EXHIBIT 10.5
[EXECUTION COPY]
AMENDMENT NO. 3 TO CREDIT AGREEMENT
AMENDMENT NO. 3 dated as of July 14, 2003 to the Third Amended and
Restated Term Loan and Revolving Credit Agreement dated as of August 2, 2002 (as
heretofore amended, the "Credit Agreement") among XXXXXX XXXXXXX LLC (the
"Company"), the Borrowing Subsidiaries (as defined therein), the GUARANTORS
party thereto, the LENDERS party thereto (the "Lenders") and BANK OF AMERICA,
N.A., as Administrative Agent (the "Administrative Agent") and Collateral Agent,
and BANC OF AMERICA SECURITIES LLC, as Lead Arranger and Book Manager.
W I T N E S S E T H :
WHEREAS, the Company has requested that the Lenders agree to modify
certain provisions of the Credit Agreement, and the undersigned Lenders have so
agreed, all on the terms and conditions contained herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 . Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit Agreement
has the meaning assigned to such term in the Credit Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Credit Agreement shall, after this Amendment becomes effective,
refer to the Credit Agreement as amended hereby.
Section 2 . Waivers Under Credit Agreement. The undersigned Lenders
waive compliance with Sections 5.16, 6.04, 6.11 and 6.12 of the Credit Agreement
to the extent, and only to the extent, necessary for the Company and its
Affiliates to consummate the Exchange Transactions; provided that (a) the
Exchange Transactions shall be consummated pursuant to documentation (including
without limitation the subordination, dividend and other terms of the New
Preferred Stock or any other securities, other than common stock or common stock
equivalents of the Parent, issued in such Exchange Transaction) containing the
principal terms set forth on Schedules 6.17(a) and 6.17(b) hereto and such other
terms not materially prejudicial to the interests of the Lenders as may be
satisfactory in form and substance to the Administrative Agent and (b) no
Potential Default or Event of Default shall exist on any Exchange Closing Date
after giving effect to the Exchange Transactions occurring on such date.
Section 3 . Amendments to Credit Agreement. (a) The following
definitions are added to Section 1.01 of the Credit Agreement in the proper
alphabetical order:
"Amendment No. 3" shall mean Amendment No. 3 to this Agreement
dated as of July 14, 2003.
"Amendment No. 3 Effective Date" shall mean the effective date
of Amendment No. 3.
"Continental Finance Company Ltd." shall mean Continental
Finance Company Ltd., a Bermuda company.
"European Guarantor Subsidiaries" shall mean (i) FW Energie
B.V., (ii) Xxxxxx Xxxxxxx Europe Limited and (iii) Xxxxxx Xxxxxxx
Continental U.S., Inc.
"Exchange Closing Date" shall mean, with respect to any
Exchange Transaction, the date of consummation of such Exchange
Transaction.
"Exchange Transactions" shall mean the transactions (including
the transfer, cancellation and setoff of certain intercompany
obligations) described in Exhibits A-1 and A-2 to Amendment No. 3.
"Exempt Foreign Subsidiary" shall mean any Foreign Subsidiary
that is a "controlled foreign corporation" under the Code other than
FWPI Ltd., FW European E&C Ltd., Continental Finance Company Ltd. and
the First-Tier Foreign Subsidiaries.
"First-Tier Foreign Subsidiaries" shall mean (i) F.W. Gestao E
Servicos S.A., (ii) Xxxxxx Xxxxxxx Canadian Resources Limited, (iii) La
Societe D'Energie Xxxxxx Xxxxxxx Ltee, (iv) Calabria Ambiente S.P.A.,
(v) Xxxxxx Xxxxxxx Power Systems S.A., (vi) Xxxxxxxxx Process Systems
GmbH, (vii) HFM Tray Canada, (viii) Xxxxxx Xxxxxxx Ingenieros y
Constructores S.A. de C.V., (ix) Xxxxxx Xxxxxxx America Latina, Ltda.,
(x) P.E. Consultants, Inc., (xi) Oy Bioflow A.B., (xii) Xxxxxx Xxxxxxx
Power Machinery Company Limited, (xiii) Xxxxxx Xxxxxxx Constructores de
Mexico S. de X.X. de C.V., (xiv) Xxxxxx Xxxxxxx Caribe Corporation,
C.A., (xv) Xxxxxx Xxxxxxx Adibi Engineering, (xvi) Xxxxxx Xxxxxxx
Australia Proprietary Limited, (xvii) Xxxxxx Xxxxxxx Continental B.V.,
(xviii) Xxxxxx Xxxxxxx N.V., (xix) Xxxxxx Xxxxxxx Europe B.V., (xx)
Xxxxxx Xxxxxxx Bimas Birlesik Insaat ve Muhendisik A.S., (xxi) Xxxxxx
Xxxxxxx Vietnam Private LTD, (xxii) Xxxxxx Xxxxxxx Andina S.A., (xxiii)
Xxxxxx Xxxxxxx (Malaysia) Sdn. Bhd. and (xxiv) Xxxxxx Xxxxxxx
(Thailand) Limited.
"Xxxxxx Xxxxxxx Continental U.S., Inc." shall mean Xxxxxx
Xxxxxxx Continental U.S., Inc., a Delaware corporation.
"Xxxxxx Xxxxxxx Energia Oy" shall mean Xxxxxx Xxxxxxx Energia
Oy, a Finnish company.
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"Xxxxxx Xxxxxxx Europe Limited" shall mean Xxxxxx Xxxxxxx
Europe Limited, a company organized under the laws of the United
Kingdom.
"Xxxxxx Xxxxxxx Holdings" shall mean Xxxxxx Xxxxxxx Holdings
Ltd., a Bermuda company formerly known as Foreign Holdings Ltd.
"Xxxxxx Xxxxxxx Iberia, S.A." shall mean Xxxxxx Xxxxxxx Iberia,
S.A., a Spanish company.
"FW European E&C Ltd." shall mean FW European E&C Ltd., a
Bermuda company.
"FW Energie B.V." shall mean FW Energie B.V., a Dutch company.
"FW Hungary Licensing LLC" shall mean FW Hungary Licensing LLC,
a Hungarian company.
"FW Netherlands C.V." shall mean FW Netherlands C.V., a Dutch
partnership.
"FWEEC Preferred Stock" shall mean the preferred stock to be
issued by FW European E&C Ltd. in the Exchange Transactions in exchange
for the Convertible Subordinated Notes, which shall contain the
principal terms set forth on Schedule 6.17(b) hereto and such other
terms not materially prejudicial to the interests of the Lenders as may
be satisfactory in form and substance to the Administrative Agent.
"FWH Preferred Stock" shall mean the preferred stock to be
issued by Xxxxxx Xxxxxxx Holdings in the Exchange Transactions in
exchange for the Trust Preferred, which shall contain the principal
terms set forth on Schedule 6.17(a) hereto and such other terms not
materially prejudicial to the interests of the Lenders as may be
satisfactory in form and substance to the Administrative Agent.
"FWPI Ltd." shall mean FWPI Ltd., a Bermuda company.
"New Credit Parties" shall mean FWPI Ltd., FW European E&C
Ltd., Continental Finance Company Ltd., the European Guarantor
Subsidiaries and the Non-CFC Foreign Subsidiaries.
"New Preferred Stock" shall mean the FWH Preferred Stock and/or
the FWEEC Preferred Stock.
"Non-CFC Foreign Subsidiaries" shall mean (i) Financial
Services S.a.r.l., a Luxembourg company, (ii) Xxxxxx Xxxxxxx Trading
Company, Ltd., a Bermuda company, (iii) Xxxxxx Xxxxxxx International
Trading (Shanghai) Company, a Chinese company, (iv) Xxxxxx Xxxxxxx
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International Engineering & Consulting (Shanghai) Company Limited, a
Chinese company, (v) Perryville Service Company Limited, a Bermuda
company, (vi) FW Hungary Licensing LLC, (vii) FW Overseas Operations
Limited, a Channel Islands company, (viii) Xxxxxx Xxxxxxx Trading Co.
AG., S.A., a Spanish company, (ix) FW Management Operations, Ltd., a
Bermuda company, (x) Manops Limited, a Cyprian company, and (xi) Xxxxxx
Xxxxxxx Petroleum Services S.A.E., an Egyptian company.
"Permitted Intercompany Indebtedness" shall mean Indebtedness
of the Company or any of its Subsidiaries owed to the Company or any of
its Subsidiaries existing on the Amendment No. 3 Effective Date if (i)
such Indebtedness is permitted by Sections 6.03 and 6.04 and (ii) the
Collateral Agent has a valid and perfected first-priority Lien on such
Indebtedness in accordance with, and subject to the limitations
contained in, Section 5.15(a)(ii) with respect to any such Indebtedness
held by any Non-CFC Foreign Subsidiary or any European Guarantor
Subsidiary.
"Reduction Condition" shall have the meaning set forth in
Section 2.09(b)(iii).
"Reduction Fee" shall have the meaning set forth in Section
2.09(b)(iii).
(b) The definition of "Applicable Margin" contained in
Section 1.01 of the Credit Agreement is amended by:
(i) In clause (i) thereof, (A) replacing the
percentage specified therein with "6.00%" and (B)
inserting "(the "Euro-Rate Margin")" at the end
thereof;
(ii) In clause (ii) thereof, (A) replacing the
percentage specified therein with "5.00%" and (B)
inserting "(the "Base Rate Margin")" at the end
thereof;
(iii) Inserting "(a)" before "the Applicable
Margin" in the proviso at the end thereof;
(iv) Inserting at the end of such proviso ",
(b) subject to clause (c) below, commencing on March
31, 2004 (or, if such day is not a Business Day, the
last Business Day of such month), the Euro-Rate Margin
and the Base Rate Margin shall each increase by 0.50%
on the last Business Day of each March, June, September
and December, and (c) upon the satisfaction in full of
the Reduction Condition, the Euro-Rate Margin shall be
reduced to 4.75% and the Base Rate Margin shall be
reduced to 3.75%, and the periodic increases of such
margins described in the preceding clause (b) shall
terminate".
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(c) The definition of "Collateral and Guarantee
Requirement" contained in Section 1.01 of the Credit Agreement
is amended by:
(i) inserting ", subject to the limitations set
forth on Schedule 5.15, and FW Netherlands C.V. shall
have pledged 66% of the Equity Interests in FW Energie
B.V." at the end of clause (a) thereof;
(ii) inserting "and the Equity Interests owned
by FW Netherlands C.V. in FW Energie B.V. required by
clause (a) above to be pledged" after "owned directly
by any Credit Party" in clause (b) thereof;
(iii) replacing "Foreign Subsidiary" with
"Exempt Foreign Subsidiary" each time such term appears
in clause (b) thereof;
(iv) inserting ", each Non-CFC Subsidiary, each
European Guarantor Subsidiary and each First-Tier
Foreign Subsidiary" after the parenthetical in clause
(c) thereof; and
(v) inserting "and FW Netherlands C.V." after
"each Credit Party" in clause (f) thereof;
(d) The definition of "Consolidated Net Income"
contained in Section 1.01 of the Credit Agreement is amended by
(i) replacing the word "and" at the end of clause (iv) of the
proviso with a comma and (ii) inserting the following new
clause (vi) after clause (v) thereof: "and (vi) any expense
during such period in respect of the Reduction Fee".
(e) The definition of "Foreign Subsidiary" contained in
Section 1.01 of the Credit Agreement is amended by deleting
"(i)", the word "or" at the end of clause (i) thereof and the
entire clause (ii) thereof.
(f) The definition of "Guarantors" contained in Section
1.01 of the Credit Agreement is amended by (i) deleting the
second occurrence of "Wholly-Owned Domestic" in the first
sentence thereof and (ii) inserting "or 6.17(c)" after "Section
5.15".
(g) The definition of "Restricted Payment" contained in
Section 1.01 of the Credit Agreement is amended by adding "or
the New Preferred Stock" after "Trust Preferred" in clause (ii)
thereof.
(h) Each reference to "Foreign Holdings" contained in
any Loan Document is replaced with "Xxxxxx Xxxxxxx Holdings".
(i) Section 2.09(b) of the Credit Agreement is amended
by inserting the following as a new paragraph (iii) thereto:
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(iii) In consideration for the amendments and
waivers contained in Amendment No. 3, the Company shall
be obligated to pay to each Lender a fee (the
"Reduction Fee") in an amount equal to 5.00% of the
aggregate amount of each Lender's Credit Exposure as of
the Amendment No. 3 Effective Date. The Reduction Fee
will, subject only to (x) the adjustment as set forth
in the next paragraph and (y) such reductions in amount
and/or postponement in time for payment as may be
approved in writing by the Required Lenders, be fully
and irrevocably earned and accrued as of the Amendment
No. 3 Effective Date but payable on March 31, 2004 (or
such earlier date of termination of Commitments,
acceleration of Loans and/or demand for Cash
Collateral, in each case in accordance with Section
7.02) (the "Reduction Fee Payment Date") unless, on or
prior to such date, the Company has, since the
Amendment No. 3 Effective Date, prepaid at least
$100,000,000 of Loans and, to the extent such
prepayment is in respect of Revolving Credit Loans,
permanently reduced the related Commitments by an equal
amount (if such prepayment and reduction (if any) is
effected on or prior to the Reduction Fee Payment Date,
the "Reduction Condition" will have been satisfied).
If subsequent to the Amendment No. 3 Effective
Date and prior to the Reduction Fee Payment Date some
but less than $100,000,000 of Loans have been repaid
(with, to the extent such prepayment is in respect of
Revolving Credit Loans, a permanent reduction of the
related Commitments in an equal amount), the Reduction
Fee actually payable on the Reduction Fee Payment Date
shall be reduced to (A) 5.00% times (B) (x)
$100,000,000 minus the amount of Loans that, subsequent
to the Amendment No. 3 Effective Date and prior to the
Reduction Fee Payment Date and after giving effect to
any repayments and permanent Commitment reductions on
such date, have been repaid (with, to the extent such
prepayment is in respect of Revolving Credit Loans, a
permanent reduction of the related Commitments in an
equal amount) divided by (y) $100,000,000 times (C) the
amount of each Lender's Credit Exposure on the
Reduction Fee Payment Date (after giving effect to any
repayments and permanent Commitment reductions on such
date).
(j) Section 5.01(d) is amended by inserting (i) "(i)"
after "in addition" in the second sentence thereof and (ii) the
following text at the end of the second sentence thereof: " and
(ii) attach an organizational chart showing the corporate
structure of the Parent and all of its Subsidiaries,
substantially similar in form and scope to the organizational
charts delivered as a condition to the effectiveness of
Amendment No. 3".
(k) Section 5.15(a) of the Credit Agreement is amended
by:
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(i) Inserting "(i)(A)" at the beginning of the
first sentence thereof;
(ii) Inserting "and (B) if (x) any Non-CFC
Foreign Subsidiary is formed or acquired or (y) any
Foreign Subsidiary becomes a Non-CFC Foreign
Subsidiary, in each case after the Amendment No. 3
Effective Date," before "the Company will within 15
Business Days thereafter" in the first sentence
thereof;
(iii) Deleting "Wholly-Owned Domestic" the last
two times it appears in the first sentence thereof; and
(iv) Inserting the following as a new paragraph
(ii) thereof:
(ii) Within 45 days after the Amendment No. 3
Effective Date (or 90 days after the Amendment No. 3
Effective Date in the case of the pledge of the Equity
Interests in Xxxxxx Xxxxxxx Iberia, S.A.), the Company
will (A) cause the Collateral and Guarantee Requirement
to be satisfied with respect to each Non-CFC Foreign
Subsidiary, each European Guarantor Subsidiary and each
First-Tier Foreign Subsidiary (including without
limitation a pledge of any Equity Interest in or
Indebtedness of each Non-CFC Foreign Subsidiary, each
European Guarantor Subsidiary and each First-Tier
Foreign Subsidiary owned directly by any Credit Party
and all Permitted Intercompany Indebtedness) and (B)
deliver to the Administrative Agent and the Collateral
Agent legal opinions of (w) King & Spalding LLP,
special New York counsel to the Credit Parties, (x)
Xxxxxx X. X'Xxxxx, General Counsel of the Company, (y)
special Bermuda counsel to the Credit Parties
designated by the Company and acceptable to the
Administrative Agent, and (z) such other foreign
counsel as may be requested by the Administrative Agent
in relation to the satisfaction of the Collateral and
Guarantee Requirement, each in form and substance
satisfactory to it. If (I) one or more Credit Parties
shall have pledged 66% of the Equity Interests in a
Foreign Subsidiary pursuant to the Loan Documents and
(II) the Administrative Agent determines, after
consultation with the Company, that the pledge by such
Credit Parties of additional Equity Interests in such
Foreign Subsidiary would not result in any material
adverse tax and other consequences to the Company and
its Subsidiaries, the Company will cause the Collateral
and Guarantee Requirement to be satisfied with respect
to such additional Equity Interests.
(v) Inserting "(iii)" before "If after the
Effective Date any Credit Party acquires any real or
personal property".
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(l) Section 5.16 of the Credit Agreement is amended by (i)
deleting "Wholly-Owned Domestic" each time its appears in the first
sentence of subsection (a) thereof and (ii) inserting the following new
subsection (c) at the end thereof:
(c) The Company shall cause FW Netherlands C.V. and FW
Energie B.V. to own all of the shares of capital stock and
other ownership interests of FW Energie B.V. and Xxxxxx Xxxxxxx
Energia Oy, respectively, except in each case pursuant to a
transaction otherwise permitted under this Agreement by virtue
of which the Company divests its entire direct and indirect
ownership interest in such Subsidiary.
(m) Article 5 of the Credit Agreement is amended by inserting
the following new Section 5.17 at the end thereof:
Section 5.17. Periodic Updates on Asset Sales. From and
after the Amendment No. 3 Effective Date, the Company will, and
will cause its Subsidiaries to, provide to Ernst & Young
Corporate Finance LLC ("EYCF") from time to time promptly upon
request therefor periodic updates on the status of the proposed
sales of the Finnish and European E&C businesses and any
information related thereto that EYCF may reasonably request.
(n) Section 6.05 of the Credit Agreement is amended by (i)
inserting the following text after "no business activity" in each of
subsections (b) and (c): "(including without limitation the creation,
incurrence or assumption of any Debt or Liens)" and (ii) inserting the
following new subsections at the end thereof:
(d) Other than (v) activities necessary to maintain its
existence, (w) the issuance of Permitted Intercompany
Indebtedness, (x) participation in the Exchange Transactions,
(y) asset sales otherwise permitted under this Agreement and
(z) as otherwise set forth in any of clauses (i) through (v)
below:
(i) FWPI Ltd. shall engage in no business
activity (including without limitation the creation,
incurrence or assumption of any Debt or Liens) other
than holding the Equity Interests of FW European E&C
Ltd. and activities reasonably incidental thereto;
(ii) FW European E&C Ltd. shall engage in no
business activity (including without limitation the
creation, incurrence or assumption of any Debt or
Liens) other than holding the Equity Interests of
Xxxxxx Xxxxxxx International Holdings, Inc. and
Continental Finance Company Ltd. and activities
reasonably incidental thereto;
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(iii) Continental Finance Company Ltd. shall
engage in no business activity (including without
limitation the creation, incurrence or assumption of
any Debt or Liens) other than holding the Equity
Interests of Perryville Service Company Limited,
Financial Services S.a.r.l., Xxxxxx Xxxxxxx Trading
Company, Ltd., FW Management Operations, Ltd., FW
Technologies Holding, LLC and FW Overseas Operations
Limited and activities reasonably incidental thereto;
(iv) neither FW Netherlands C.V. nor FW Energie
B.V. shall engage in any business activity (including
without limitation the creation, incurrence or
assumption of any Debt or Liens) other than (A) holding
the Equity Interests of FW Energie B.V. and Xxxxxx
Xxxxxxx Energie Oy, respectively, and activities
reasonably incidental thereto and (B) the formation by
FW Netherlands C.V. of a Foreign Subsidiary that is
organized under Spanish law and the transfer to such
Foreign Subsidiary of the Equity Interests in FW
Energie B.V., provided that (x) such transfer of the
Equity Interests in FW Energie B.V. shall be subject to
the Lien granted pursuant to the Collateral Documents
and (y) following any such formation and transfer, this
Section 6.05(d)(iv) and clause (A) above shall be
deemed to apply to FW Netherlands C.V., such Spanish
Subsidiary and FW Energie B.V. and their respective
ownership interests in their respective Subsidiaries;
and
(v) FW Hungary Licensing shall engage in no
business activity (including without limitation the
creation, incurrence or assumption of any Debt or
Liens) other than licensing the international
intellectual property rights of the Company and its
Domestic Subsidiaries to the Foreign Subsidiaries and
other foreign Persons in the ordinary course of
business consistent with past practice and activities
reasonably incidental thereto.
(e) The Company shall not permit any Significant
Foreign Subsidiary or any Foreign Subsidiary that owns Equity
Interests in any Significant Foreign Subsidiary to create,
incur, assume or suffer to exist any Debt or Liens, other than
(i) Debt and Liens created or evidenced by the Loan Documents,
(ii) in the case of any such Foreign Subsidiary that is itself
an operating company, Debt and Liens otherwise permitted by the
Loan Documents arising in the ordinary course of business and
(iii) in respect of Permitted Intercompany Indebtedness.
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(o) Section 6.07(a) of the Credit Agreement is amended by:
(i) Inserting ", any Guarantor" after "any other
Borrower" in clause (a) thereof;
(ii) Inserting (A) "or another Guarantor" after
"another Borrower" and (B) "or such Guarantor" after "such
Borrower", in each case in clause (ii) of the proviso thereto;
(p) Section 6.07(d) of the Credit Agreement is deleted.
(q) Section 6.09 is amended by inserting "Except as permitted
with respect to the New Preferred Stock," at the beginning of the first
sentence thereof.
(r) Section 6.10(b) is amended by deleting "Wholly-Owned
Domestic" each time it appears in such subsection (including in the
proviso at the end thereof).
(s) Section 6.11 of the Credit Agreement is amended by:
(i) Inserting "; provided that any Restricted Payments
in respect of any New Preferred Stock shall also be subject to
clause (vii) below" at the end of clause (ii) thereof;
(ii) Deleting "and" at the end of clause (v) thereof;
(iii) Inserting "; and" at the end of clause (vi)
thereof; and
(iv) Inserting the following as a new clause (vii) at
the end the thereof: "(vii) (A) any New Preferred Stock may be
exchanged for common stock of the Parent and (B) so long as no
Potential Default or Event of Default has occurred and is
continuing at the time of such declaration or payment,
regularly quarterly dividends on the New Preferred Stock may be
declared and paid at the rates and at the times set forth
therein (without giving effect to any amendment thereof unless
consented to by the Required Lenders as provided in Section
6.14)".
(t) Section 6.14 of the Credit Agreement is amended by (i)
inserting "or any document" after "instrument", (ii) inserting "(a)"
before "any Subordinated Indebtedness" and (iii) inserting "or (b) any
New Preferred Stock, in each case" before "without the consent of the
Required Lenders".
(u) Section 6.16(b) is amended by (i) deleting "which is a
Lender (or an Affiliate thereof)" and (ii) replacing "its" with "such".
(v) Section 6.17 of the Credit Agreement is inserted to read as
follows:
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Section 6.17. Consummation of Exchange Offers. None of
the Parent, Xxxxxx Xxxxxxx Holdings or the Company shall, and
none shall not permit any Subsidiary to, consummate any
Exchange Transaction unless:
(a) the Administrative Agent and the Collateral Agent
shall have received legal opinions of (i) King & Spalding LLP,
special New York counsel to the Credit Parties, (ii) Xxxxxx X.
X'Xxxxx, General Counsel of the Company, (iii) special Bermuda
counsel to the Credit Parties designated by the Company and
acceptable to the Administrative Agent, and (iv) such other
foreign counsel as may be requested by the Administrative Agent
in relation to the satisfaction of the Collateral and Guarantee
Requirement, each dated such Exchange Closing Date, in form and
substance satisfactory to it;
(b) the Administrative Agent (i) shall have received
executed copies of the definitive documentation for such
Exchange Transaction (including without limitation the terms of
any New Preferred Stock or other securities to be issued in
such Exchange Transaction) and (ii) shall be satisfied that
such Exchange Transaction (including without limitation the
terms of any New Preferred Stock or other securities, other
than common stock or common stock equivalents of the Parent, to
be issued in such Exchange Transaction) shall be consummated on
the principal terms set forth on Schedules 6.17(a) and 6.17(b),
as applicable, and such other terms not materially prejudicial
to the interests of the Lenders as may be satisfactory in form
and substance to the Administrative Agent;
(c) the Collateral and Guarantee Requirement shall have
been satisfied with respect to any Credit Party (including the
New Credit Parties but excluding the European Guarantor
Subsidiaries, the Non-CFC Foreign Subsidiaries and the
First-Tier Foreign Subsidiaries as to which Section 5.15(a)(ii)
applies) in existence on such Exchange Closing Date;
(d) the Administrative Agent shall have received an
organizational chart, in form, substance and detail
satisfactory to the Administrative Agent, showing the corporate
structure of the Parent and all of its Subsidiaries immediately
after giving effect to such Exchange Transaction;
(e) after giving effect to such Exchange Transaction,
(i) the representations and warranties set forth in the Loan
Documents shall be true and correct in all material respects on
and as of such Exchange Closing Date (except with respect to
representations and warranties which specifically refer to an
earlier date, which shall be true and correct in all material
respects as of such earlier date) and (ii) no Potential Default
or Event of Default will have occurred and be continuing on
such date; and
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(f) the Administrative Agent shall have received
evidence satisfactory to it of the payment by the Company (or
provision for payment) of all fees and expenses owed by it
pursuant to the Credit Agreement (including without limitation
the fees and expenses of Xxxxx Xxxx & Xxxxxxxx and Xxxxx &
Young Corporate Finance LLC) for which invoices have
theretofore been rendered.
(w) Section 6.18 of the Credit Agreement is inserted to read as
follows:
Section 6.18. Payments on Junior Securities. None of
the Parent, Xxxxxx Xxxxxxx Holdings or the Company shall, and
none shall not permit any Subsidiary to, permit (i) the
aggregate amount of cash dividends paid on the New Preferred
Stock in any twelve-month period plus the aggregate amount of
cash interest paid on the Convertible Subordinated Notes in
such twelve-month period plus the aggregate amount of cash
interest paid on the Xxxxxxx Obligations in such twelve-month
period to exceed (ii) the aggregate amount of cash interest
paid on the Convertible Subordinated Notes and the Xxxxxxx
Obligations during the twelve-month period ending on the
Amendment No. 3 Effective Date.
(x) Section 7.01(f) of the Credit Agreement is amended by:
(i) Inserting (A) "(x)" before the word "Indebtedness",
(B) "or (y) any New Preferred Stock" after the defined term
"Debt Instrument" and (C) "or such New Preferred Stock" after
each of "covered thereby" and "such Indebtedness", in each case
in clause (i) thereof;
(ii) Inserting (A) "or any New Preferred Stock" after
"Debt Instrument" and (B) "or such New Preferred Stock" after
each of "covered thereby" and "such Indebtedness", in each case
in clause (ii) thereof; and
(iii) Inserting "or any New Preferred Stock" after
"Exit Funding Agreement" in clause (iii) thereof.
(y) Schedules 5.15, 6.17(a) and 6.17(b) hereto are added to the
Credit Agreement as Schedules 5.15, 6.17(a) and 6.17(b) thereto.
(z) Exhibit C to the Credit Agreement is amended by inserting
the following new paragraph after the fifth paragraph thereof:
Attached hereto as Schedule 6 is an organizational
chart showing the corporate structure of the Parent and all of
its Subsidiaries as of the end of the most recently completed
fiscal quarter and identifying as of such date (i) each Credit
Party, (ii) each SPS, (iii) each entity with cash on its
balance sheet in excess of $1,000,000 and (iv) each entity with
cash on its balance sheet in excess of $50,000,000.
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SECTION 4. Representations of the Company. The Company
represents and warrants that (i) the representations and
warranties set forth in the Loan Documents will be true and
correct in all material respects on and as of the Amendment No.
3 Effective Date (except with respect to representations and
warranties which specifically refer to an earlier date, which
shall be true and correct in all material respects as of such
earlier date) and (ii) no Potential Default or Event of Default
will have occurred and be continuing on such date.
SECTION 5. Governing Law. This Amendment shall be
governed by and construed in accordance with the laws of the
State of New York.
SECTION 6. Counterparts. This Amendment may be signed
in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
SECTION 7. Effectiveness. This Amendment shall become
effective as of the Effective Date when the following
conditions are met (the "Amendment No. 3 Effective Date"):
(a) the Administrative Agent shall have received from
each of the Company, each Borrowing Subsidiary, each other
Guarantor and the Required Lenders a counterpart hereof signed
by such party or facsimile or other written confirmation (in
form satisfactory to the Administrative Agent) that such party
has signed a counterpart hereof;
(b) the Administrative Agent shall have received
organizational charts, in form, substance and detail
satisfactory to the Administrative Agent, showing the corporate
structure of the Parent and all of its Subsidiaries (i) as of
the Amendment No. 3 Effective Date and (ii) after giving effect
to the Exchange Transactions;
(c) the Administrative Agent shall have received from
the Company, for the account of each Lender that has evidenced
its agreement hereto as provided in subsection (a) above by
12:00 p.m. (New York City time) on the later of (i) July 14,
2003 and (ii) the date on which the Administrative Agent issues
a notice to the Lenders stating that the condition set forth in
subsection (a) above has been satisfied, an amendment fee in an
amount equal to 1.00% of such Lender's Credit Exposure;
(d) the Administrative Agent shall have received a work
fee for the account of the Administrative Agent in an amount as
previously agreed between the Company and the Administrative
Agent; and
13
(e) the Administrative Agent shall have received
evidence satisfactory to it of the payment by the Company (or
provision for payment) of all fees and expenses owed by it
pursuant to the Credit Agreement (including without limitation
the fees and expenses of Xxxxx Xxxx &Wardwell and Ernst &Young
Corporate Finance LLC) for which invoices have theretofore been
rendered.
14
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
ATTEST: XXXXXX XXXXXXX LLC
By: Xxxxxx Xxxxxxx Holdings Ltd.
(formerly known as Foreign Holdings
Ltd.), its sole member
By: /s/X.X. Xxxxx By: /s/Xxxx X. Xxxx
---------------------------- ----------------------------------
Name: X.X. Xxxxx Name: Xxxx X. Xxxx
Title: CFO Title: Treasurer
XXXXXX XXXXXXX USA
CORPORATION
By: /s/Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: Treasurer
XXXXXX XXXXXXX POWER GROUP, INC.
By: /s/Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: Treasurer
XXXXXX XXXXXXX ENERGY
CORPORATION
By: /s/Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: Treasurer
XXXXXX XXXXXXX LTD.
By: /s/Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: Treasurer
XXXXXX XXXXXXX HOLDINGS LTD.
(formerly known as Foreign Holdings
Ltd.)
By: /s/Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: Treasurer
XXXXXX XXXXXXX INC.
By: /s/Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: Treasurer
XXXXXX XXXXXXX
INTERNATIONAL HOLDINGS, INC.
By: /s/Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: Treasurer
EQUIPMENT CONSULTANTS, INC.
XXXXXX XXXXXXX ASIA LIMITED
XXXXXX XXXXXXX CAPITAL & FINANCE CORPORATION
XXXXXX XXXXXXX CONSTRUCTORS, INC.
XXXXXX XXXXXXX DEVELOPMENT CORPORATION
XXXXXX XXXXXXX ENERGY MANUFACTURING, INC.
XXXXXX XXXXXXX ENERGY SERVICES, INC.
XXXXXX XXXXXXX ENVIRESPONSE, INC.
XXXXXX XXXXXXX ENVIRONMENTAL CORPORATION
XXXXXX XXXXXXX FACILITIES MANAGEMENT, INC.
XXXXXX XXXXXXX INTERNATIONAL CORPORATION
XXXXXX XXXXXXX POWER SYSTEMS, INC.
XXXXXX XXXXXXX PYROPOWER, INC.
XXXXXX XXXXXXX REAL ESTATE DEVELOPMENT CORP.
XXXXXX XXXXXXX REALTY SERVICES, INC.
XXXXXX XXXXXXX VIRGIN ISLANDS, INC.
XXXXXX XXXXXXX XXXX, INC.
FW MORTSHAL, INC.
FW TECHNOLOGIES HOLDING, LLC
HFM INTERNATIONAL, INC.
PROCESS CONSULTANTS, INC.
PYROPOWER OPERATING SERVICES COMPANY, INC.
By: /s/ Xxxx X. Xxxx
----------------------------------------
Name: Xxxx X. Xxxx
Title: Treasurer
PERRYVILLE III TRUST
By: THE BANK OF NEW YORK, not in its
individual capacity but solely in its
capacity as the Owner Trustee of the
Perryville III Trust
By: /s/Xxxxxx Mate
----------------------------------------
Name: Xxxxxx Mate
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ X.X. Xxxxx
----------------------------------------
Name: X.X. Xxxxx
Title: Managing Director
BANC OF AMERICA STRATEGIC SOLUTIONS, INC.
By: /s/ X.X. Xxxxx
----------------------------------------
Name: X.X. Xxxxx
Title: Managing Director
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: Director
ABN AMRO BANK N.V.
By: /s/Xxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Group Senior Vice President
By: /s/Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
THE ROYAL BANK OF SCOTLAND PLC
By: /s/Xxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Xxxx Xxxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By:
----------------------------------------
Name:
Title:
MARINER LDC
By: /s/X. Xxxx XX
----------------------------------------
Name: X. Xxxx XX
Title: Director
DEUTSCHE BANK AG NEW YORK
BRANCH AND/OR CAYMAN ISLANDS BRANCH
By: /s/Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
By: /s/Xxxx X. Hineyman
----------------------------------------
Name: Xxxx X. Hineyman
Title:
BNP PARIBAS
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
THE BAUPOST GROUP SECURITIES LLC
By: /s/Xxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Principal
SOCIETE GENERALE, NEW YORK BRANCH
By: /s/Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
CITADEL WELLINGTON PARTNERS L.P.
By: Citadel Limited Partnership, its General
Partner
By: GLB Partners, L.P., its General Partner
By: Citadel Investment Group, L.L.C., its
General Partner
By: /s/Xxxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Managing Director
LIBERTYVIEW FUND LLC
By: /s/Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
ORIX FINANCE CORP I
By: /s/ Xxxxxxxx X.X. Xxxxx, Xx.
----------------------------------------
Name: Xxxxxxxx X.X. Xxxxx, Xx
Title: Authorized Representative
Schedule 5.15
Limitations on Collateral and Guarantee Requirement
Foreign Subsidiaries
--------------------
Any assets of FWPI Ltd., FW European E&C Ltd., Continental Finance Company Ltd.,
the Non-CFC Foreign Subsidiaries, the European Guarantor Subsidiaries, the
First-Tier Foreign Subsidiaries and their respective Subsidiaries, in each case
that constitute Restricted Collateral, shall secure only the Obligations of the
pledgor in respect of the Term Loans and Letter of Credit Obligations.
Non-CFC Foreign Subsidiaries
----------------------------
The Company and its Subsidiaries shall not be required to pledge the 5% of the
Equity Interests in Xxxxxx Xxxxxxx Petroleum Services S.A.E. (Egypt) that are
not held by FW Management Operations, Ltd. (Bermuda).
FW Netherlands C.V. and FW Energia B.V.
---------------------------------------
The Lenders shall not be entitled to, and shall not, enforce the Lien on the
Equity Interests in FW Netherlands C.V. unless and until the Lenders' rights to
enforce the Lien on the Equity Interests in FW Energie B.V. shall have
effectively terminated, either voluntarily or involuntarily. In no event shall
the Lenders be entitled to enforce both the former and the latter.
Xxxxxx Xxxxxxx Power Group, Inc. shall not be required to pledge more than 66%
of the Equity Interests owned by it in FW Netherlands C.V.
FW Energie B.V. shall not be required to pledge any Equity Interests owned by it
in Xxxxxx Xxxxxxx Energia Oy.
Xxxxxx Xxxxxxx Europe Limited
-----------------------------
The Lenders shall not be entitled to, and shall not, enforce the Lien on the
Equity Interests in Xxxxxx Xxxxxxx Europe Limited unless and until the Lenders'
rights to enforce the Lien on the Equity Interests in either Xxxxxx Xxxxxxx
Limited (England) or Xxxxxx Xxxxxxx Continental Europe S.r.l. (Italy) shall have
effectively terminated, either voluntarily or involuntarily. In no event shall
the Lenders be entitled to enforce both the former and the latter.
Xxxxxx Xxxxxxx International Corporation shall not be required to pledge more
than 66% of the Equity Interests owned by it in Xxxxxx Xxxxxxx Europe Limited.
Xxxxxx Xxxxxxx Europe Limited shall not be required to pledge (i) any Equity
Interests owned by it in Xxxxxx Xxxxxxx Continental U.S., Inc. or (ii) more than
66% of the Equity Interests owned by it in Xxxxxx Xxxxxxx Continental Europe
S.r.l.
Xxxxxx Xxxxxxx Iberia, S.A.
---------------------------
If the Company transfers the assets of Xxxxxx Xxxxxxx Iberia, S.A. to Xxxxxx
Xxxxxxx Energia Oy and Xxxxxx Xxxxxxx Italiana, S.p.A. as described in Exhibit B
to Amendment No. 3, the guarantee of the Obligations by Xxxxxx Xxxxxxx
Continental U.S., Inc. and/or the Lien on the Equity Interests of Xxxxxx Xxxxxxx
Iberia, S.A. granted pursuant to the Collateral Documents shall be released if
the Company within 15 days prior to such transfer has delivered to the
Administrative Agent a certificate signed by a Responsible Officer stating that
failure to release such guarantee and/or Lien would result in a material tax
liability or have a detrimental effect on such companies', Xxxxxx Xxxxxxx
Continental Europe S.r.l.'s or any of its other Subsidiaries' access to banking
or bonding.
First-Tier Foreign Subsidiaries
-------------------------------
No Foreign Subsidiary shall pledge any Equity Interests owned by it in any
First-Tier Foreign Subsidiary.
