf of the Banks,
all sums which shall have been received by it in consequence of such
breach and until such payment to the Agent, Holding shall hold the
payment or other benefit so received by it in trust for the Banks;
(ii) in the event of any indebtedness being discharged by set-off
in breach of Section 9A.7(a), it shall forthwith notify the Agent of
the discharge and pay to the Agent on behalf of the Banks an amount
equal to the amount of the discharge; and
(iii) it shall forthwith pay to the Agent on behalf of the Banks,
and it shall hold in trust for the Banks pending such payment, any
amount or other distribution of assets of any kind or character
received by it (whether in cash, property, securities or otherwise) on
a winding-up, dissolution, receivership or administration of the
Borrower.
(c) Holding hereby agrees with the Agent and the Banks that it will at
its own expense do all such things as the Agent may require as being
necessary or desirable to transfer to the Agent all payments or benefits to
be made pursuant to Section 9A.7(b) including endorsements and execution of
formal transfers, and will pay any costs and stamp duties in connection
therewith.
(d) If, for any reason, a trust in favor of the Banks under this
Section 9A.7 is invalid or unenforceable, Holding shall from time to time
promptly pay and deliver to the Agent on behalf of the Banks an amount
equal to the amount of any payment or benefit which it would otherwise have
been obliged to hold in trust for the Banks.
9A.8 Waivers of Defenses. Holding waives: (a) all statutes of limitation as
to the indebtedness, this Agreement or otherwise as a defense to any action
brought against Holding by the Agent or any Bank, to the fullest extent
permitted by law; (b) any defense based upon any legal disability of the
Borrower or any discharge or limitation of the liability of the Borrower to the
Agent or the Banks, whether consensual or arising by operation of law or any
bankruptcy, insolvency, or debtor-relief proceeding, or from any other cause;
(c) presentment, demand, protest and notice of any kind; (d) any defense based
upon or arising out of any defense which the Borrower may have to the payment or
performance of any part of the indebtedness; (e) any defense based upon any
disbursements by the Agent or the Banks to the Borrower pursuant to any
agreements or instruments governing the indebtedness whether same be deemed an
additional advance or be deemed to be paid out of any special interest or other
fund accounts, as constituting unauthorized payments hereunder or amounts not
guaranteed by this Section 9A; (f) all rights to participate in any security
held by the Agent or the Banks for the indebtedness; (g) irregularity or
unenforceability of any agreement or instrument representing or governing the
indebtedness; (h) any request that the Agent or a Bank be diligent or prompt in
making demands hereunder or under any agreement or instrument representing or
governing the indebtedness; and (i) any other defense (except the defense that
the indebtedness has been indefeasibly paid in full) which, under applicable
law, would release the obligation of a guarantor or surety, until the
indebtedness has been indefeasibly paid in full.
9A.9 Waiver of Subrogation. Holding hereby irrevocably waives any claim or
other rights which it may now have or hereafter acquire against the Borrower or
any other guarantor that arise from the existence, payment, performance or
enforcement of Holding's obligations under this Agreement or any other Loan
Document, including (without limitation) any right of subrogation,
reimbursement, exoneration, contribution, indemnification, any right to
participate in any claim or remedy of the Banks and the Agent against the
Borrower or any other guarantor or any collateral which the Agent or any Bank
now has or hereafter acquires, whether or not such claim, remedy or right arises
in equity, or under contract, statute or common law including (without
limitation) the right to take or receive from the Borrower, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other rights. If any amount
shall be paid to Holding in violation of the preceding sentence and the
Obligations shall not have been paid in full, such amount shall be deemed to
have been paid to Holding for the benefit of, and held in trust for the benefit
of, the Banks and the Agent and shall forthwith be paid to the Agent on behalf
of the Banks to be credited and applied upon the Obligations, whether matured or
unmatured, in accordance with the terms of this Agreement. Holding acknowledges
that it will receive direct and indirect benefits from the financing
arrangements contemplated by this Agreement and that the waiver set forth in
this Section 9A.9 is knowingly made in contemplation of such benefits.
9A.10 [intentionally deleted]
9A.11 Costs and Expenses. In addition to the amounts guaranteed hereunder,
Holding agrees to pay the Agent's and the Banks' reasonable out-of-pocket costs
and expenses, including but not limited to legal fees and disbursements,
incurred in any effort to collect or enforce any of the indebtedness or this
Section 9A, whether or not any lawsuit is filed. Until paid to the Agent or the
Banks, such sums will bear interest at the highest rate of interest borne by any
of the Loans plus 2%; provided that if such interest exceeds the maximum amount
permitted to be paid under applicable law, then such interest shall be reduced
to such maximum permitted amount. Interest accrued hereunder pursuant to this
paragraph shall be payable on demand and shall be calculated on the basis of the
actual number of days elapsed and a 360-day year.
Section 10. REPRESENTATIONS AND WARRANTIES.
In order to induce the Agent and the Banks to enter into this Agreement and
to make the Loans and issue the Letters of Credit provided for herein, each of
Holding and the Borrower makes the following representations, covenants and
warranties, which representations, covenants and warranties shall survive the
execution and delivery of this Agreement and the other documents and instruments
referred to herein:
10.1 Status; Validity.
(a) Each member of the Consolidated Group is a duly organized and
validly existing corporation in good standing under the laws of the
jurisdiction of its incorporation and has the corporate power and authority
to own or hold under lease its property and assets, to transact the
business in which it is engaged, to enter into and perform this Agreement
and the other Loan Documents to which it is party, and, as to the Borrower,
to borrow hereunder. Each member of the Consolidated Group is duly
qualified or licensed as a foreign corporation in good standing in (or
taken such comparable action as is required under the laws of) each
jurisdiction where failure to so qualify would have a Material Adverse
Effect on FAI, FOSI, Holding, the Borrower, or any Significant Subsidiary
of the Consolidated Group. A true and complete list of all Subsidiaries of
XANSER, Holding, FAI, FOSI and the Borrower as of the Closing Date, showing
the percentage ownership interest of XANSER, Holding, FAI, FOSI and the
Borrower, is set forth in Schedule 10.5 to this Agreement. All Subsidiaries
of Holding that are Insignificant Subsidiaries on the Closing Date are
denoted with an asterisk on said schedule.
(b) The execution, delivery and performance by the Credit Parties of
this Agreement, the other Loan Documents to which each is party, and the
other documents, agreements or instruments provided for therein to which
each is party, the consummation of the transactions contemplated thereunder
and the use of the proceeds of the Loans (and of any loans represented by
the Intercompany Note) have been duly authorized by all necessary corporate
and stockholder action. This Agreement, the other Loan Documents and the
other documents, agreements or instruments provided for therein to which
each is party are the legal, valid and binding obligations of the Credit
Parties party thereto, enforceable in accordance with their respective
terms subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization and similar laws affecting the enforcement of creditors'
rights generally and to general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
10.2 Compliance with Other Instruments. No member of the Consolidated Group
is in material default under any Material Agreement to which it is a party, and
neither the execution, delivery or performance of this Agreement and the other
Loan Documents, nor the consummation of the transactions herein or therein
contemplated, nor compliance with the terms and provisions hereof or thereof,
will contravene any provision of law, statute, rule or regulation to which
XANSER or any member of the Consolidated Group is subject or any judgment,
decree, franchise, order or permit applicable to XANSER or any member of the
Consolidated Group or will conflict or will be inconsistent with or will result
in any breach of, any of the terms, covenants, conditions or provisions of, or
constitute a default under, or, except as provided by the Security Documents,
result in the creation or imposition of (or the obligation to create or impose)
any Lien upon any of the property or assets of any member of the Consolidated
Group pursuant to the terms of any indenture, mortgage, deed of trust or
Material Agreement to which XANSER or any member of the Consolidated Group is a
signatory or by which XANSER or any member of the Consolidated Group is bound or
to which XANSER or any member of the Consolidated Group may be subject or
violate any provision of the certificate of any Charter Document of XANSER or
any member of the Consolidated Group.
10.3 Litigation. There are no actions, suits or proceedings pending or, to
the best of knowledge of Holding or the Borrower, threatened, against or
affecting any member of the Consolidated Group before any court or before any
governmental or administrative body or agency, which, if adversely determined,
would have a Material Adverse Effect on FAI, the Borrower, or on the
Consolidated Group. The litigation schedule delivered on the Closing Date
pursuant to Section 6.9(b) is a true and correct list and analysis of all
actions, suits and proceedings pending (and, to the best of knowledge of Holding
and the Borrower, threatened) on that date against any Credit Party or any of
their respective assets or by which any Credit Party is otherwise affected.
10.4 Compliance with Law. Except for matters which will not cause or result
in a Material Adverse Change in FAI, the Borrower, or in the Consolidated Group:
(a) all business and operations of each member of the Consolidated Group have
been and are being conducted in accordance with all applicable laws, rules and
regulations of all Federal, state, local and other governmental authorities; (b)
each member of the Consolidated Group has obtained all permits, licenses and
authorizations, or consents which are otherwise necessary, for such Person to
conduct its business; and (c) no member of the Consolidated Group is a party to,
has been threatened with, and there are no facts existing as a basis for any
governmental or other proceeding which might result in a suspension, limitation
or revocation of any such permit, license or authorization.
10.5 Capitalization of Borrower.
(a) On and after the Closing Date: (i) XANSER will own 100% of the
issued and outstanding capital stock of Holding; (ii) Holding will own 100%
of the issued and outstanding capital stock of FAI and FOSI; (iii) Holding
will own all of the issued and outstanding capital stock of the Borrower
other than 169,425 preference shares; and (iv) Holding will at all times
control the Borrower.
(b) Schedule 10.5 hereto is a true, correct and complete listing as of
the Closing Date (as to each member of the Consolidated Group) of such
Person's authorized capital stock, the par value of same, and the number of
such shares issued and outstanding. All of the shares listed on said
schedule as outstanding have been duly and validly issued, are fully paid
and nonassessable, are outstanding as of the Closing Date, are owned
beneficially and of record as indicated on said schedule, and are owned
free and clear of all Liens other than Liens in favor of the Agent and the
Banks pursuant to the Security Documents. Where a Subsidiary is not 100%
owned by a member of the Consolidated Group, the percentage of capital
stock owned by each shareholder of such Subsidiary is also shown on such
schedules.
(c) No member of the Consolidated Group has outstanding on the Closing
Date any option, warrant, bonds, debentures or other right, put, call or
commitment to issue, or any obligation or commitment to purchase any of its
authorized capital stock, or any securities convertible into or
exchangeable for any of its authorized capital stock.
(d) As of the Closing Date, FAI has no Subsidiaries.
10.6 Governmental Approvals. Except for those listed in Schedule 10.6 to
this Agreement, each of which has been duly obtained and is in full force and
effect, no order, permission, consent, approval, license, authorization,
registration or validation of, or filing with, or exemption by, any Government
Authority, or any stock exchange or other governmental or non-governmental
regulatory authority (US or UK or otherwise) or any other Person, is required to
authorize, or is required in connection with the execution, delivery and
performance of this Agreement, the other Loan Documents by XANSER or any member
of the Consolidated Group, or the taking of any action hereby or thereby
contemplated.
10.7 Federal Reserve Margin Regulations; Proceeds.
(a) No Credit Party is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of
purchasing or carrying any margin stock (within the meaning of Regulation U
of the Board of Governors of the Federal Reserve System). No part of the
proceeds of the Loans or any obligations in connection with which any
Letter of Credit is issued will be used to purchase or carry any such
margin stock or to extend credit to others for the purpose of purchasing or
carrying any such margin stock.
(b) The proceeds of the Revolving Credit Loans shall be used solely
for general corporate purposes, including acquisition and capital
expenditure needs, of the Borrower.
10.8 Taxes.
(a) All material tax returns of any nature whatsoever, including but
not limited to, all US and UK income, payroll, stock transfer, and excise
tax returns and all appropriate state and local income, sales, excise,
payroll, franchise and real and personal property tax returns, and
corresponding returns under the laws of any jurisdiction, which are
required to be filed by any member of the Consolidated Group have been or
will be filed by the due date or extended due date of such returns.
(b) Except for amounts which in the aggregate do not exceed $250,000
(or the equivalent thereof in other currencies), all tax amounts and other
related liabilities (including interest and penalties) due and payable with
respect to any member of the Consolidated Group have been paid.
10.9 Investment Company Act. No Credit Party nor the entering into of the
Loan Documents is subject to any of the provisions of the Investment Company Act
of 1940, as amended.
10.10 Properties of the Borrower.
(a) No member of the Consolidated Group owns any real property other
than the Sites (UK) which are owned by FIL. Except as set forth in Schedule
10.10 hereto, there are no patents, trademarks or copyrights, or any trade
names (except the trade name "Furmanite"), of any member of the
Consolidated Group that are material to such Person's business or
operations. The only members of the Consolidated Group which own any
patents, trademarks, copyrights or trade names, including the trade name
"Furmanite", are Holding, FAI and FIL. Schedule 10.10 to this Agreement
sets forth all jurisdictions (and the offices therein) where the trade name
"Furmanite" has been registered or application therefor made. All Material
Agreements or similar commitments of members of the Consolidated Group are
in full force, none of the parties thereunder are in material default
thereunder and no written notice of default has been given or received.
Each member of the Consolidated Group has full, valid and existing right,
title and interest (in fee simple where applicable) to all of its material
real and personal property and all tangible and intangible rights, and the
ownership rights of such Person in and to all of such tangible and
intangible rights are subject to no material liens, encumbrances, pledges
or burdens other than those listed on Schedule 8.2(g) to this Agreement,
which security interests shall be terminated on and as of the Closing Date.
(b) Neither Holding, FAI nor any US Subsidiary of either owns or has
any rights to any property located in the UK or otherwise outside the US.
Neither the Borrower nor any UK Subsidiary of the Borrower owns or has any
rights to any property located in the US or otherwise outside the UK
(except for equipment of the Borrower with an aggregate net book value of
less than $750,000 as to which, whenever such property is outside a
jurisdiction where the Banks have a first priority security interest in
same, the Borrower will take such actions and sign and file such financing
statements or other documents as shall be necessary to create (or maintain)
for the Banks such first priority perfected security interest).
10.11 Financial Condition.
(a) There are no material liabilities or any material unrealized or
anticipated losses from unfavorable commitments which are not disclosed in
the Financial Statements referred to in Section 10.11(b).
(b) The audited consolidated Financial Statements of FAI, and of the
Borrower and its Subsidiaries, and of Holding and its Subsidiaries, for the
fiscal year ended December 31, 2001 have been delivered to the Banks and
have been prepared in accordance with GAAP and fairly present the financial
condition and the results of operations of FAI, and of the Borrower and its
Subsidiaries, of Holding and its Subsidiaries, respectively, for the
periods covered thereby.
(c) There has been no Material Adverse Change in FAI, the Borrower or
any Significant Subsidiary, or the Consolidated Group, since December 31,
2001.
(d) At the time of, and after giving effect to, the making of each
Loan and the issuance of each Letter of Credit, each Credit Party is
Solvent, and (y) possesses, in the opinion of Holding and the Borrower,
sufficient capital to conduct the business in which it is engaged or
presently proposes to engage.
10.12 Environmental Matters. Except as disclosed in the Audits:
(a) To the best of knowledge of Holding and the Borrower, each member
of the Consolidated Group (and any predecessor in interest of any of them)
has been and continues to be in compliance with all applicable
Environmental Laws;
(b) Each member of the Consolidated Group has obtained all material
permits and approvals required under Environmental Laws, including all
material environmental, health and safety permits, licenses, approvals,
authorization, variances, agreements, and waivers of Government Authorities
("Permits") necessary for the conduct of its business and the operation of
its facilities, and all such Permits are in good standing and each member
of the Consolidated Group is in compliance with all material terms and
conditions of such Permits;
(c) No member of the Consolidated Group nor any of their respective
Properties or operations is subject to any outstanding written order from
or agreement with any Government Authority or other Person or is subject to
any judicial or docketed administrative proceeding respecting any (x)
Environmental Law, (y) Remedial Action or (z) Environmental Claim or
Environmental Costs;
(d) To the best of knowledge of Holding and the Borrower, there are no
conditions or circumstances now or formerly associated with any Property or
operations by any member of the Consolidated Group (or any predecessor in
interest of any of them) which may prevent or interfere with compliance by
such member of the Consolidated Group with all applicable Environmental
Laws or form the basis of any Environmental Claim or give rise to
Environmental Costs;
(e) No Environmental Claim (including, without limitation, in respect
of any alleged violation of any Environmental Laws) is pending or (to the
best of knowledge of Holding and the Borrower) threatened against, or has
been received by, any member of the Consolidated Group;
(f) No Environmental Lien and no unrecorded Environmental Lien has
attached to any Property of any member of the Consolidated Group and, to
the best of knowledge of Holding and the Borrower, no action has been taken
by any Person which could subject any such Property to any Environmental
Lien;
(g) The Audits listed in Schedule 10.12 to this Agreement constitute
the only environmental audits or reports undertaken or received by any
member of the Consolidated Group on or prior to the Closing Date with
respect to Properties of members of the Consolidated Group;
(h) To the best of knowledge of Holding and the Borrower, neither
Holding nor any US Subsidiary (nor any predecessor in interest of any of
them) has transported or arranged for the transportation of any Contaminant
to any location which is (i) listed on the National Priorities List under
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, (ii) listed for possible inclusion on the National
Priorities List by the United States Environmental Protection Agency, or
(iii) listed on any similar state list or (iv) to the best of knowledge of
Holding and the Borrower, the subject of federal, state or local
enforcement actions or other investigations which may lead to Environmental
Claims against any member of the Consolidated Group or the imposition of
Environmental Costs on any member of the Consolidated Group; and
(i) To the best of knowledge of Holding and the Borrower, no member of
the Consolidated Group is required to place any notice of restriction
relating to the presence of any Contaminant on, in, under or emanating from
any property, in any deed to such Property.
10.13 Disclosure. Neither this Agreement nor any Loan Document nor any
statement, list, certificate or other document or information, nor any Schedules
to this Agreement, delivered or to be delivered to the Agent or the Banks
contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary to make statements contained herein
or therein, in light of the circumstances in which they are made, not
misleading.
10.14 Compliance with ERISA. Holding and each ERISA Affiliate and each Plan
and the trusts maintained pursuant to such plans are in compliance in all
material respects with the presently applicable provisions of Sections 401
through and including 417 of the Code, and of ERISA and (i) no event which
constitutes a Reportable Event as defined in Section 4043 of ERISA (other than a
Reportable Event described in paragraph (b)(2), (3), (7), (8) or (9) of Section
4043 of ERISA as to which the 30-day notice requirement of C.F.R.? 2615.3(a) has
been waived by the Department of Labor) has occurred and is continuing with
respect to any Plan which is or was covered by Title IV of ERISA, (ii) no Plan
which is subject to Part 3 of Subtitle B of Title 1 of ERISA has incurred any
"accumulated funding deficiency" (within the meaning of Section 302 of ERISA or
Section 412 of the Code) whether or not waived, and (iii) no written notice of
liability has been received with respect to any member of the Consolidated Group
for any "prohibited transaction" (within the meaning of Section 4975 of the Code
or Section 406 of ERISA), nor has any such prohibited transaction resulting in
liability to any member of the Consolidated Group occurred.
No member of the Consolidated Group or any ERISA Affiliate (i) has incurred
any liability to the PBGC (or any successor thereto under ERISA), or to any
trustee of a trust established under Section 4049 of ERISA, in connection with
any Plan (other than liability for premiums under Section 4007 or ERISA), (ii)
has incurred any withdrawal liability under Subtitle E of Title IV of ERISA in
connection with any Plan which is a Multiemployer Plan, nor (iii) has
contributed or has been obligated to contribute on or after September 26, 1980,
to any "multiemployer plan" (within the meaning of Section 3(37) of ERISA) which
is subject to Title IV of ERISA.
The consummation of the transactions contemplated by this Agreement (i)
will not give rise to any liability on behalf of Holding or its ERISA Affiliates
under Title IV of ERISA to the PBGC (other than ordinary and usual PBGC premium
liability), to the trustee of a trust established pursuant to Section 4049 of
ERISA, or to any Multiemployer Plan, and (ii) will not constitute a "prohibited
transaction" under Section 406 of ERISA or Section 4975 of the Code.
10.15 The Security Documents.
(a) Each Security Document when delivered will grant a security
interest or lien in the properties or rights intended to be covered thereby
(the "Collateral") which (i) will constitute a valid and enforceable
security interest under (A) the Uniform Commercial Code of the State (x) in
which the Collateral is located and (y) by which any Security Document is
governed (as applicable, the "UCC"), or (B) as to Security Documents
governed by English law, the applicable provisions of English law (the "UK
Statutes"); (ii) will be entitled to all of the rights, benefits and
priorities provided by (A) the UCC or (B) as to those Security Documents
governed by English law, the UK Statutes; and (iii) when such Security
Documents or financing statements with respect thereto are filed and
recorded as required by the UCC (or, in the case of those Security
Documents governed by English law, duly registered pursuant to the
Companies ▇▇▇ ▇▇▇▇, the Land Registration ▇▇▇ ▇▇▇▇ and the Land Charges Act
(1972), as appropriate), will be superior and prior to the rights of all
third Persons now existing or hereafter arising under the laws of the US,
the UK and any subdivision of either (based on the laws in effect, and any
laws already passed but not yet in effect, on the date on which such
representation is being made) whether by way of mortgage, pledge, lien,
security interest, encumbrance or otherwise except for Permitted Liens and
the other Liens referred to in Section 8.2(g). All such action as is
necessary in law has been taken, or prior to the Closing Date will have
been taken (except as otherwise contemplated by Section 7.20 hereof), to
establish and perfect the security interest of the Agent and the Banks in
the Collateral and to entitle the Banks or the Agent on behalf of the Banks
to exercise the rights and remedies provided in each of the Security
Documents and the UCC or the UK Statutes, as applicable, and (except as
specified in the first parenthetical of clause (iii) above) no filing,
recording, registration or giving of notice or other action is required in
connection therewith except such as has been made or given or will have
been made or given prior to such date (except as otherwise contemplated by
Section 7.20 hereof). All filing and other fees and all mortgage recording
or other tax payable with respect to the recording of any of the Security
Documents and UCC financing statements (and any analogous UK documents)
have been paid or provided for or will have been so paid or provided for on
or prior to the Closing Date.
(b) The Security Documents, whether made before, on or after the
Amendment Effective Date secure or guarantee, as the case may be, all Loans
whether made before, on or after the Amendment Effective Date. No
amendments need to be made in any of the Security Documents, nor does any
action need to be taken, to effectuate the provisions of the preceding
sentence other than amendments being made (if any), and action being taken
(if any), on the Amendment Effective Date pursuant to Sections 12.14
hereof.
10.16 [intentionally deleted]
10.17 [intentionally deleted]
10.18 Qualification. Solely by reason of (and without regard to any other
activities of the Agent or any Bank in any State in which Collateral is located)
the entering into, performance and enforcement of this Agreement, the Loans, the
Security Documents and the other Loan Documents by the Agent or any Bank will
not constitute doing business by the Agent or any Bank in Virginia or result in
any liability of the Agent or such Bank for taxes or other governmental charges;
and qualification by the Agent or any Bank to do business in such jurisdiction
is not necessary in connection with, and the failure to so qualify will not
affect, the enforcement of, or exercise of any rights or remedies under, any of
such documents.
10.19 NOL's. Future taxable income of FAI will qualify in full for
reduction by the current tax losses and NOL's of XANSER and its subsidiaries,
without limitation.
10.20 [intentionally deleted]
10.21 [intentionally deleted]
10.22 Dormant Subsidiaries. No Dormant Subsidiary (a) is engaged in any
business or activity, (b) has any assets in excess of $25,000 (or its equivalent
in the applicable currency), (c) has any liabilities (contingent or otherwise)
in excess of $25,000 (or its equivalent in the applicable currency), or (d) has
any Subsidiary. Neither Holding nor the Borrower nor any of their respective
Subsidiaries is a Dormant Subsidiary as of the Closing Date.
Section 11. AGENT.
11.1 Appointment. The Banks hereby irrevocably appoint Bank of Scotland to
act as Agent hereunder and as Agent or "Assignee" or "Secured Party" or
"Mortgagee" or "Security Trustee" (or in any similar capacity, regardless of
designation) under the Security Documents (in such capacity, the "Agent"). Each
Bank hereby irrevocably authorizes, and each holder of any Note that is issued
in connection with any Loan by the acceptance of such Note shall be deemed
irrevocably to authorize, the Agent to take such action on its behalf under the
provisions of this Agreement, the Notes, the Security Documents, the other Loan
Documents and any other instruments and agreements referred to therein and to
exercise such powers thereunder as are specifically delegated to or required of
it by the terms thereof and such other powers as are reasonably incidental
thereto. The Agent may perform any of its duties under any of the Loan Documents
by or through its agents or employees.
11.2 Nature of Duties. The Agent shall have no duties or responsibilities
except those expressly set forth in the Loan Documents. Neither the Agent nor
any of its officers, directors, employees or agents shall be liable to any Bank
for any action taken or omitted by it under any of the Loan Documents, or in
connection therewith, unless caused by its or their gross negligence or willful
misconduct. Nothing in the Loan Documents, expressed or implied, is intended to
or shall be so construed as to impose upon the Agent any obligations in respect
of the Loan Documents except as expressly set forth therein. The duties of the
Agent under the Loan Documents shall be mechanical and administrative in nature
and the Agent shall not have by reason of its duties under the Loan Documents a
fiduciary or trustee relationship in respect of any Bank. The Agent agrees to
deliver promptly to each Bank copies of notices received by it pursuant to
Sections 7.2, 7.11 and 7.16 of this Agreement.
11.3 Lack of Reliance. Independently and without reliance on the Agent,
each Bank to the extent it deems appropriate has made and shall continue to make
(i) its own independent investigation of the financial condition and affairs of
the Credit Parties in connection with the making and the continuance of the
Loans and its Commitment hereunder and the issuance and renewal of Letters of
Credit hereunder and the taking or not taking of any action in connection
herewith, (ii) its own appraisal of the credit worthiness of the Credit Parties
and (iii) its own independent investigation and appraisal of the Collateral;
and, except as expressly provided in the Loan Documents, the Agent shall have no
duty or responsibility, either initially or on a continuing basis, to provide
any Bank with any credit or other information with respect thereto, whether
coming into its possession before the date hereof or at any time or times
thereafter. The Agent shall not be responsible to any Bank for any recitals,
statements, representations or warranties herein or in any certificate or other
document delivered in connection herewith or for the authorization, execution,
effectiveness, genuineness, validity, enforceability, perfection,
collectibility, or sufficiency of any of the Loan Documents, the financial
condition of the Credit Parties or the condition of any of the Collateral, or be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of any of the Loan Documents, the
financial condition of the Credit Parties or the existence or possible existence
of any Event of Default or Default.
11.4 Certain Rights. If the Agent requests instructions from the Banks or
the Required Banks with respect to any interpretation, act or action (including
failure to act in connection with this Agreement or any of the other Loan
Documents) the Agent shall be entitled to refrain from such act or taking such
actions unless and until it shall have received instructions from the Banks or
the Required Banks, as the case may be; and the Agent shall not incur liability
to any Person by so refraining. Without limiting the foregoing, no Bank shall
have any right of action whatsoever against the Agent as a result of the Agent
acting or refraining from acting hereunder or under any of the other Loan
Documents in accordance with the instructions of the Required Banks (as to
matters requiring the consent of the Required Banks) or all the Banks (as to
matters requiring the consent of all the Banks). The Agent shall be fully
justified in failing or refusing to take any action under any Loan Document
unless, if it requests, it shall first be indemnified to its satisfaction by the
Banks against any and all liability and expense which may be incurred by it by
reason of taking, continuing to take or not taking any such action.
11.5 Reliance. The Agent shall be entitled to rely upon any written notice,
or any telephone message believed by it to be genuine or correct and to have
been signed, sent or made by the proper Person, and, with respect to all legal
matters pertaining to the Loan Documents and its duties thereunder, upon advice
of counsel selected by it.
11.6 Indemnification. To the extent the Agent is not reimbursed or
indemnified by the Borrower, the Banks will reimburse and/or indemnify the Agent
in Dollars, in proportion to their respective Commitments (or if the Revolving
Credit Loan Commitments are terminated, the principal amount of Loans and
Letters of Credit outstanding) under this Agreement, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred or sustained by or asserted against the Agent, acting
pursuant hereto or any of the other Loan Documents in its capacity provided for
in this Section 11, in any way relating to or arising out of this Agreement, the
Original Agreement or any of the other Loan Documents, provided, however, that
no Bank shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or wilful misconduct.
The obligations of the Banks under this Section 11.6 shall survive the repayment
of the Loans and the termination of this Agreement and the other Loan Documents.
11.7 Agent, Individually. With respect to its Commitments under this
Agreement, the Loans made by it and any Note issued to or held by it, the Agent
shall have and may exercise the same rights and powers hereunder and is subject
to the same obligations and liabilities as and to the extent set forth herein
for any other Bank or holder of a Note. The terms "Bank" or "holders of Notes"
or any similar terms shall, unless the context clearly otherwise indicates, not
exclude the Agent in its individual capacity as a Bank or holder of a Note. The
Agent may accept deposits from, lend money to, and generally engage in any kind
of banking, trust or other business with the Credit Parties and Subsidiaries as
if it were not acting pursuant hereto, and may accept fees and other
consideration from the Credit Parties and Subsidiaries for services as the Agent
in connection with this Agreement and the other Loan Documents and for services
otherwise than as the Agent without having to account for the same to the Banks.
11.8 Holders of Notes. The Agent may deem and treat the payee of any Note
as the owner thereof for all purposes hereof unless and until a written notice
of the assignment or transfer thereof shall have been received by the Agent. Any
request, authority or consent of any Person, who at the time of making such
request or of giving such authority or consent is the payee of any Note, shall
be conclusive and binding on any subsequent holder, transferee, assignee or
payee of such Note or of any Note or Notes issued in exchange therefor.
11.9 Resignation. The Agent may resign at any time from the performance of
all its functions and duties hereunder and under the other Loan Documents by
giving 30 days prior written notice to the Borrower and each Bank. Such
resignation shall take effect upon the expiration of such 30 day period or upon
the earlier appointment of a successor. In case of the resignation of the Agent,
the Required Banks may appoint a successor by a written instrument signed by the
Required Banks. Any successor shall execute and deliver to the Agent an
instrument accepting such appointment, and thereupon such successor, without
further act, shall become vested with all the estates, properties, rights,
powers, duties and trusts of the Agent hereunder and with like effect as if
originally named as "Agent" herein and therein, and upon request, the
predecessor Agent shall take all actions and execute all documents necessary to
give effect to the foregoing. In the event the Agent's resignation becomes
effective at a time when no successor has been named, all notices, other
communications and payments hereunder required to be given by or to the Agent
shall be sufficiently given if given by the Required Banks (or all Banks, if the
consent of all Banks is required therefor hereunder) or to each Bank, as the
case may be. In such event, all powers specifically delegated to the Agent may
be exercised by the Required Banks and the Required Banks shall be entitled to
all rights of the Agent hereunder.
11.10 Reimbursement. Without limiting the provisions of Section 11.6, the
Banks and the Agent hereby agree that the Agent shall not be obligated to make
available to any Person any sum which the Agent is expecting to receive for the
account of that Person until the Agent has determined that it has received that
sum. The Agent may, however, disburse funds prior to determining that the sums
which the Agent expects to receive have been finally and unconditionally paid to
the Agent, if the Agent wishes to do so. If and to the extent that the Agent
does disburse funds and it later becomes apparent that the Agent did not then
receive a payment in an amount equal to the sum paid out, then any Bank (as to
clauses (a) and (b) below) and any Person (as to clause (a) below) to whom the
Agent made the funds available shall, on demand from the Agent:
(a) upon the Agent's request, refund to the Agent the sum paid to
that Person; and
(b) reimburse the Agent for the additional amount certified by
the Agent as being necessary to indemnify the Agent against any
funding or other cost, loss, expense or liability sustained or
incurred by the Agent as a result of paying out the sum before
receiving it; provided, however, that if such funds were made
available to any Bank, such additional amount shall be limited to
interest on the sum to be repaid, for each day from the date such
amount was disbursed until the date repaid to the Agent, at (for the
first three days) the customary rate set by the Agent for correction
of errors among banks, and thereafter at the Base Rate (US) (or, if
greater and in respect of a Loan made to the Borrower, the rate from
time to time prevailing on such Loan). In the event of any direct
conflict between this Section 11.10 and the provisions of Section
2.2(f) as to amounts payable by a Bank to the Agent in the
circumstances discussed, this Section 11.10 shall control.
Section 12. MISCELLANEOUS.
12.1 Calculations and Financial Data.
(a) Calculations hereunder (including, without limitation,
calculations used in determining, or in any certificate of any Credit Party
reflecting, compliance by any Credit Party with the provisions of this
Agreement) shall be made and financial data required hereby shall be
prepared both as to classification of items and as to amount in accordance
with GAAP consistent with the Financial Statements of such Credit Party for
its Fiscal Year ended December 31, 2001 that were delivered to the Banks
pursuant to Section 7.1(b); provided that for purposes of Section 8 no
effect shall be given to any change in GAAP from those in effect on January
1, 2002.
(b) In making any computations required for purposes of Section 8
hereunder to be in Dollars in respect of or relating to any fiscal or
calendar period, translations from other currencies shall be computed in
accordance with GAAP. In the case of any disputes between any of the
parties hereto as to the accuracy of any computation under this Agreement
relating to currency translations or the Spot Rate, the calculations of the
Agent (absent manifest error) shall be conclusive.
12.2 Amendment and Waiver.
(a) Except as otherwise provided, no provision of any of the Loan
Documents may be changed, waived, discharged or terminated orally, but only
by an instrument in writing signed by the Required Banks (or the Agent on
their behalf) and the Borrower, except that waivers of provisions relating
to a Credit Party's performance or non-performance of its obligations
hereunder or thereunder need not be signed by such Credit Party or any
other Credit Party; provided however that (i) the written consent of the
Issuer shall also be required to change, waive, discharge or terminate
provisions of Section 2A, (ii) the written consent of the Agent shall also
be required to change, waive, discharge or terminate provisions of Section
4.2 or 11, and (iii) the written consent of Holding shall also be required
to change, waive, discharge or terminate provisions of Section 9A; and
provided further that without the consent of all of the Banks (or the Agent
on their behalf) no change, waiver, discharge or termination may be made
that would increase the amount of any Bank's Commitment; decrease the
principal of any Loan or Reimbursement Obligation other than in accordance
with the provisions of this Agreement and the other Loan Documents;
decrease the interest rate payable on any Loan; decrease the rate of
Commitment commission payable pursuant to Section 4.1; extend the final
maturity date of any Loan; extend the termination date of the Commitment
Period; change the definition of "Required Banks" or modify this Section
12.2. Any such change, waiver, discharge or termination shall be effective
only in the specific instance and for the specific purposes for which made
or given.
(b) THIS WRITTEN AGREEMENT (AND THE OTHER LOAN DOCUMENTS) REPRESENTS
THE FINAL AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE MATTERS
COVERED HEREBY AND THEREBY AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
(c) THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
12.3 Expenses.
(a) Whether or not the transactions hereby contemplated shall be
consummated, the Borrower shall upon demand of the Agent pay all reasonable
out-of-pocket costs and expenses of (w) [intentionally deleted], (x) the
Agent incurred in connection with the preparation, execution, delivery,
administration, filing and recording of, and (y) of the Agent and the Banks
incurred in connection with the amendment (including any waiver or
consent), modification, and enforcement of or preservation of any rights
under, this Agreement, the Loan Documents, the making and repayment of the
Loans, the issuance of Letters of Credit and the maintenance and operation
of the Other Accounts, and the payment of all interest and fees, including,
without limitation, (A) the reasonable fees and expenses of ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for the Agent and Bank of Scotland, and any special or
local counsel (including Freshfields Bruckhaus ▇▇▇▇▇▇▇▇) retained by the
Agent or Bank of Scotland or the Required Banks, and with respect to
enforcement, the reasonable fees and expenses of counsel for the Agent or
any Bank, (B) the reasonable fees and expenses of consultants and
appraisers retained by the Agent in connection with the transactions
contemplated hereunder, and (C) printing, travel, title insurance,
recording, filing, communication and signing taxes and costs.
(b) The Borrower agrees to pay, and to save the Agent and the Banks
harmless from (x) all present and future stamp, filing and other similar
taxes, fees or charges (including interest and penalties, if any), which
may be payable in connection with the Loan Documents or the issuance of any
Notes or of Letters of Credit or any modification of any of the foregoing,
and (y) all finder's and broker's fees (other than any that may have been
contracted for by the Agent or the Banks) in connection with the
transactions contemplated by this Agreement and the other Loan Documents.
(c) Without limiting any of the rights or obligations as set forth in
this Agreement on the part of the Agent or any of the Banks, the Borrower
agrees to indemnify, pay and hold harmless the Issuer, the Agent, each
Bank, any Bank Assignee and each holder of a Note and their respective
present and future officers, directors, employees and agents (collectively,
the "Indemnified Parties") from and against all liability, losses, damages
and expenses (including, without limitation, legal fees and expenses)
arising out of, or in any way connected with, or as a result of (i) the
execution and delivery of this Agreement and the other Loan Documents or
the documents or transactions contemplated hereby and thereby or the
performance by the parties hereto or thereto of their respective
obligations hereunder and thereunder or relating thereto; or (ii) any
claim, action, suit, investigation or proceeding (in each case, regardless
of whether or not the Indemnified Party is a party thereto or target
thereof) in any way relating to Holding, the Borrower, XANSER, any member
of the Consolidated Group or any Affiliate of any of the foregoing; or
(iii) any violation by any member of the Consolidated Group (or any
predecessor in interest of any of them) of any Environmental Law, any
Environmental Claim or Environmental Cost or the imposition of any
Environmental Lien, or any breach of any representation or warranty set
forth in Section 10.12; provided that the Borrower shall not be liable to
any Indemnified Party for any portion of such liabilities, liabilities,
losses, damages and expenses sustained or incurred as a direct result of
the gross negligence or willful misconduct of the Issuer, the Agent or any
Bank if such gross negligence or willful misconduct is determined to have
occurred by a final and non-appealable decision of a court of competent
jurisdiction.
(d) All obligations provided for in this Section 12.3 and any other
Section of this Agreement shall survive any termination of this Agreement,
the expiration and termination of all Letters of Credit, the payment of all
Deemed Disbursements and Reimbursement Obligations and the payment in full
of the Loans.
12.4 Benefits of Agreement; Descriptive Headings.
(a) This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and their respective successors
and assigns, and, in particular, shall inure to the benefit of the holders
from time to time of the Notes; provided, however, that no Loan Party may
assign or transfer any of its rights or obligations hereunder without the
prior written consent of the Agent and the Banks and any such purported
assignment or transfer shall be void. In furtherance of the foregoing, each
Bank shall be entitled at any time to grant participations in or assign,
sell or otherwise transfer the whole or any part of its rights and
obligations under this Agreement, the Loan Documents or any Loan or Note or
Letter of Credit to any Person subject to obtaining the prior written
consent of the Borrower (but no other Credit Party), such consent not to be
unreasonably withheld. No such participation, assignment, sale or other
transfer pursuant to this Section 12.4(a) shall relieve any Bank from its
obligations hereunder and the Borrower and the Guarantors need deal solely
with the Agent with respect to waivers, modifications and consents to this
Agreement, the Loan Documents or the Notes. Any such participant, assignee,
purchaser or transferee is referred to in this Agreement as a "Bank
Assignee". The Borrower agrees that the provisions of Sections 2A.3, 3.7,
3.9, 3.10, 3.11, 5.2 and 12.3 shall run to the benefit of each Bank
Assignee and its participations or interests herein, and any Bank may
enforce such provisions on behalf of any such Bank Assignee; provided,
however, that if any Bank or any Bank Assignee assigns, sells, or otherwise
transfers or grants participations in or otherwise disposes of all or any
part of the Borrower's indebtedness under this Agreement to any party
pursuant to this Section 12.4(a), then the amounts that the Borrower is
required to pay pursuant to this Agreement (including, without limitation,
additional amounts made pursuant to Section 5.2) shall not exceed the
amounts that the Borrower would have been required to pay to such Bank
pursuant to this Agreement had such Bank not made such assignment, sale,
transfer, grant, participation or other disposition of the Borrower's
indebtedness under this Agreement. The Borrower hereby further agrees that
any such Bank Assignee may, to the fullest extent permitted by applicable
law, exercise the right of setoff with respect to such participation (and
in an amount up to the amount of such participation) as fully as if such
Bank Assignee were the direct creditor of the Borrower. Upon a
participation, assignment, sale or transfer in accordance with the
foregoing, the Borrower shall execute such documents and do such acts as
any Bank may reasonably request to effect such assignment, provided that
such documents and acts are consistent with the terms and conditions of the
Loan Documents. Any Bank may furnish any information concerning any Credit
Party or Subsidiary in its possession from time to time to Bank Assignees
(including prospective Bank Assignees). Each Bank shall notify the Borrower
of any participation, assignment, sale or transfer granted by it pursuant
to this Section 12.4(a). The Borrower shall not be responsible for any due
diligence costs or legal expenses of any party (including the Agent or the
Bank Assignee) in connection with their entering into such participation,
assignment, sale or transfer.
(b) The descriptive headings of the various provisions of this
Agreement are inserted for convenience of reference only and shall not be
deemed to affect the meaning or construction of any of the provisions
hereof.
(c) Notwithstanding anything to the contrary contained herein or in
any of the Loan Documents, the exhibits to this Agreement shall not be
required to be attached to the execution or any other copy of this
Agreement, and any references in this Agreement or the other Loan Documents
to such exhibits as "Exhibits hereto" or "Exhibits to this Agreement" or
words of similar effect shall be deemed to refer to such document as
executed by the parties thereto and delivered on the Closing Date (or such
other date on which they were executed and delivered).
12.5 Notices, Requests, Demands, etc. Except as otherwise expressly
provided herein, all notices, requests, demands or other communications to or
upon the respective parties hereto shall be deemed to have been duly given or
made when delivered (if sent by Federal Express or other similar overnight
delivery service), or 3 days after mailing (when mailed, postage prepaid, by
registered or certified mail, return receipt requested), or (in the case of
telex, telegraphic, telecopier or cable notice) when delivered to the telex,
telegraph, telecopier or cable company, or (in the case of telex or telecopier
notice sent over a telex or telecopier owned or operated by a party hereto) when
sent; in each case, addressed as follows, except that notices and communications
to the Agent pursuant to Sections 2 and 9 shall not be effective until received
by the Agent: (i) if to the Agent, at the Closing Office, (ii) if to a Bank, at
the address specified with its signature below, and (iii) if to any Loan Party
party hereto, at its address specified with its signature below (Attention:
President), or to such other addresses as any of the parties hereto may
hereafter specify to the others in writing, provided that communications with
respect to a change of address shall be deemed to be effective when actually
received. Notices and communications sent to the Borrower at the address listed
for Holding on the signature page hereof shall be deemed satisfactorily sent to
the Borrower for purposes of clause (iii) above. Without prejudice to the
foregoing, each Loan Party (other than a Loan Party incorporated in England and
Wales) (i) irrevocably appoints the Borrower as its agent for service of process
in relation to any proceedings before English courts in connection with any Loan
Document and (ii) agrees that failure by a process agent to notify the relevant
Loan Party of the process will not invalidate the proceedings concerned.
12.6 Governing Law. THIS AGREEMENT AND THE LOANS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF ENGLAND APPLICABLE TO CONTRACTS
EXECUTED WHOLLY WITHIN ENGLAND (REGARDLESS OF THE PLACE WHERE THIS AGREEMENT IS
EXECUTED). IF FOR ANY REASON ANY COURT SHALL RULE THAT THIS AGREEMENT AND THE
LOANS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER ARE NOT GOVERNED
BY THE LAWS OF ENGLAND, THIS AGREEMENT AND THE LOANS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED WHOLLY WITHIN THE STATE OF NEW YORK (REGARDLESS OF THE PLACE
WHERE THIS AGREEMENT IS EXECUTED).
12.7 Counterparts. This Agreement may be executed in any number of
counterparts, and by the different parties hereto on the same or separate
counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Complete sets of
counterparts of this Agreement shall be lodged with the Borrower and the Agent.
12.8 Waiver. No failure or delay on the part of the Agent or any Bank in
exercising any right, power or privilege under this Agreement or any other Loan
Document, and no course of dealing between any Credit Party and the Agent or any
Bank shall operate as a waiver thereof; nor shall any single or partial exercise
of any right, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein expressly provided are cumulative and not exclusive
of any rights or remedies which the Agent or any Bank would otherwise have
pursuant to such documents or at law or equity. No notice to or demand on any
Credit Party in any case shall entitle such Credit Party or any other Credit
Party to any other or further notice or demand in similar or other circumstances
or constitute a waiver of the right of the Agent or any Bank to any other or
further action in any circumstances without notice or demand.
12.9 Pro Rata Sharing.
(a) Any Recoveries (after deduction and payment of all expenses and
costs permitted by this Agreement, the Security Documents or applicable
law), shall be applied against the Loans or against unpaid Reimbursement
Obligations (and, if no Loans or Reimbursement Obligations shall then be
outstanding, shall be held in trust by the Agent on behalf of the Borrower
to the extent of the amount of the LC Outstandings from time to time in
existence until satisfaction in full of all amounts due thereunder).
(b) The Banks agree among themselves that, with respect to all sums
received by the Banks applicable to the payment of the principal of or
interest on the Loans or in respect of amounts paid by the Issuer pursuant
to, or in connection with, Letters of Credit (in each case, except as
otherwise provided in Section 5.2 or 5.3), equitable adjustment will be
made between the Banks so that, in effect, all such sums shall be shared
ratably by each of the Banks (in accordance with the outstanding principal
amounts of their respective Loans or participations in issued Letters of
Credit, as the case may be) whether received by voluntary payment, by
realization upon security, by the exercise of the right of set-off or
banker's lien, by counterclaim or cross-action or by the enforcement of any
or all of the Notes or otherwise. If any Bank receives any payment on its
Loans or in respect of amounts paid by the Issuer pursuant to, or in
connection with, Letters of Credit of a sum or sums in excess of its pro
rata portion (except as otherwise provided in Section 5.2 or 5.3), then
such Bank receiving such excess payment shall purchase for cash from the
other Banks an interest in their Loans (or participations in Letters of
Credit, if applicable) in such amount as shall result in a ratable
participation by all of the Banks in the amount of the aggregate unpaid
amount of Loans (Letters of Credit, to the extent applicable) then
outstanding; provided, however, that if all or any portion of such excess
payment is thereafter recovered by such Bank, the purchase shall be
rescinded and the purchase price restored to the extent of such recovery,
but without interest. Each Loan Party party hereto hereby agrees that any
Bank so purchasing a participation from another Bank pursuant to this
Section 12.9(b) or purchasing a participation pursuant to Section 2A.8 may,
to the fullest extent permitted by law, exercise all its rights of payment
(including the right of setoff) with respect to such participation as fully
as if such Bank were the direct creditor of such Loan Party in the amount
of such participation.
12.10 JURISDICTION. THE PARTIES HERETO AGREE THAT ANY LEGAL ACTION OR
PROCEEDING AGAINST ANY OTHER PARTY HERETO WITH RESPECT TO THIS AGREEMENT, THE
LOANS OR ANY OF THE LOAN DOCUMENTS OR THE DOCUMENTS DELIVERED IN CONNECTION
THEREWITH MAY BE BROUGHT IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ LOCATED IN NEW
YORK CITY OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK OR ANY COURT IN ENGLAND AS SUCH PARTY MAY ELECT, AND, BY EXECUTION AND
DELIVERY HEREOF, EACH OF THE PARTIES HERETO ACCEPTS AND CONSENTS FOR ITSELF AND
IN RESPECT TO ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF
THE AFORESAID COURTS. EACH OF THE PARTIES HERETO AGREE THAT SUCH JURISDICTION
SHALL BE EXCLUSIVE, UNLESS WAIVED BY THE AGENT OR THE BANKS (WITH RESPECT TO
ACTIONS OR PROCEEDINGS BROUGHT BY A LOAN PARTY PARTY HERETO) OR BY THE BORROWER
OR HOLDING (WITH RESPECT TO ACTIONS OR PROCEEDINGS BROUGHT BY THE AGENT OR A
BANK) IN WRITING, AND WITH RESPECT TO ANY QUESTIONS RELATING TO USURY EXCEPT
THAT WITHOUT SUCH WRITTEN CONSENT THE AGENT AND BANKS MAY BRING ACTIONS AND
PROCEEDINGS IN ANY OTHER JURISDICTION WHERE THE BORROWER OR HOLDING HAS PROPERTY
OR DOES BUSINESS. EACH OF THE PARTIES HERETO AGREES THAT SECTIONS 5-1401 AND
5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK SHALL APPLY TO
THE LOAN DOCUMENTS AND WAIVES ANY RIGHT TO STAY OR TO DISMISS ANY ACTION OR
PROCEEDING BROUGHT BEFORE SAID NEW YORK OR US OR ENGLISH COURTS ON THE BASIS OF
FORUM NON CONVENIENS. IN FURTHERANCE OF THE FOREGOING, EACH OF HOLDING AND THE
BORROWER HEREBY IRREVOCABLY DESIGNATES AND APPOINTS CT CORPORATION SYSTEM AT
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, AS ITS AGENT TO RECEIVE SERVICE OF ALL
PROCESS BROUGHT AGAINST SUCH LOAN PARTY WITH RESPECT TO ANY SUCH PROCEEDING IN
ANY SUCH COURT IN NEW YORK, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY SUCH LOAN
PARTY TO BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. COPIES OF ANY SUCH
PROCESS SO SERVED SHALL ALSO BE SENT BY REGISTERED MAIL TO SUCH LOAN PARTY AT
ITS ADDRESS SET FORTH NEXT TO ITS SIGNATURE BELOW AND TO ITS AGENT FOR SERVICE
IN THE UK UNDER SECTION 12.5, BUT THE FAILURE OF SUCH LOAN PARTY TO RECEIVE SUCH
COPIES SHALL NOT AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS AS AFORESAID.
EACH SUCH LOAN PARTY SHALL FURNISH TO THE AGENT A CONSENT OF CT CORPORATION
SYSTEM AGREEING TO ACT HEREUNDER PRIOR TO THE CLOSING DATE. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE AGENT OR THE BANKS TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW. IF FOR ANY REASON CT CORPORATION SYSTEM SHALL RESIGN OR
OTHERWISE CEASE TO ACT AS AGENT, EACH SUCH LOAN PARTY HEREBY IRREVOCABLY AGREES
TO (I) IMMEDIATELY DESIGNATE AND APPOINT A NEW AGENT ACCEPTABLE TO THE AGENT TO
SERVE IN SUCH CAPACITY AND, IN SUCH EVENT, SUCH NEW AGENT SHALL BE DEEMED TO BE
SUBSTITUTED FOR CT CORPORATION SYSTEM, INC. FOR ALL PURPOSES HEREOF AND (II)
PROMPTLY DELIVER TO THE AGENT THE WRITTEN CONSENT (IN FORM AND SUBSTANCE
SATISFACTORY TO THE AGENT) OF SUCH NEW AGENT AGREEING TO SERVE IN SUCH CAPACITY.
12.11 Severability. If any provision of this Agreement shall be held or
deemed to be or shall, in fact, be illegal, inoperative or unenforceable, the
same shall not affect any other provision or provisions herein contained or
render the same invalid, inoperative or unenforceable to any extent whatever.
12.12 Right of Set-off. In addition to any rights now or hereafter granted
under applicable law or otherwise and not by way of limitation of any such
rights, upon the occurrence of an Event of Default each of the Banks is hereby
authorized at any time or from time to time, without notice to any Loan Party or
to any other Person, any such notice being hereby expressly waived, to set-off
and to appropriate and apply any and all deposits (general or special, time or
demand, provisional or final) and any other indebtedness at any time held or
owing by such Bank to or for the credit or the account of any Loan Party against
and on account of the obligations and liabilities of such Loan Party now or
hereafter existing under any of the Loan Documents irrespective of whether or
not any demand shall have been made thereunder and although said obligations,
liabilities or claims, or any of them, shall be contingent or unmatured. The
Bank or Banks exercising any rights granted under this Section 12.12 shall
thereafter notify the affected Loan Party and the Agent of such action; provided
that the failure to give such notice shall not affect the validity of such
set-off and application.
12.13 No Third Party Beneficiaries. This Agreement is solely for the
benefit of the Agent, the Banks, Holding, the Borrower, and their respective
successors and assigns (except as otherwise expressly provided herein), nothing
contained herein shall be deemed to confer upon anyone other than the Borrower
and their respective successors and assigns any right to insist on or to enforce
the performance or observance of any of the obligations contained herein and a
Person who is not a party to this Agreement or a Loan Party, Bank, the Agent or
a Bank Assignee and their respective successors and assigns has no rights under
the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce or enjoy the
benefits of any terms of this Agreement. All conditions to the obligations of
the Banks to make the Loans and issue Letters of Credit hereunder are imposed
solely and exclusively for the benefit of the Banks and their respective
successors and assigns and no other Person shall have standing to require
satisfaction of such conditions in accordance with their terms and no other
Person shall under any circumstances be deemed to be beneficiary of such
conditions.
12.14 Effectiveness. This Agreement shall become effective when and as of
the date (the "Amendment Effective Date") that each of the following conditions
have been satisfied to the satisfaction of the Agent (or waived by the Agent):
(a) The Borrower, Holding, and the Banks shall have executed a copy
hereof (whether the same or different counterparts) and delivered the same
to the Agent at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (Attention:
▇▇▇▇▇ ▇▇▇▇▇▇) or, in the case of the Banks, shall have given to the Agent
written notice (actually received) that the same has been signed and is
being sent to the Agent. Complete sets of counterparts of this Agreement
shall be lodged with the Borrower and the Agent. Telecopied signatures
hereto and to the Confirming Consents shall be of the same force and effect
as an original of a manually signed copy.
(b) Each Credit Party shall have executed a confirming consent,
substantially in the form of Exhibit U hereto or otherwise satisfactory to
the Agent (each, a "Confirming Consent") and delivered the same to the
Agent.
(c) Each of the Banks shall have returned to the Borrower the
promissory notes that were issued to them pursuant to the Original
Agreement and received in exchange therefor an appropriately completed
Revolving Credit Note, each dated the Closing Date (or such other date
agreed to by the Agent and the Borrower) and duly executed by the Borrower.
(d) To the extent that the relative proportions of the respective
Loans of each Bank after giving effect to this Section 12.14 are different
from those determined based on the amounts of the Commitments set forth in
Schedule 2.1 hereto, the Banks shall make such appropriate adjustment among
themselves so that, after giving effect thereto, the amounts of their
respective Loans reflect the relative proportions based on such schedule.
To the extent necessary to effectuate the foregoing, each Bank shall be
deemed to have purchased or sold, as the case may be, such portion of the
principal amount of the relevant Loans whose amounts are so adjusted.
12.15 Survival. Each of the representations, warranties, terms, covenants,
agreements and conditions contained in the Original Agreement shall specifically
survive the execution and delivery of this Agreement and the other Loan
Documents, the making of the Loans and issuance of Letters of Credit and the
Amendment Effective Date and shall, unless otherwise expressly provided,
continue in full force and effect until the Commitments have been terminated and
the Loans together with interest thereon, the Commitment commissions, the fees
and compensation of the Agent, and all other sums payable hereunder or
thereunder (including, without limitation, Reimbursement Obligations) have been
indefeasibly paid in full.
12.16 Domicile of Loans. Any Bank may make, maintain or transfer any of its
Loans hereunder to, or for the account of, any branch office and (subject to the
prior consent of the Borrower, such consent not to be unreasonably withheld) to
any subsidiary or affiliate of such Bank.
12.17 Currency.
(a) If, for the purpose of obtaining judgment in any court, it is
necessary to convert a sum due hereunder (the "First Currency") into any
other currency (the "Other Currency"), the rate of exchange used shall be
that with which in accordance with normal banking procedures the Agent (or,
if received by a Bank other than the Agent, that Bank) could purchase the
First Currency with the Other Currency on the Business Day preceding that
on which final judgment is given. The obligation of a Credit Party in
respect of any sum due from it to the Agent or a Bank hereunder,
notwithstanding judgment in such Other Currency, shall be discharged only
to the extent that on the Business Day following receipt by the Agent or
such Bank of any sum adjudged to be so due in the Other Currency, the Agent
or such Bank (as the case may be) may in accordance with normal banking
procedures purchase the First Currency with the Other Currency; if the
First Currency so purchased shall be less than the sum originally due to
the Agent or the Bank in the First Currency, the Borrower and Holding
jointly and severally agree, as a separate obligation and notwithstanding
any such judgment, to indemnify the Agent or such Bank (as the case may be)
against such loss.
(b) Each reference in this Agreement to Dollars or any other
applicable currency is of the essence. To the fullest extent permitted by
applicable law, the obligation of Holding and the Borrower in respect of
any amount due under this Agreement shall, notwithstanding any payment in
any other currency (whether pursuant to a judgment or otherwise), be
discharged only to the extent of the amount in Dollars or such other
applicable currency that the Person entitled to receive such payment may,
in accordance with normal banking procedures, purchase with the sum paid in
such other currency (after any premium and costs of exchange) on the
Business Day following receipt by such Person of such payment. If the
amount in Dollars or such other applicable currency that may be so
purchased for any reason falls short of the amount originally due, the
Borrower shall pay such additional amounts, in Dollars or such other
applicable currency, as the case may be, as may be necessary to compensate
for such shortfall. Any obligation of the Borrower or Holding not
discharged by such payment shall be due as a separate and independent
obligation and, until discharged as provided herein, shall continue in full
force and effect.
12.18 Waiver of Jury Trial. EACH OF THE BORROWER, HOLDING, THE AGENT AND
THE BANKS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY AND ALL
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON,
OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN), OR ACTIONS OF ANY CREDIT PARTY, THE AGENT OR THE BANKS. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE BANKS ENTERING INTO
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
12.19. Securities Act. Each Bank agrees that it will not transfer any of
its Notes in a manner that would subject such Note or transfer to the
registration requirements of the Securities Act of 1933.
[rest of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective duly authorized officers as of
the date first above written.
FURMANITE LIMITED
By: //s//
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
▇▇▇▇▇▇ House
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Telecopier No.: 011-44-539-729-359
FUMANITE WORLDWIDE, INC.
By: //s//
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
BANK OF SCOTLAND, individually and as agent
By: //s//
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: First Vice President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Schedule 2.1
Commitments (on Amendment Effective Date)
Revolving Credit
Bank Loan Commitment*
-------------------------------- -----------------
Bank of Scotland $25,000,000
-----------
Total $25,000,000
*Subject to reduction pursuant to Section 2.8.
ANNEX I
DEFINITIONS
As used in the Loan Agreement to which this Annex I is annexed, the
following terms shall have the meanings herein specified or as specified in the
Section of such Loan Agreement or in such other document herein referenced:
"Affected Bank" - Section 3.9(b).
"Affiliate", as to any Person, shall mean any other Person directly or
indirectly controlling, controlled by or under common control with, such Person.
Unless otherwise indicated, references to "Affiliate" shall refer to Affiliates
of the Loan Parties. Without limiting the generality of the foregoing, each
Credit Party shall be considered an Affiliate of each other Credit Party.
"Agent" - introductory paragraph.
"Agent's Fees" - Section 4.2.
"Aggregate Outstanding Amount" -- Section 3A.6.
"Agreement" or "Loan Agreement" shall mean this Loan Agreement as it may
from time to time be amended, extended, restated, supplemented or otherwise
modified.
"Amendment Effective Date" - Section 12.14.
"applicable currency" means, as to any particular payment, Loan, Letter of
Credit or other Obligation, the currency in which it is payable or denominated.
"Associate", when used to indicate a relationship with a Person, shall mean
(i) another Person (other than a member of the Consolidated Group) of which such
Person is an officer or partner or is, directly or indirectly, the beneficial
owner of 10 percent or more of any class of equity securities, (ii) any trust or
other estate in which such Person has a substantial beneficial interest or at to
which such Person or an immediate member of his family serves as trustee or in a
similar capacity, and (iii) any relative or spouse of such Person or any
relative of such spouse.
"AUD$" shall mean lawful currency of Australia.
"Australian Facility" shall mean that certain loan agreement dated as of
June 30, 1997 between BOS Australia. and Furmanite Australia Pty Ltd (fka Denon
Pty Ltd), the note issued pursuant to the loan agreement and the instruments and
documents delivered under the loan agreement.
"Australian LC" shall mean collectively (a) Irrevocable Letter of Credit
No. SLC 97/03 dated June 30, 1997 in the amount of AUD$1,100,000 issued by the
Issuer to secure the Australian Facility and (b) Irrevocable Letter of Credit
No. SLC 01/01 dated January 16, 2001 in the amount of AUD$123,152 issued by the
Issuer in favor of ▇▇▇▇▇▇ Engineering Ltd.
"Auditors" shall mean, as to each Credit Party, such independent certified
public or chartered accountants of recognized standing selected by a Credit
Party (as to itself), and satisfactory to the Agent. (The certified public
accountants for XANSER shall be deemed satisfactory to the Agent so long as the
securities of XANSER are registered under the Securities Act of 1933).
"Audits" - Section 6.9
"Bank Assignee" - Section 12.4.
"Banks" - introductory paragraph.
"Base Rate (UK)" shall mean, for any day, the basic lending rate of the
Agent, in effect from time to time at the principal office of the Agent in
London, England, on which the Agent's lending and deposit rates at such office
are founded. Any change in the interest rate resulting from a change in such
Base Rate (UK) shall be effective as of the opening of business on the day on
which such change becomes effective; it is understood and agreed that the
foregoing rate and the Base Rate (UK) are reference rates only and do not
necessarily represent the lowest or best rate actually charged to any customer.
"Base Rate (US)" shall mean, for any day, the higher of (x) the fluctuating
interest rate per annum, as in effect from time to time, established by the
Agent in New York from time to time as the Agent's base, prime or reference rate
for U.S. domestic commercial loans in Dollars, or (y) the Federal Funds
Effective Rate in effect on such day plus 1/2%. Any change in the interest rate
resulting from a change in such Base Rate (US) shall be effective as of the
opening of business on the day on which such change becomes effective; it is
understood and agreed that all the aforesaid rates and the Base Rate (US) are
reference rates only and do not necessarily represent the lowest or best rate
actually charged to any customer.
"Base Rate (US) Differential" shall mean:
(a) Prior to the Covenant Election Effective Date:
(i) 1.25% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is equal to or greater than 3.0:1 for two consecutive
fiscal quarters;
(ii) 0.75% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is equal to or greater than 2.5:1 and less than 3.0:1 for
two consecutive fiscal quarters;
(iii) 0.50% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is equal to or greater than 2.0:1 and less than 2.5:1 for
two consecutive fiscal quarters; and
(iv) 0.00% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is less than 2.0:1 for two consecutive fiscal quarters.
(b) On or after the Covenant Election Effective Date:
(i) 0.75% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is equal to or greater than 3.0:1 for two consecutive
fiscal quarters;
(ii) 0.25% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is equal to or greater than 2.5:1 and less than 3.0:1 for
two consecutive fiscal quarters;
(iii) 0.00% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is equal to or greater than 2.0:1 and less than 2.5:1 for
two consecutive fiscal quarters; and
(iv) 0.00% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is less than 2.0:1 for two consecutive fiscal quarters.
"Base Rate (US) Loans" shall mean a Loan made in Dollars during any period
that it bears interest determined by reference to the Base Rate (US).
"Borrower" - introductory paragraph.
"Borrower Security Agreement" - Section 6.5(a).
"Borrower Pledge Agreement" - Section 6.5(a).
"Borrowing Date" - Section 2.2(a).
"BOS" shall mean Bank of Scotland in its capacity as a Bank, and not as
Agent or Issuer, hereunder.
"BOS Australia" shall mean BOS International (Australia) Limited.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a legal holiday
or any other day on which banks are authorized or required to be closed in
New York, New York and which is also a day on which banks and foreign
exchange markets are open for business in London; and
(b) relative to the date of
(i) making or continuing any Loans as, or converting any Loans
from or into, Libor Loans,
(ii) making any payment or prepayment of principal of, or payment
of interest on, any portion of the principal amount of any Loan being
maintained as a Libor Loan, or
(iii) the Borrower's giving any notice (or the number of Business
Days to elapse prior to the effectiveness thereof) in connection with
any matter referred to in clause (b)(i) or (b)(ii) above,
which is a Business Day pursuant to clause (a) above and which also is
a day on which dealings in Dollars are carried on in the London
interbank Eurocurrency market.
"Capital Expenditures" shall mean expenditures for acquisitions,
construction or improvement of fixed assets.
"Capitalized Lease Obligations" shall mean all rental obligations which,
under GAAP, are or would be required to be capitalized on the books of a Person,
in each case taken at the amount thereof accounted for as indebtedness (net of
interest expense) in accordance with such principles.
"Carlisle" shall mean the Carlisle branch of the UK Bank or such other
branch or Bank as is satisfactory to the Agent.
"Carlisle Facility" shall mean loans, overdrafts or other financial
accommodations (including letters of credit, guarantees and performance and
other bonds) made by Carlisle to (or for the account of) the Borrower or, at the
request of the Borrower, to (or for the account of) one or more Subsidiaries of
the Borrower, which in each case are supported by the ▇▇▇▇▇▇▇▇ ▇▇.
"▇▇▇▇▇▇▇▇ ▇▇" shall mean Irrevocable Letter of Credit No. SLC 91/03 dated
May 17, 1992 in the amount of 1,600,000 Sterling issued by the Issuer to secure
the Carlisle Facility.
"Charter Document" shall mean (i) with respect to a corporation: its
certificate or articles of incorporation or association and its by-laws or
comparable documents under non-US laws; (ii) with respect to a partnership: its
partnership agreement and certificate of partnership or comparable documents
under non-US laws; (iii) with respect to a trust, its trust agreement or
declaration of trust or comparable documents under non-US laws; and (iv) with
respect to a limited liability company, its certificate of formation and limited
liability company agreement or analogous documents or comparable documents under
non-US laws.
"Christiania" shall mean Christiania Bank og Kreditkasee ASA.
"Closing Date" shall mean the date of this Agreement.
"Closing Date Banks" - Section 6 (introductory paragraph).
"Closing Office" shall mean the office of the Agent at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ or such other office as may be designated in writing to the
Borrower by the Agent.
"Closing Office Time" shall mean the local time in effect at the Closing
Office.
"Code" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"Collateral" - Section 10.15.
"Commercial Paper" - Section 8.14.
"Commitment" shall mean each Revolving Credit Loan Commitment.
"Commitment Fee Percentage" shall mean:
(a) Prior to the Covenant Election Effective Date:
(i) 0.625% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is equal to or greater than 3.0:1 for two consecutive
fiscal quarters;
(ii) 0.500% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is equal to or greater than 2.5:1 and less than 3.0:1 for
two consecutive fiscal quarters;
(iii) 0.375% if the Total Debt/EBITDA ratio calculated pursuant
to Section 8.22 is equal to or greater than 2.0:1 and less than 2.5:1
for two consecutive fiscal quarters; and
(iv) 0.375% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is less than 2.0:1 for two consecutive fiscal quarters.
(b) On or after the Covenant Election Effective Date:
(i) 0.50% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is equal to or greater than 3.0:1 for two consecutive
fiscal quarters;
(ii) 0.375% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is equal to or greater than 2.5:1 and less than 3.0:1 for
two consecutive fiscal quarters;
(iii) 0.25% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is equal to or greater than 2.0:1 and less than 2.5:1 for
two consecutive fiscal quarters; and
(iv) 0.25% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is less than 2.0:1 for two consecutive fiscal quarters.
"Commitment Period" shall mean the period from the Closing Date to and
including the first Business Day of January, 2009, or such earlier date as the
Revolving Credit Loan Commitments shall terminate as provided in the Loan
Agreement or such later date as may hereafter be agreed to by the Banks with
Revolving Credit Loan Commitments (by 100% vote) in writing.
"Confirming Consent" - Section 12.14.
"Consolidated Group" shall mean, collectively, Holding, FAI, the Borrower,
FOSI and their respective Subsidiaries, on a consolidated basis.
"Contaminant" means any waste, pollutant, chemical, hazardous material,
hazardous substance, toxic substance, hazardous waste, special waste, petroleum
or petroleum-derived substance or waste, or any constituent of any such
pollutant material, substance or waste, including, without limitation, asbestos,
radiation and any pollutant, material, substance or waste regulated under any
Environmental Law.
"Control" (including the terms "controlling," "controlled by" and "under
common control with") shall mean the possession, direct or indirect, or the
power to direct or cause the direction of the management and policies of a
person, whether through the ownership of voting securities, by contract, or
otherwise.
"Conversion Date" shall mean the Business Day on which a Loan is to be
converted pursuant to Section 3.5, 3.6, 3.9 or 3.10.
"Covenant Election" - Section 8.17.
"Covenant Election Notice" - Section 8.17.
"Covenant Election Effective Date" - Section 8.17.
"Credit Parties" shall mean, individually and collectively, each Loan Party
and its parent, whether or not a Loan Party.
"Deemed Disbursement" - Section 2A.6.
"Deemed Disbursement Account" -- Section 2A.6(a).
"Default" shall mean any event which with notice or lapse of time, or both,
would become an Event of Default.
"Designated Office" shall mean the Closing Office or, at the Agent's option
(with respect to Sterling) such office of the Agent in the US or the UK or the
Cayman Islands as the Agent shall from time to time specify.
"Determination Date" shall mean the last Business Day of each calendar
quarter.
"Disbursement" - Section 2A.4.
"Disbursement Date" - Section 2A.4.
"Disbursement Earnings" shall mean the amount (if any) earned by
investments (if any) made by the Issuer with amounts in the Deemed Disbursement
Account.
"Dollar Equivalent" shall mean (x) in respect of any currency other than
Dollars, the amount determined by converting the currency in question, at the
Spot Rate, to Dollars and (y) in respect of Dollars, the amount thereof.
"Dollars", "U.S. $", "$" and "U.S. dollars" shall mean the lawful currency
of the United States of America.
"Dormant Subsidiaries" shall mean Subsidiaries of FAI, the Borrower or FOSI
(a) that meet the criteria of Section 10.22 of the Agreement and (b) as to which
the Agent and the Borrower agree in writing shall be a Dormant Subsidiary for
purposes hereof, but only while the representations contained in Section 10.22
of the Agreement are accurate with respect to such Subsidiary.
"EBIT" for any Person for any period shall mean the consolidated Net Income
of such Person and its consolidated Subsidiaries for such period, before Total
Interest Expense and provision for taxes and without giving effect to any
extraordinary gains and gains from sales of assets (other than sales of
inventory in the ordinary course of business), for such period (taken as one
accounting period).
"EBITDA" for any Person for any period shall mean the EBIT of such Person
and its consolidated Subsidiaries for such period plus (to the extent deducted
in computing EBIT for such period) depreciation, amortization and other non-cash
items.
"Environmental Claim" shall mean any notice, complaint, request for
information, claim, demand or similar communication (whether written or oral) by
any Person (including, without limitation, the environmental protection
authorities of the jurisdiction in which any Property is located or any other
national or local regulatory or administrative body), whether based in contract,
tort, implied or express warranty, strict liability, criminal or civil statute
(including any Environmental Law, permit, order, approval, authorization,
license, variance or agreement with any Person), arising from or in respect of
(i) the presence of any Contaminant or any other environmental, health or safety
conditions or a Release or threatened Release on, in, under or emanating from
any Property or resulting from any past, present or future operation of any
member of the Consolidated Group (or any predecessor in interest of any of them)
of any other Person in connection with the business of any member of the
Consolidated Group (or any predecessor in interest of any of them), (ii) any
Release for which any member of the Consolidated Group is otherwise responsible
under the Environmental Laws, (iii) any other circumstance (including, without
limitation, any off-site transportation of a Contaminant) forming the basis of
any violation or alleged violation of, or liability or alleged liability under,
any Environmental Law by any member of the Consolidated Group (or any
predecessor in interest of any of them), (iv) any Remedial Action required to be
taken by any member of the Consolidated Group under the Environmental Laws, or
(v) any harm, injury or damage to real or personal property, natural resources,
the environment or any Person alleged to have resulted from any of the
foregoing.
"Environmental Costs" shall mean all expenditures made by, all costs, fees,
disbursements and expenses (including, without limitation, any expenses of
engineers, experts, consultants, attorneys, contractors, surveyors, laboratories
and like Persons and costs of investigation and feasibility studies) incurred
by, and all liabilities, obligations and responsibilities assumed or incurred
by, any member of the Consolidated Group for or in respect of (i) any judgments,
fines, penalties, obligations, interest, losses, claims, amounts, impositions,
damages, punitive damages, consequential damages, treble damages or remedial
action paid or taken or agreed to be paid or taken by, due from or assessed
against any member of the Consolidated Group in respect of any Environmental
Claim and (ii) all Remedial Action (including, without limitation, any off-site
transportation of a Contaminant) taken by any member of the Consolidated Group,
whether pursuant to any Environmental Claim or otherwise.
"Environmental Laws" means all laws, rules, regulations, by-laws,
directives, codes, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered thereunder by any Government Authority relating
to pollution or protection of the environment or occupational health and safety,
including, without limitation, laws relating to emissions, discharges, releases
or threatened releases of any waste, pollutant, chemical, hazardous material,
hazardous substance, toxic substance, hazardous waste, special waste, petroleum
or petroleum-derived substance or waste, or any constituent of any such
pollutant material, substance or waste, into the environment (including, without
limitation, ambient air, surface water, ground water, land surface or subsurface
strata) or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of any waste, pollutant,
chemical, hazardous material, hazardous substance, toxic substance, hazardous
waste, special waste, petroleum or petroleum-derived substance or waste.
"Environmental Lien" means any Lien in favor of any Governmental Authority
for Environmental Costs.
"Equity Interests" means partnership interests, limited liability company
interests, shares of stock and other equity interests in or issued by a Person.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" shall mean any Person which is from time to time a member
of a controlled group or a group under common control with Holding within the
meaning of Sections 414(b), 414(c), 414(m) or 414(o) of the Code or Section
4001(a)(14) of ERISA.
"Eurocurrency Differential" shall mean:
(a) Prior to the Covenant Election Effective Date:
(i) 2.50% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is equal to or greater than 3.0:1 for two consecutive
fiscal quarters;
(ii) 2.00% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is equal to or greater than 2.5:1 and less than 3.0:1 for
two consecutive fiscal quarters;
(iii) 1.75% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is equal to or greater than 2.0:1 and less than 2.5:1 for
two consecutive fiscal quarters;
(iv) 1.50% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is less than 2.0:1 for two consecutive fiscal quarters.
(b) On or after the Covenant Election Effective Date:
(i) 2.00% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is equal to or greater than 3.0:1 for two consecutive
fiscal quarters;
(ii) 1.50% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is equal to or greater than 2.5:1 and less than 3.0:1 for
two consecutive fiscal quarters;
(iii) 1.25% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is equal to or greater than 2.0:1 and less than 2.5:1 for
two consecutive fiscal quarters;
(iv) 1.00% if the Total Debt/EBITDA ratio calculated pursuant to
Section 8.22 is less than 2.0:1 for two consecutive fiscal quarters.
"Eurocurrency Interest Determination Date" shall mean the date as of which
LIBOR is determined for a Libor Loan which shall be two Business Days prior to
the commencement of each Interest Period.
"Event of Default" shall mean each of the Events of Default defined in
Section 9.
"FAI" shall mean Furmanite America Inc., a Virginia corporation.
"Federal Funds Effective Rate" shall mean the rate of interest charged by
banks with excess reserves at a Federal Reserve district bank to banks needing
overnight loans to meet reserve requirements.
"FIL" shall mean Furmanite International Limited, an English registered
company and a Subsidiary of Furmanite.
"Financial Statements" shall mean, with respect to any Person, the
statement of financial position (balance sheet) and the statement of earnings,
cash flow and stockholders' (or partners') equity of such Person.
"First Currency" - Section 12.17(a).
"Fiscal Year" shall mean each January 1 - December 31 period.
"Fixed Charge Coverage Ratio" shall mean, for the period in question, in
respect of any Person, the ratio for such Person and its Subsidiaries, of (A)
EBITDA for such Person and its Subsidiaries to (B) their Fixed Charges for such
period.
"Fixed Charges" shall mean, in respect of any Person for any period, as of
any date of calculation, an amount equal to the sum (without duplication) of
(i) all Total Interest Expenses for such Person and its Subsidiaries
during such period, plus
(ii) all payments, distributions or dividends made by such Person to
XANSER, including but not limited to those described in proviso (z) to
Section 8.15(b), plus
(iii) the principal due on all Indebtedness for Borrowed Money of such
Person and its Subsidiaries during such period, plus
(iv) all rents and other amounts allocable to principal that accrue or
have accrued during such period with respect to Capitalized Lease
Obligations of such Person and its Subsidiaries.
"Foreign Guarantor" shall mean a Subsidiary of Holding organized other than
in the US or the UK.
"Foreign Guaranty" - Section 6.5(a).
"Foreign Negative Pledge Agreements" - Section 6.5(a).
"Foreign Pledge Agreement" - Section 6.5(b).
"Foreign Security Agreement" - Section 6.5(a)
"Foreign Subsidiary" shall mean a Subsidiary of Holding organized other
than in the US or the UK.
"FOSI" shall mean Furmanite Offshore Services Inc., a Delaware corporation.
"Furmanite" shall mean Furmanite 1986, a company incorporated under the
laws of England and Wales (registered number 2004499) formerly named Furmanite
1986 Limited formerly named Furmanite PLC.
"GAAP" shall mean: (i) with respect to US Persons, generally accepted
accounting principles (as promulgated in the US by the Financial Accounting
Standards Board or any successor entity) ("US GAAP"), (ii) with respect to UK
Persons, accounting principles and practices generally accepted in the UK ("UK
GAAP"), (iii) with respect to Persons whose accounting principles and practices
are governed by those of another country, the accounting principles and
practices generally accepted in such country and (iv) with respect to Financial
Statements or components thereof determined on an aggregate or consolidated
basis involving one or more US Persons and one or more UK Persons and (if any)
any such other Persons, in accordance with their respective GAAP's but utilizing
US GAAP in connection with any such consolidation or combination.
"Government Authority" shall mean any nation or government (US, UK or
otherwise), any state or political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee" or "Guaranty" shall mean by any Person, any obligation,
contingent or otherwise, of such Person directly or indirectly guaranteeing any
Indebtedness for Borrowed Money or other obligation of any other Person and,
without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness for
Borrowed Money or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods, securities
or services, to take-or-pay, or to maintain financial statement conditions or
otherwise) or (ii) entered into for the purpose of assuring in any other manner
the obligee of such Indebtedness for Borrowed Money or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part), provided that the term "Guarantee" shall not include
endorsements for collection or deposits in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Guarantee Agreements" "Guaranty Agreements" shall mean, individually and
collectively, each US Guaranty, the obligations of Holding under Section 9A of
the Agreement, each Foreign Guaranty and each UK Guaranty.
"Guarantors" shall mean, individually and collectively, each of the US
Guarantors, each of the UK Guarantors and each of the Foreign Guarantors.
"Goodwill" shall mean, with respect to the balance sheet of any Person as
at the date at which the amount thereof shall be determined, the aggregate of
all amounts appearing on the asset side of such balance sheet for goodwill,
patents, patent rights, trademarks, trade names, copyrights, franchises,
treasury stock, organizational expenses, and other similar items, if any, all
determined in accordance with GAAP.
"Holding" - introductory paragraph.
"Indebtedness for Borrowed Money" shall mean (i) all indebtedness of
(including, without limitation, all indebtedness assumed by) a Person in respect
of money borrowed (including, without limitation, the unpaid amount of the
purchase price of any property, incurred for such purpose in lieu of borrowing
money or using available funds to pay said amount, and not constituting an
account payable or expense accrual incurred or assumed in the ordinary course of
business), or evidenced by a promissory note, bond, debenture or other like
obligation to pay money, and including indebtedness under banker's acceptances
and with respect to letters of credit, and (ii) all obligations of (including,
without limitation, all obligations assumed by) a Person (x) constituting a
Capitalized Lease Obligation of such Person, or (y) constituting a Guarantee by
such Person.
"Indemnified Party" - Section 12.3.
"Inland Revenue" shall mean the UK Inland Revenue.
"Insignificant Subsidiary" shall mean a Subsidiary of FAI, the Borrower or
FOSI whose (i) assets constitute less than 10% of the assets of the Consolidated
Group and (ii) whose gross revenues for the most recent fiscal quarter
constitute less than 10% of the consolidated gross revenues of the Consolidated
Group, but only while the foregoing criteria are accurate with respect to such
Subsidiary. Notwithstanding the foregoing, no Subsidiary that is deemed to be a
Significant Subsidiary pursuant to any provision of the Loan Agreement or any
other Loan Document shall be an Insignificant Subsidiary during the time that it
is so deemed to be a Significant Subsidiary.
"Intercompany Note" - Section 8.5.
"Intercompany Subordination Agreement" - Section 6.5.
"Interest Period" - Section 3.4.
"Interest Period Notice" - Section 3.4.
"Issuance Request" - Section 2A.1.
"Issuer" shall mean Bank of Scotland in its capacity as a Bank hereunder
and not in its capacity as Agent. References to the Bank in this Agreement (when
used to refer to Bank of Scotland) shall (without duplication) include such Bank
as Issuer.
"LC Obligations" shall mean the aggregate amount (without duplication) of
all LC Outstandings, Deemed Disbursements and Reimbursement Obligations.
"LC Outstandings" shall mean the aggregate Stated Amount (as it may be
reduced from time to time) of all Letters of Credit issued hereunder and
outstanding at any point in time.
"LC Percentage" shall mean with respect to the ▇▇▇▇▇▇▇▇ ▇▇, the
Eurocurrency Differential minus 0.25%, and with respect to all other Letters of
Credit, the Eurocurrency Differential.
"Letter of Credit" shall mean a letter of credit issued pursuant to Section
2A.2.
"LIBOR" shall mean, for each Interest Period, the per annum rate of
interest at which deposits (in the currency in which the Libor Loan is
denominated) in the amount of the outstanding principal balance of the Libor
Loan are or would be offered for such Interest Period in the London interbank
market at 11:00 A.M. London time two Business Days prior to the start of such
Interest Period by the Agent to prime banks and, in case of variations in rates,
the arithmetic average thereof rounded upward if necessary to the nearest 1/16th
of 1% calculated by the Agent.
"Libor Loan" shall mean a Loan during any period that it bears interest
determined by reference to LIBOR.
"Lien" shall mean any mortgage, deed of trust, security deed, pledge,
security interest, assignment, encumbrance, lien or other charge of any kind or
any other agreement or arrangement having the effect of conferring security
(including any agreement to give any of the foregoing, any lease in the nature
thereof, and any conditional sale or other title retention agreement), any lien
arising by operation of law, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any jurisdiction (or
any similar UK law).
"Loan(s)" shall mean, individually and collectively, each Revolving Credit
Loan.
"Loan Agreement" shall mean this Agreement as it may from time to time be
amended, extended, restated, supplemented or otherwise modified.
"Loan Documents" shall mean, individually and collectively, this Agreement,
the Notes, the Intercompany Note, the Security Documents, the Guarantee
Agreements, the Letters of Credit, the XANSER Subordination Agreement, each
Intercompany Subordination Agreement and all other instruments and agreements
executed in connection herewith and therewith, in each case as amended,
supplemented or otherwise modified from time to time. Without limiting the
generality of the foregoing, each amendment to the Loan Agreement or to any
other Loan Document, each waiver of any provision of the Loan Agreement any
other Loan Document, and each instrument and agreement executed in connection
herewith or therewith shall be deemed to be a Loan Document for all purposes of
this Agreement and the other Loan Documents. Without limiting the generality of
the foregoing, each of the following UK Security Agreements, UK Pledge
Agreements, UK Guaranties and UK IPMs shall be deemed to each be a Loan Document
for all purposes of this Agreement and the other Loan Documents:
1. Fixed and Floating Charge dated May 17, 1991 between the Borrower
and the Agent;
2. Mortgage of Securities dated May 17, 1991 between the Borrower and
the Agent;
3. Guarantee dated September 9, 1991 between Furmanite, FIL, other UK
Guarantors and the Agent;
4. Fixed and Floating Charge dated September 9, 1991 between Furmanite
and the Agent;
5. Mortgage of Securities dated September 9, 1991 between Furmanite
and the Agent;
6. Guarantee dated September 9, 1991 between FIL, other UK Guarantors
and the Agent;
7. Fixed and Floating Charge dated September 9, 1991 between FIL and
the Agent; and
8. Intellectual Property Mortgage Assignment dated September 12, 1991
between FIL and the Agent.
"Loan Parties" shall mean, individually and collectively, Holding, FAI, the
Borrower, FOSI and each of their respective Subsidiaries.
"Local Office Time", when referring to the time of day when funds are to be
made available to the Agent or the Borrower, shall mean the applicable time in
the city where such funds are to be made available.
"Material Adverse Change" in respect of a Person shall mean a material
adverse change in (i) the business, properties, operations, prospects or
condition (financial or otherwise) of such Person or (ii) if such Person is a
Credit Party, the ability of such person to perform, or of the Agent or any Bank
to enforce, the Obligations.
"Material Adverse Effect" in respect of a Person shall mean an effect that
would result in a Material Adverse Change.
"Material Agreement" shall mean all outstanding contracts, agreements,
leases and other understandings to which any Loan Party is a party, or by or
under which a Loan Party or any Subsidiary has any rights or obligations, which
(i) involve the payment to or by any member of the Consolidated Group of an
aggregate of $250,000 (or the equivalent thereof in any other currency, computed
at the Spot Rate) or more or (ii) is otherwise material to a member of the
Consolidated Group.
"Moodys" - Section 8.14.
"Multiemployer Plan" shall mean any employee benefit plan which is a
"multiemployer plan" within the meaning of Section 3(37) of ERISA and to which
the Borrower or any ERISA Affiliate contributes or has been obligated to
contribute.
"Net Income" as to any Person for any period shall mean the consolidated
net income of such Person and its Subsidiaries for such period, determined in
accordance with GAAP.
"Net Income (Adjusted)" as to any Person for any period shall mean the Net
Income of such Person for such period less all extraordinary gains plus all
extraordinary losses included in such Net Income.
"NOK" shall mean lawful currency of Norway.
"NOL" shall mean the net operating loss carryforwards available to XANSER
for U.S. federal income tax purposes.
"Norwegian Holding" shall mean Furmanite Holding AS, a corporation
organized under the laws of Norway.
"Norwegian Facility" shall mean that certain loan agreement dated as of
August 10, 1998 between Christiania. and Norwegian Holding, the note issued
pursuant to the loan agreement and the instruments and documents delivered under
the loan agreement.
"Norwegian LC" shall mean Irrevocable Letter of Credit No. SLC 98/03 dated
October 22, 1998 in the amount of NOK10,225,000 issued by the Issuer to secure
the Norwegian Facility.
"Note" shall mean a Revolving Credit Note and the term "Notes" shall mean
Revolving Credit Notes.
"Notice" shall mean a Notice of Borrowing or a Notice of Conversion, as the
context may indicate.
"Notice of Borrowing" - Section 2.2(a).
"Notice of Conversion" - Section 3.5(b).
"Obligations" shall mean all obligations of the Borrower with respect to
the repayment or performance of any obligations (monetary or otherwise) arising
under or in connection with this Agreement and each other Loan Document.
"Original Agreement" - Recitals.
"Original Banks" shall mean BOS and GiroCredit Bank.
"Other Currency" - Section 12.17(a).
"Other Accounts" shall mean the Deemed Disbursement Account.
"Past-Due Rate" - Section 3.3.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA.
"Pension Plan" shall mean any employee pension benefit plan subject to
Title IV of ERISA and maintained by the Borrower or any ERISA Affiliate or any
such plan to which the Borrower or any ERISA Affiliate is or has been required
to contribute on behalf of any of its employees, other than a Multiemployer
Plan.
"Permits" - Section 10.12.
"Permitted Liens" shall mean (x) the specific Liens listed on Schedule
8.2(g) to this Agreement but not any that the Agent requires to be terminated on
or prior to the Closing Date and (y) Liens permitted by clauses (h) and (i) of
Section 8.2 that are incurred after the Closing Date.
"Person" shall mean and include an individual, a partnership, a corporation
(including a business trust), a joint stock company, a trust, an unincorporated
association, a joint venture or other entity or a government or an agency or
political subdivision thereof.
"Plan" shall mean any "employee benefit plan" (within the meaning of
Section 3(3) of ERISA) maintained by Holding or any ERISA Affiliate or any such
plan to which Holding or any ERISA Affiliate is or has been required to
contribute on behalf of any of its employees, other than a Multiemployer Plan.
"Pledge Agreements" shall mean, individually and collectively, each US
Pledge Agreement, each UK Pledge Agreement and each Foreign Pledge Agreement.
"Property" shall mean any property owned, leased, controlled, used or
operated in the past, present or future by any member of the Consolidated Group.
"Qualification Requirement" - Section 3.7(b).
"Recoveries" shall mean any funds, or substitution or receipts or
collateral, received by the Banks or the Agent (a) from the sale, collection or
other disposition pursuant to the Security Documents of the Collateral, or (b)
from any distribution to any of the Banks or the Agent, or abandonment to any of
them, or substitute Lien or payment given to any of them pursuant to events or
proceedings of the nature referred to in Section 9.7 of the Agreement, or
otherwise, and which distribution or abandonment pertains to the Collateral.
"Regulatory Change" means, relative to any Issuer, any Bank or Bank
Assignee, any change after the Closing Date in any (or the adoption after the
Closing Date of any new):
(a) United States Federal, state or local law or foreign law
applicable to the Issuer, any Bank or Bank Assignee; or
(b) regulation, interpretation, directive, or request (whether or not
having the force of law) applying to the Issuer or such Bank or Bank
Assignee of any court or governmental authority charged with the
interpretation or administration of any law referred to in clause (a) or of
any fiscal, monetary, central bank or other authority having jurisdiction
over the Issuer or such Bank or Bank Assignee.
"Reimbursement Obligation" - Section 2A.4.
"Release" shall mean any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, pouring, emptying, escaping,
dumping, discarding, leaching or migration of a Contaminant into the indoor or
outdoor environment or into or out of any property, including without limitation
the movement of Contaminants through, on or in the air, soil, surface water or
groundwater or the abandonment or discarding of barrels, containers and other
closed receptacles containing any Contaminant.
"Release of Deficiency Undertaking" - Section 6.3.
"Remedial Action" shall mean all actions taken or required to be taken to
(i) clean up, remove, treat or in any other way address Contaminants in the
indoor or outdoor environment, (ii) prevent a Release or condition that is
reasonably likely to result in a Release or minimize further release of
Contaminants so they do not migrate or endanger or threaten to endanger present
or future public health or welfare or the indoor or outdoor environment, (iii)
perform pre-remedial studies and investigations and post-remedial monitoring and
care, or (iv) cure any other violation of any Environmental Laws.
"Reportable Event" shall mean a Reportable Event described in Section 4043
of ERISA and the regulations issued thereunder.
"Required Banks" as of a particular date shall mean (a) while any of the
Commitments are in effect, one or more Banks (two or more, at any time when
there are more than two Banks party to the Agreement) whose Commitments
aggregate at least 60% of the Total Commitments or (b) if at the time none of
the Commitments are in effect, one (two, at any time when there are more than
two Banks party to the Agreement) or more Banks (or other holders of Notes)
holding at least 60% of the aggregate unpaid principal amount of all Loans, LC
Outstandings and Reimbursement Obligations at the particular time outstanding.
"Revolving Credit Loan" - Section 2.1(b).
"Revolving Credit Loan Commitment" shall mean, for each Bank, the amount
set forth opposite its name on Schedule 2.1 to this Agreement under the heading
"Revolving Credit Loan Commitment", as the same from time to time may be reduced
or terminated pursuant to Section 2.8, Section 9 or any other section of the
Agreement.
"Revolving Credit Note" - Section 2.3(a).
"Satisfactory Subordination Agreement" shall mean a subordination agreement
in form and substance satisfactory to the Agent which subordinates (in manner,
form and scope satisfactory to the Agent) the obligations specified therein
(i.e., to a Person other than the Agent or the Banks) to all obligations of the
member of the Consolidated Group executing same to the Agent and the Banks.
"S&P" - Section 8.14.
"SEC" shall mean the US Securities and Exchange Commission or any successor
entity.
"Security Agreements" shall mean, individually and collectively, each UK
Security Agreement, the Borrower Security Agreement, each US Security Agreement,
each US IPM, each UK IPM and each Foreign Security Agreement.
"Security Documents" shall be the collective reference to (i) each of the
agreements referred to in Section 6 and (if, as and when executed) in Sections
7.20 and 12.14 pursuant to which Collateral is intended to be granted to the
Agent on behalf of the Banks, (ii) the sections of the Agreement pursuant to
which the Other Accounts are established, (iii) [intentionally deleted], and
(iv) all amendments, supplements or other modifications to such agreements and
sections or replacements thereof. The term "Security Documents" includes without
limitation the Security Agreements, the Pledge Agreements and the Guarantee
Agreements. However, as to a Credit Party, the term "Security Document" shall
not include any such document as to which the Credit Party party thereto is
released from all its obligations thereunder by the Agent or the Banks in
accordance with the terms hereof or thereof and shall not thereafter be
considered a "Security Document" as to such Credit Party.
"Significant Subsidiary" shall mean all members of the Consolidated Group
that are organized in the UK, the US, France or Australia and any other member
of the Consolidated Group whose (i) assets constitute 10% or more of the assets
of the Consolidated Group taken as a whole or (ii) whose gross revenues for the
most recent fiscal quarter constitute 10% or more of the consolidated gross
revenues of the Consolidated Group.
"Site (UK)" shall mean the following real property located in the UK: (a)
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇; (b) ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇; and (c) ▇▇▇▇▇ Road, Skippers Lane
Industrial Estate, South Bank, Middlesbrough, Cleveland, England.
"Solvent" shall mean, with respect to any Person, that the fair saleable
value of the tangible and intangible property (including goodwill) of such
Person is, on the date of determination, greater than the total amount of
liabilities of such Person as of such date (including contingent liabilities of
such Person to the extent such Person considers it probable that it shall
actually be liable thereon) and that, as of such date, such Person is able to
pay all Indebtedness for Borrowed Money of such Person as such Indebtedness for
Borrowed Money matures. When used in respect of the Borrower and other Persons
organized in the UK, "Solvent" shall also mean that such Person is not unable to
pay its debts within the meaning of section 123 of the Insolvency ▇▇▇ ▇▇▇▇ and
the comparable provisions of any successor statute.
"Spot Rate" shall mean, for any day, the rate of exchange for two (four, as
used in Section 3A.1) Business Days' forward delivery quoted by the Agent's New
York office in New York City for the purchase of one currency with another (or,
if the Agent is not then quoting such a rate, such rate shown on page WRLD of
the Reuters screen) in New York City at 11:00 A.M. (New York time) on such day
or, if such day is not a Business Day, on either the next preceding or the next
succeeding Business Day, at the election of the Agent.
"Stated Amount" shall mean, as to each Letter of Credit, the maximum amount
payable thereunder to the beneficiary thereof upon compliance with the terms and
conditions stated therein, as such amount may be reduced from time to time.
"Stated Expiry Date" - Section 2A.1(b).
"Sterling" means the lawful currency of the United Kingdom.
"Subordination Agreements" shall mean, individually and collectively, the
XANSER Subordination Agreement, each Intercompany Subordination Agreement, each
Satisfactory Subordination Agreement and each subordination agreement executed
in connection with loans permitted by clause (xi) of Section 8.3 and by Section
8.5 and each other subordination agreement as well as the subordination
provisions contained in any note or other agreement pursuant to which (in any
such case) any obligation of any Credit Party or any obligation running in favor
of such Credit Party is subordinated to any obligation owed by Holding, the
Borrower or any other Credit Party to the Agent and the Banks.
"Subsidiary" of any Person shall mean any other firm, corporation,
partnership, trust or other unincorporated organization or association or other
enterprise, 50% or more of the indicia of equity rights (whether capital stock
or otherwise) of which is at the time owned, directly or indirectly, by such
Person and/or by one or more of such Person's Subsidiaries.
"Supervening Event Notice" - Section 2.2(d).
"Tangible Assets" of a Person shall mean, as at any date at which the
amount thereof shall be determined, all the assets of such Person less the
amount of any write-up in the book value of any assets resulting from the
revaluation thereof, less the aggregate of all amounts appearing on the asset
side of the balance sheet for goodwill, patents, patent rights, trademarks,
trade names, copyrights, franchises, treasury stock, organizational expenses,
prepaid expenses and other similar items, if any, all determined in accordance
with GAAP.
"Tangible Net Worth" of a Person shall mean, as at any date at which the
amount thereof shall be determined, the amount by which the total shareholders'
or partners' equity of such Person exceeds the sum of (x) the amount of any
write-up in the book value of any assets resulting from the revaluation thereof,
or any write-up in excess of the cost of assets acquired, and (y) Goodwill, if
any, all determined in accordance with GAAP.
"Tax Allocation Agreement" shall mean the tax allocation agreement referred
to in Section 6.11, as said agreement may from time to time be amended,
supplemented or otherwise modified with the consent of the Required Banks.
"Taxes" - Section 5.2.
"Termination Event" shall mean (i) a Reportable Event described in Section
4043 of ERISA and the regulations issued thereunder (other than a Reportable
Event not subject to the provision for 30-day notice to the PBGC under such
regulations), or (ii) the withdrawal of the Borrower or any of its ERISA
Affiliates from a Pension Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA, or (iii) the filing of a
notice of intent to terminate a Pension Plan or the treatment of a Pension Plan
amendment as a termination under Section 4041 of ERISA, or (iv) receipt by the
Borrower or any ERISA Affiliate of notice of the PBGC's intention to terminate
any Pension Plan or to have a trustee appointed to administer any Pension Plan
or (v) the PBGC, or (vi) any other event or condition which might constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan.
"Total Commitments" shall mean the aggregate of the Total Revolving Credit
Loan Commitment.
"Total Debt" shall mean all Indebtedness for Borrowed Money (regardless of
the maturity date thereof) other than indebtedness owed by any member of the
Consolidated Group to another member of the Consolidated Group.
"Total Interest Expense" shall mean, in respect of any Person for any
period, as of any date of calculation, the total interest expense of such Person
and its Subsidiaries for such period determined in accordance with GAAP.
"Total Revolving Credit Loan Commitment" shall mean, on any date, the sum
of the Revolving Credit Loan Commitments of all the Banks, as in effect from
time to time.
"Transfer" - Section 8.9.
"Type" shall mean either a Base Rate (US) Loan or a Libor Loan.
"UCC" - Section 10.15.
"UK" shall mean the United Kingdom.
"UK Bank" shall mean The Governor and Company of the Bank of Scotland.
"UK Guarantors" shall mean each Subsidiary of Holding (other than the
Borrower) organized in the UK.
"UK Guaranty" - Section 6.5(e).
"UK IPM" - Section 6.5(e).
"UK Pledge Agreement" - Section 6.5(e).
"UK Security Agreement" - Section 6.5(e).
"UK Statutes" - Section 10.15.
"UK Subsidiaries" shall mean Subsidiaries of Holding organized under the
laws of the UK.
"Unutilized Revolving Commitments" shall mean the amount by which the Total
Revolving Credit Loan Commitment at any time exceeds the sum of (x) the
aggregate principal amount of Revolving Credit Loans then outstanding plus (y)
the Dollar Equivalent of LC Obligations.
"US" shall mean the United States.
"US Guarantors" shall mean Holding and each Subsidiary of Holding organized
under the laws of the US.
"US Guaranty" - Section 6.5(a).
"US IPM" - Section 6.5(c).
"US Pledge Agreement" - Section 6.5(b).
"US Security Agreement" - Section 6.5(a).
"US Subsidiaries" shall mean Subsidiaries of Holding organized under the
laws of the US.
"Written" or "in writing" shall mean any form of written communication or a
communication by means of telex, telecopier device, telegraph or cable.
"XANSER" shall mean Xanser Corporation, a Delaware corporation, formerly
known as Kaneb Services, Inc.
"XANSER Management Agreement" shall mean that the Agreement dated as of
August 1, 1991 with an effective date of March 1, 1991 between Kaneb Services,
Inc. and Kaneb UK PLC with respect to certain services to be provided by XANSER
to the Borrower and XANSER's compensation therefor.
"XANSER Subordination Agreement" shall mean a subordination agreement
substantially in the form of Exhibit S to the Loan Agreement and relating to
(among other items) the XANSER Management Agreement, as such agreement may from
time to time be amended, supplemented or otherwise modified.