FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (the “Supplemental Indenture”), dated as of October 28, 2005, to the Indenture made by and among Xxxxxx Xxxxxxx LLC, a limited liability company organized under the laws of Delaware (the “Company”), the guarantors set forth on Exhibit A hereto and Xxxxx Fargo Bank, National Association (the “Trustee”), dated September 24, 2004 (the “Indenture”).
W I T N E S S E T HWHEREAS, the Company has issued 10.359% Senior Notes Due September 15, 2011, Series A guaranteed by Xxxxxx Xxxxxxx Ltd. (“Parent”) and the subsidiary guarantors set forth in the Indenture (together with Parent, the “Guarantors”) (the “2011 Notes”), pursuant to the Indenture;
WHEREAS, the Company desires to amend the Indenture for the purpose of changing and eliminating certain provisions;
WHEREAS, Section 9.02 of the Indenture provides that the Indenture may be amended, subject to certain exceptions, with the consent of the Holders of a majority in aggregate principal amount of the outstanding 2011 Notes;
WHEREAS, the Company has received consents to the following amendments from the holders of at least a majority in aggregate principal amount of the outstanding 2011 Notes; and
WHEREAS, all conditions precedent to amend the Indenture and to make this First Supplemental Indenture a valid and binding instrument in accordance with its terms have been satisfied.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company, the Guarantors and the Trustee agree as follows:
ARTICLE IEFFECTIVENESS AND EFFECT
SECTION 1.01. Effectiveness and Effect.
This First Supplemental Indenture shall take effect on the date hereof. The provisions set forth in this First Supplemental Indenture shall be deemed to be, and shall be construed as part of, the Indenture. All references to the Indenture in the Indenture or in any other agreement, document or instrument delivered in connection therewith or pursuant thereto shall be deemed to refer to the Indenture as amended by this First Supplemental Indenture.
ARTICLE II
AMENDMENT OF CERTAIN PROVISIONS OF THE INDENTURE
(a) The section headings and the text of Sections 4.03, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.14, 4.15, 4.16, 5.01, 5.02, 6.01(3), 6.01(5), 6.01(6) and 10.02(b) of the Indenture are hereby deleted and eliminated in their entirety and replaced with “[Intentionally Deleted by Amendment]”.
(b) The Indenture shall be amended by deleting Section 6.01(7) in its entirety, as it currently reads, and by substituting in its place a new Section 6.01(7) as follows:
“an involuntary case or other proceeding is commenced against the Company or Parent with respect to it or its debts under bankruptcy, insolvency or other similar law now or hereafter in
effect seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding remains undismissed and unstayed for a period of 60 days; or an order for relief is entered against the Company or Parent under U.S. federal bankruptcy laws as now or hereafter in effect;”
(c) The Indenture shall be amended by deleting Section 6.01(8) in its entirety, as it currently reads, and by substituting in its place a new Section 6.01(8) as follows:
“the Company or Parent (i) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (ii) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or Parent, or for all or substantially all of the property and assets of the Company or Parent or (iii) effects any general assignment for the benefit of creditors;”
(d) All references in the Indenture, as amended by this Section 2.01, to any of the provisions deleted and eliminated as provided above, or to terms defined in such provisions, shall also be deemed deleted and eliminated.
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ARTICLE III MISCELLANEOUS |
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SECTION 3.01. Indenture Effective. |
Except as amended and supplemented hereby, the Indenture is hereby ratified and confirmed in all respects and shall remain in full force and effect.
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SECTION 3.02. Amendment; Discharge. |
No provisions of this First Supplemental Indenture may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the parties hereto.
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SECTION 3.03. Notices. |
All notices provided hereunder shall be deemed made when delivered to the principal executive offices of the party to be notified.
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SECTION 3.04. Governing Law. |
This First Supplemental Indenture shall be governed by and construed in accordance with the internal laws of the State of New York applicable to agreements made and to be performed entirely within such State, without regard to the conflicts of law principles of such State.
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SECTION 3.05. Counterparts. |
This First Supplemental Indenture may be executed in counterparts, each of which when so executed shall be an original, but all such counterparts shall together constitute one and the same instruments.
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SECTION 3.06. Trustee. |
The Trustee makes no representations as to the validity or sufficiency of this First Supplemental Indenture. The statements and recitals herein are deemed to be those of the Company not of the Trustee.
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SECTION 3.07. Trust Indenture Act to Control. |
If and to the extent that any provision of this First Supplemental Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 318, inclusive, of the TIA, such imposed duties shall control. If any provision of this First Supplemental Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the TIA provision shall be deemed to apply to this First Supplemental Indenture as so modified or excluded, as the case may be.
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SECTION 3.08. Headings. |
The titles and headings of the articles and sections of this First Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
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SECTION 3.09. Separability. |
In case any one or more of the provisions contained in this First Supplemental Indenture shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this First Supplemental Indenture, but this First Supplemental Indenture shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
SECTION 3.10. Benefits of Supplemental Indenture.
Nothing in this First Supplemental Indenture or Indenture, express or implied shall give to any Person, other than the parties hereto and thereto and their successors hereunder and thereunder, any benefit of any legal or equitable right, remedy or claim under the Indenture or this First Supplemental Indenture.
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SECTION 3.11. Assignment. |
The Company will have the right at all times to assign any of its respective rights or obligations under this First Supplemental Indenture to a direct or indirect wholly owned Subsidiary of the Company; provided that, in the event of any such assignment, the Company will remain liable for all such obligations. Subject to the foregoing, this First Supplemental Indenture is binding upon and inures to the benefit of the parties hereto and their respective successors and assigns. This First Supplemental Indenture may not otherwise be assigned by the parties thereto.
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SECTION 3.12. Definitions. |
Capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Indenture.
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IN WITNESS WHEREOF, each of the parties hereto and each Guarantor has caused this First Supplemental Indenture to be executed and delivered as of the date first written above.
| XXXXXX XXXXXXX LLC, as issuer | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Vice President & Treasurer | |
| XXXXX FARGO BANK, NATIONAL | |
| ASSOCIATION, | |
| Not in its individual capacity, but solely as Trustee | |
| By: /s/ Xxxx X. Xxxxxxxxx | |
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| Name: Xxxx X. Xxxxxxxxx | |
| Title: Vice President | |
| XXXXXX XXXXXXX LTD., as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Vice President & Treasurer | |
| CONTINENTAL FINANCE COMPANY LTD., as | |
| Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Vice President & Treasurer | |
| EQUIPMENT CONSULTANTS, INC., as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer | |
| FINANCIAL SERVICES, S.A.R.L., as Guarantor | |
| By: /s/ Xxxxxx X. Xxxxxx | |
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| Name: Xxxxxx X. Xxxxxx | |
| Title: Manager |
[Signature Page to First Supplemental Indenture]
| XXXXXX XXXXXXX ASIA LIMITED, as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Vice President & Treasurer | |
| XXXXXX XXXXXXX ASIA PACIFIC PTE LTD., as | |
| Guarantor | |
| By: /s/ Xxxx X. X. Xxxxxx | |
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| Name: Xxxx X. X. Xxxxxx | |
| Title: Director | |
| XXXXXX XXXXXXX CANADA, LTD., as | |
| Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer | |
| XXXXXX XXXXXXX CARIBE CORPORATION, | |
| C.A., as Guarantor | |
| By: /s/ W. Xxxx Xxxxx | |
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| Name: W. Xxxx Xxxxx | |
| Title: President | |
| XXXXXX XXXXXXX CONTINENTAL B.V., as | |
| Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Managing Director | |
| XXXXXX XXXXXXX CONSTRUCTORS, INC., as | |
| Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer |
[Signature Page to First Supplemental Indenture]
| XXXXXX XXXXXXX DEVELOPMENT | |
| CORPORATION, as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer | |
| XXXXXX XXXXXXX ENERGY CORPORATION, | |
| as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer | |
| XXXXXX XXXXXXX ENERGY | |
| MANUFACTURING, INC., as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer | |
| XXXXXX XXXXXXX ENERGY SERVICES, INC., | |
| as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer | |
| XXXXXX XXXXXXX ENVIRONMENTAL | |
| CORPORATION, as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer | |
| XXXXXX XXXXXXX EUROPE B.V., as Guarantor | |
| By: /s/ Xxxx Xxxxx Xxxxxxx | |
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| Name: Xxxx Xxxxx Xxxxxxx | |
| Title: Managing Director |
[Signature Page to First Supplemental Indenture]
| XXXXXX XXXXXXX EUROPE LIMITED, as | |
| Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Director | |
| XXXXXX XXXXXXX FACILITIES | |
| MANAGEMENT, INC., as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer: | |
| XXXXXX XXXXXXX HOLDINGS LTD., as | |
| Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer | |
| XXXXXX XXXXXXX INC., as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer | |
| XXXXXX XXXXXXX INTERCONTINENTAL | |
| CORPORATION, as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer | |
| XXXXXX XXXXXXX INTERNATIONAL | |
| CORPORATION, as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer |
[Signature Page to First Supplemental Indenture]
| XXXXXX XXXXXXX INTERNATIONAL | |
| HOLDINGS, INC., as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer | |
| XXXXXX XXXXXXX (MALAYSIA) SDN. BHD, as | |
| Guarantor | |
| By: /s/ Xxxxx Xxxxxxxxx | |
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| Name: Xxxxx Xxxxxxxxx | |
| Title: Managing Director | |
| XXXXXX XXXXXXX MIDDLE EAST | |
| CORPORATION, as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Vice President & Treasurer | |
| XXXXXX XXXXXXX NORTH AMERICA CORP., | |
| as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer | |
| XXXXXX XXXXXXX PETROLEUM SERVICES | |
| S.A.E., as Guarantor | |
| By: /s/ Xxxxx Xxxxxxxxx | |
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| Name: Xxxxx Xxxxxxxxx | |
| Title: Chairman | |
| XXXXXX XXXXXXX POWER COMPANY | |
| LTD./LA SOCIÉTÉ D’ENERGIE XXXXXX | |
| XXXXXXX LTÉE, as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxx | |
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| Name: Xxxxxxx Xxxxxx | |
| Title: Vice President & Controller |
[Signature Page to First Supplemental Indenture]
| XXXXXX XXXXXXX POWER CORPORATION, as | |
| Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer | |
| XXXXXX XXXXXXX POWER SYSTEMS, INC., as | |
| Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer | |
| XXXXXX XXXXXXX PYROPOWER, INC., as | |
| Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer | |
| XXXXXX XXXXXXX REAL ESTATE | |
| DEVELOPMENT CORP., as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: President & Treasurer | |
| XXXXXX XXXXXXX REALTY SERVICES, INC., | |
| as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: President & Treasurer | |
| XXXXXX XXXXXXX USA CORPORATION, as | |
| Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer |
[Signature Page to First Supplemental Indenture]
| XXXXXX XXXXXXX VIRGIN ISLANDS, INC., as | |
| Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer | |
| XXXXXX XXXXXXX XXXX, INC., as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer | |
| FW ENERGIE B.V., as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxx | |
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| Name: Xxxxxxx Xxxxxx | |
| Title: Director | |
| F.W. GESTAO E SERVICOS, S.A., as Guarantor | |
| By: /s/ Xxxxx X. Xxxxxxxxx | |
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| Name: Xxxxx X. Xxxxxxxxx | |
| Title: Director | |
| By: /s/ N. Xxxxxxxxxxx Xxxx | |
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| Name: N. Xxxxxxxxxxx Xxxx | |
| Title: Director | |
| FW HUNGARY LICENSING LIMITED | |
| LIABILITY COMPANY, as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Managing Director | |
| FW MANAGEMENT OPERATIONS, LTD., as | |
| Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Vice President & Treasurer |
[Signature Page to First Supplemental Indenture]
| FW OVERSEAS OPERATIONS LIMITED, as | |
| Guarantor | |
| By: /s/ Xxxx Xxxxx Xxxxxxx | |
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| Name: Xxxx Xxxxx Xxxxxxx | |
| Title: Director | |
| MANOPS LIMITED, as Guarantor | |
| By: /s/ N. Xxxxxxxxxxx Xxxx | |
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| Name: N. Xxxxxxxxxxx Xxxx | |
| Title: Director | |
| P.E. CONSULTANTS, INC., as Guarantor | |
| By: /s/ Xxxxx X. Xxxxxxxxx | |
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| Name: Xxxxx X. Xxxxxxxxx | |
| Title: Director | |
| PERRYVILLE III TRUST | |
| A trust formed under the laws of New York | |
| By: Xxxxxx Xxxxxxx LLC, as Owner Trustee of the | |
| Perryville III Trust | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Vice President & Treasurer | |
| PERRYVILLE SERVICE COMPANY LTD., as | |
| Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasuer | |
| PROCESS CONSULTANTS, INC., as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer |
[Signature Page to First Supplemental Indenture]
| PYROPOWER OPERATING SERVICES | |
| COMPANY, INC., as Guarantor | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
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| Name: Xxxxxxx Xxxxxxxx | |
| Title: Treasurer | |
| XXXXXXXXX PROCESS SYSTEMS GMBH, as | |
| Guarantor | |
| By: /s/ Xxxxx XxXxxxx | |
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| Name: Xxxxx XxXxxxx | |
| Title: Managing Director |
[Signature Page to First Supplemental Indenture]
Exhibit A
Guarantors
| Xxxxxx Xxxxxxx Ltd. |
| Continental Finance Company Ltd. |
| Equipment Consultants, Inc. |
| Financial Services, S.A.R.L. |
| Xxxxxx Xxxxxxx Asia Limited |
| Xxxxxx Xxxxxxx Asia Pacific Pte. Ltd. |
| Xxxxxx Xxxxxxx Canada Ltd. |
| Xxxxxx Xxxxxxx Caribe Corporation, C.A. |
| Xxxxxx Xxxxxxx Continental B.V. |
| Xxxxxx Xxxxxxx Constructors, Inc. |
| Xxxxxx Xxxxxxx Development Corporation |
| Xxxxxx Xxxxxxx Energy Corporation |
| Xxxxxx Xxxxxxx Energy Manufacturing, Inc. |
| Xxxxxx Xxxxxxx Energy Services, Inc. |
| Xxxxxx Xxxxxxx Environmental Corporation |
| Xxxxxx Xxxxxxx Europe B.V. |
| Xxxxxx Xxxxxxx Europe Limited |
| Xxxxxx Xxxxxxx Facilities Management, Inc. |
| Xxxxxx Xxxxxxx Holdings Ltd. |
| Xxxxxx Xxxxxxx Inc. |
| Xxxxxx Xxxxxxx Intercontinental Corporation |
| Xxxxxx Xxxxxxx International Corporation |
| Xxxxxx Xxxxxxx International Holdings, Inc. |
| Xxxxxx Xxxxxxx (Malaysia) Sdn. Bhd. |
| Xxxxxx Xxxxxxx Middle East Corporation |
| Xxxxxx Xxxxxxx North America Corp. |
| Xxxxxx Xxxxxxx Petroleum Services S.A.E. |
| Xxxxxx Xxxxxxx Power Company Ltd. / La Societe D’Energie Xxxxxx Xxxxxxx |
| Ltee. |
| Xxxxxx Xxxxxxx Power Corporation |
| Xxxxxx Xxxxxxx Power Systems, Inc. |
| Xxxxxx Xxxxxxx Pyropower, Inc. |
| Xxxxxx Xxxxxxx Real Estate Development Corp. |
| Xxxxxx Xxxxxxx Realty Services, Inc. |
| Xxxxxx Xxxxxxx USA Corporation |
| Xxxxxx Xxxxxxx Virgin Islands, Inc. |
| Xxxxxx Xxxxxxx Xxxx, Inc. |
| FW Energie B.V. |
| F.W. Gestao E Servicos, S.A. |
| FW Hungary Licensing limited Liability Company |
| FW Management Operations Ltd. |
| FW Overseas Operations Ltd. |
| Manops Limited |
| P.E. Consultants, Inc. |
| Perryville III Trust |
| Perryville Service Company Ltd. |
| Process Consultants, Inc. |
| Pyropower Operating Services Company, Inc. |
| Xxxxxxxxx Process Systems GmbH |
