EXECUTION COPY
AMENDMENT NO. 1
TO PURCHASE, SALE AND CONTRIBUTION AGREEMENT
AMENDMENT NO. 1, dated as of July 31, 2003 (this "Amendment"),
to the PURCHASE, SALE AND CONTRIBUTION AGREEMENT, dated as of August 15, 2002
(as amended, restated, supplemented or otherwise modified from time to time, the
"Purchase Agreement"), by and among the parties identified on the signature
pages hereof as the "Originators" (each an "Originator" and collectively, the
"Originators"), XXXXXX XXXXXXX FUNDING II LLC, a Delaware limited liability
company (the "Company"), as successor by assignment to Xxxxxx Xxxxxxx Funding
LLC, a Delaware limited liability company (the "Original Company"), pursuant to
the Assignment and Assumption (Purchase Agreement) referred to below, and XXXXXX
XXXXXXX INC., a Delaware corporation ("Xxxxxx Xxxxxxx Inc."), as the servicer
(in such capacity, the "Servicer") and as successor to the Original Servicer (as
hereinafter defined).
WHEREAS, the Original Company, the Originators and Xxxxxx
Xxxxxxx Capital & Finance Corporation, a Delaware corporation (the "Original
Servicer"), are parties to the Purchase Agreement;
WHEREAS, on the date hereof, pursuant to the Assignment and
Assumption (Purchase Agreement) dated as of the date hereof, by and among the
Original Company, as assignor, the Company, as assignee, the Originators, the
Original Servicer and the Servicer (the "Assignment and Assumption (Purchase
Agreement)"), (i) the Original Servicer has resigned as servicer and the
Servicer has been appointed as the new servicer, and (ii) the Original Company
has assigned to the Company, and the Company has assumed, all of the Original
Company's right, title and interest in, to and under the Purchase Agreement as
of the date set forth therein;
WHEREAS, on the date hereof, pursuant to the Receivables
Repurchase Agreement, dated as of the date hereof, by and among the Original
Company, the Company, the Originators and the Servicer (the "Receivables
Transfer Agreement"), the Original Company, the Originators and the Company will
effect the Transfers (as defined in Section 4 hereof);
WHEREAS, the Company, as borrower and as successor by
assignment to the Original Company, the Lenders party thereto (the "Lenders")
and XXXXX FARGO FOOTHILL, INC., as the arranger and administrative agent for the
Lenders (in such capacity, the "Agent"), are parties to the Loan and Security
Agreement, dated as of August 15, 2002, as amended (as further amended,
restated, supplemented or otherwise modified from time to time, the "Loan and
Security Agreement");
WHEREAS, the Lenders and the Agent are third party
beneficiaries of the rights of the Company under the Purchase Agreement, and all
of the Company's rights, title and interests in, to and under the Purchase
Agreement (but none of its obligations) have been collaterally assigned to the
Agent, for the benefit of the Agent and the Lenders, pursuant to the Loan and
Security Agreement;
WHEREAS, on the date hereof, the Company, the Lenders and the
Agent are entering into Amendment No. 3 to Loan and Security Agreement (the
"Loan Agreement Amendment"); and
WHEREAS, in connection with the Loan Agreement Amendment, the
Company, the Servicer and the Originators desire to amend the Purchase Agreement
in accordance with the terms and conditions set forth herein, and the Agent and
the Lenders are willing to consent to such amendment in accordance with such
terms and conditions;
NOW THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Definitions. Any capitalized term used herein and not
defined herein shall have the meaning assigned to it in the Purchase Agreement.
2. Amendments. The Purchase Agreement is hereby amended as
follows:
2.1. Preamble. The preamble to the Purchase Agreement is
amended in its entirety to read as follows:
"THIS PURCHASE, SALE AND CONTRIBUTION
AGREEMENT (this "Agreement"), dated as of August 15,
2002, is among XXXXXX XXXXXXX INC., a Delaware
corporation ("Xxxxxx Xxxxxxx Inc."), as the successor
to Xxxxxx Xxxxxxx Finance & Capital Corporation and
servicer hereunder (in such capacity, the
"Servicer"), XXXXXX XXXXXXX CONSTRUCTORS, INC.
("Constructors"), a Delaware corporation, XXXXXX
XXXXXXX ENERGY CORPORATION ("Energy"), a Delaware
corporation, XXXXXX XXXXXXX USA CORPORATION ("USA"),
a Delaware corporation, XXXXXX XXXXXXX POWER GROUP,
INC. ("Power"), a Delaware corporation, XXXXXX
XXXXXXX XXXX, INC. ("Zack"), a Delaware corporation,
XXXXXX XXXXXXX ENERGY SERVICES, INC. ("Energy
Services"), a California corporation (Constructors,
Energy, USA, Power, Zack and Energy Services and the
originators described in Section 10.12 are herein
collectively called the "Originators" and
individually called an "Originator"), and XXXXXX
XXXXXXX FUNDING II LLC, a Delaware limited liability
company (the "Company"), as successor by assignment
to Xxxxxx Xxxxxxx Funding LLC, a Delaware limited
liability company (the "Original Company"), pursuant
to the Assignment and Assumption (Purchase Agreement)
(as hereinafter defined)."
2.2. Existing Definitions.
(a) The definition of the term "Contribution
Amount" in the Definition Section of the Purchase Agreement is amended in its
entirety to read as follows:
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"'Contribution Amount' means, with respect
to any contributed Receivable, the net book value of
the contributed property as set forth on the books
and records of the applicable Originator; for
purposes of this Agreement, "net book value" shall
mean the book value, less all applicable reserves
determined by the Originator in accordance with
GAAP."
(b) The definition of the term "Market
Value" in the Definition Section of the Purchase Agreement is amended in its
entirety to read as follows:
"'Market Value' means, with respect to any
Receivable and the Related Rights, (i) in the case of
the Receivables purchased by, or contributed to, the
Company prior to July 31, 2003, 99% of the
Outstanding Balance of such Receivable, and (ii) in
the case of Receivables purchased by, or contributed
to, the Company on or after July 31, 2003, 100% of
the Outstanding Balance of such Receivable."
2.3. New Definitions.
(a) The definition of the new term
"Applicable Cash Percentage" is inserted in the Definition Section of the
Purchase Agreement, to read as follows:
"'Applicable Cash Percentage' means, with
respect to any reduction in the Purchase Price or
Market Value of any Eligible Account pursuant to
Section 3.3, the portion, expressed as a percentage,
of the initial Purchase Price of such Eligible
Account paid in cash by the Company pursuant to
Section 3.1 or 3.2, provided that in no event shall
the Applicable Cash Percentage be less than 85%".
(b) The definition of the new term
"Applicable Note Percentage" is inserted in the Definition Section of the
Purchase Agreement, to read as follows:
"'Applicable Note Percentage' means, with
respect to any reduction in the Purchase Price or
Market Value of any Eligible Account pursuant to
Section 3.3, the portion, expressed as a percentage,
of the initial Purchase Price of such Eligible
Account paid by increasing the principal amount of
the applicable Company Note pursuant to Section 3.1
or 3.2, provided that in no event shall the
Applicable Note Percentage be greater than 15%."
(c) The definition of the new term
"Applicable Refund Percentage" is inserted in the Definition Section of the
Purchase Agreement, to read as follows:
"'Applicable Refund Percentage' means, with
respect to any refund of any portion of a Transaction
Fee pursuant to 3.3(d) in connection with a reduction
in the Market Value of a Receivable, a fraction,
expressed as a percentage (A) the numerator of which
shall be equal to the amount of such reduction, and
(B) the denominator of which shall be equal to the
original Outstanding Balance of such Receivable."
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(d) The definition of the new term
"Borrowing Base Report" is inserted in the Definition Section of the Purchase
Agreement, to read as follows:
"'Borrowing Base Report' has the meaning
given to it in the Reporting Agreement".
(e) The definition of the new term "Invoice
Report" is inserted in the Definition Section of the Purchase Agreement, to read
as follows:
"'Invoice Report' has the meaning given to
it in the Reporting Agreement".
(f) The definition of the new term
"Pass-Through Receipts" is inserted in the Definition Section of the Purchase
Agreement, to read as follows:
"'Pass-Through Receipts' has the meaning
given to it in the Loan and Security Agreement.".
(g) The definition of the new term
"Reporting Agreement" is inserted in the Definition Section of the Purchase
Agreement, to read as follows:
"Reporting Agreement" means the letter
agreement dated as of July 31, 2003, among the Agent,
the Servicer, the Company and the Originators, as the
same may be amended, restated, supplemented or
otherwise modified from time to time.
(h) The definition of the new term
"Reporting Date" is inserted in the Definition Section of the Purchase
Agreement, to read as follows:
"Reporting Date" means any Business Day on
which a Purchase Report is required to be delivered
by the Servicer pursuant to Section 2.1."
(i) The definition of the new term
"Transaction Fee" is inserted in the Definition Section of the Purchase
Agreement, to read as follows:
"Transaction Fee" has the meaning given to
it in Section 1.6 hereof."
2.4. Background. Paragraph 1 of the Background
Section of the Purchase Agreement is amended in its entirety to read as follows:
"1. The Company is a limited liability
company, all of the outstanding interests of which
are owned by the Originators. Xxxxxx Xxxxxxx Inc. is
a wholly-owned subsidiary of Xxxxxx Xxxxxxx Ltd.
("FWL"). Each Originator is a wholly-owned subsidiary
of FWL."
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2.5. Transaction Fee. Article I of the Purchase
Agreement is amended by inserting the following new Section 1.6 at the end of
such Section, to read as follows:
"Section 1.6 Transaction Fee. On each
Payment Date falling on or after July 31, 2003, each
Originator shall pay to the Company, by wire transfer
in immediately available funds, a fee equal to 1% of
the Outstanding Balance of each Receivable purchased
from such Originator in respect of Eligible Accounts
by the Company on such Payment Date (the "Transaction
Fee").
2.6. Reporting. Section 2.1 of the Purchase Agreement
is amended in its entirety to read as follows:
"Section 2.1 Purchase Report. On the seventh
day following the Servicer's receipt of the weekly
Borrowing Base Report pursuant to the Reporting
Agreement (by the close of business on such day), or
if such seventh day is not a Business Day, on the
immediately following Business Day (by the close of
business on such day), the Servicer shall deliver to
the Company, the Agent and each Originator a report,
in substantially the form of Exhibit A (each such
report being herein called a "Purchase Report"), with
respect to the matters set forth therein and the
Company's purchases or contributions of Receivables
from each Originator that were made during the
preceding week, as applicable; provided, however, if
the Servicer shall have received an Invoice Report
pursuant to the Reporting Agreement, the Servicer
shall deliver such Purchase Report on the second
Business Day (by the close of business on such day)
following its receipt of the Invoice Report and the
Borrowing Base Report."
2.7. Subsequent Purchase Price Payments. Section
3.2(a)of the Purchase Agreement is amended by:
(i) deleting the words "equal to 85%" at the
end of the second line of clause (i) of such
subsection and substituting therefor the words "equal
to at least 85%, as determined by the Company,"; and
(ii) deleting the words "an amount equal to
15%" at the end of the second line of clause (ii) of
such subsection and substituting therefor the words
"an amount not to exceed 15%, as determined by the
Company,".
2.8. Settlement as to Specific Receivables.
(a) Section 3.3(a) of the Purchase Agreement
is amended by inserting the following new sentence at the end of such section:
"In addition, the Transaction Fee paid by such
Originator with respect to such Receivable shall be
refunded to such Originator in the manner provided
for in subsection (c) below."
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(b) Section 3.3(b) of the Purchase Agreement
is amended by inserting the following new sentence at the end of such section:
"In addition, a pro rata portion of the Transaction
Fee paid by such Originator with respect to such
Receivable shall be refunded to such Originator in
the manner provided for in subsection (d) below."
(c) Section 3.3(c) of the Purchase Agreement
is amended in its entirety to read as follows:
"(c) Any reduction in the Purchase Price of
any Eligible Account pursuant to subsection (a) above
shall be applied as a credit for the account of the
Company against the Purchase Price of Eligible
Accounts subsequently purchased by the Company from
such Originator hereunder, and any refund of the
Transaction Fee in connection therewith pursuant to
subsection (a) above shall be applied as a credit for
the account of such Originator against any
Transaction Fee subsequently required to be paid to
the Company by such Originator hereunder; provided,
however, if during the period from the date of such
reduction in Purchase Price to the next succeeding
Reporting Date, there have been no purchases of
Eligible Accounts from such Originator (or
insufficiently large purchases of Eligible Accounts)
to create a Purchase Price and Transaction Fee
sufficient to so apply such credit against, then:
(i) an amount equal to (x) the amount of
such credit, times (y) the Applicable Cash
Percentage, minus (z) the amount of the Transaction
Fee paid in connection with the purchase of such
Eligible Account, shall be paid in cash to the
Company by such Originator in the manner and for
application as described in the following proviso;
(ii) an amount equal to (x) the amount of
such credit, times (y) the Applicable Note Percentage
shall be deemed to be a payment under, and shall be
deducted from the principal amount outstanding under,
the Company Note payable to such Originator; and
(iii) the Contribution Amount of such
Receivable shall be deemed to be a capital
contribution from the Originator to the Company equal
to such Contribution Amount;
provided that the amount of any such credit shall be
paid by such Originator to the Company, on or prior
to such succeeding Reporting Date, by deposit in
immediately available funds into the relevant Cash
Management Account for application by Servicer to the
same extent as if Collections of the applicable
Receivable in such amount had actually been received
on such date."
(d) Section 3.3(d) of the Purchase Agreement
is amended in its entirety to read as follows:
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"(d) Any reduction in the Market Value or
Contribution Amount of any Receivable pursuant to
subsection (b) above shall be applied as a credit for
the account of the Company against the Market Value
or Contribution Amount, as applicable, of Receivables
subsequently purchased or contributed by the Company
from such Originator hereunder, as applicable, and
any refund of a portion of the Transaction Fee in
connection therewith pursuant to subsection (b) above
shall be applied as a credit (in an amount equal to
(x) the amount of the original Transaction Fee, times
(y) the Applicable Refund Percentage) for the account
of such Originator against any Transaction Fee
subsequently required to be paid to the Company by
such Originator hereunder; provided, however if
during the period from the date of such reduction in
Market Value or Contribution Amount, as the case may
be, to the next succeeding Reporting Date, there have
been no purchases or contributions of Receivables
from such Originator (or insufficiently large
purchases or contributions of Receivables) to create
a Market Value or Contribution Amount sufficient to
so apply such credit against, then:
(i) an amount equal to (A) (x) the amount of
such credit in Market Value, times (y) the Applicable
Cash Percentage, in the case of an Eligible Account,
minus (B) (x) the amount of the Transaction Fee paid
in connection with the purchase of such Eligible
Account, times (y) the Applicable Refund Percentage,
shall be paid in cash to the Company by such
Originator in the manner and for application as
described in the following proviso;
(ii) an amount equal to (x) the amount of
such credit in Market Value, times (y) the Applicable
Note Percentage, in the case of an Eligible Account,
shall be deemed to be a payment under, and shall be
deducted from the principal amount outstanding under,
the Company Note payable to such Originator; and
(iii) the reduction in the Contribution
Amount of such Receivable, in the case of an
Ineligible Account, shall be deemed to be a reduction
of the Originator's capital in the Company;
provided that the amount of any such credit shall be
paid by such Originator to the Company, on or prior
to such succeeding Reporting Date, by deposit in
immediately available funds into the relevant Cash
Management Account for application by Servicer to the
same extent as if Collections of the applicable
Receivable in such amount had actually been received
on such date."
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2.9. Collection Procedures. Section 7.2(a) of the
Purchase Agreement is amended by inserting two new sentences at the end of such
subsection, to read as follows:
"Notwithstanding the foregoing, no Pass-Through
Receipts shall be deposited in any Cash Management
Account. All Pass-Through Receipts shall be
identified as such and invoiced separately from any
other Receivables."
2.10. Purchase and Sale Termination Events. Section
8.1(e) of the Purchase Agreement is amended by deleting the words "three (3)
Business Days" in the second line of such Section and substituting therefor the
words "five (5) Business Days".
2.11. Additional Originators. Section 10.12 of the
Purchase Agreement is amended by inserting a new parenthetical at the end of
clause (ii) of such Section prior to the comma, to read as follows:
"(except that, with the written consent of the Agent,
which consent may be granted or withheld by the Agent
in its sole discretion, either or both of Xxxxxx
Xxxxxxx Limited Canada and Xxxxxx Xxxxxxx Fired
Heaters LTD., each of which is a wholly-owned
Subsidiary of the Parent organized under the laws of
Canada, may be added as an Originator hereunder,
provided, that such Canadian Subsidiary otherwise
qualifies as an Originator under the terms and
conditions of this Agreement, and provided further
that the Agent shall have received such agreements,
legal opinions and other documents as the Agent may
request in connection with the addition of such
Canadian Subsidiary as an Originator)".
2.12. Exhibits. Exhibit A to the Purchase Agreement
is hereby replaced with a new Exhibit A, in the form attached hereto as Annex I.
Exhibit B to the Purchase Agreement is hereby replaced with a new Exhibit B, in
the form attached hereto as Annex II. Exhibit C to the Purchase Agreement is
hereby replaced with a new Exhibit C, in the form attached hereto as Annex III.
3. Conditions. The effectiveness of this Amendment is subject
to the fulfillment, in a manner satisfactory to the Lenders, of each of the
following conditions precedent (the date such conditions are fulfilled or waived
by the Lenders is hereafter referred to as the "Amendment Effective Date"):
(a) The representations and warranties
contained herein and in Article V of the Purchase Agreement shall be correct on
and as of the Amendment Effective Date as though made on and as of such date,
except to the extent that such representations and warranties expressly relate
solely to an earlier date (in which case such representations and warranties
shall be true and correct on and as of such date).
(b) Each of the conditions precedent to the
effectiveness of the Loan Agreement Amendment shall have been satisfied or
waived by the Lenders and the Loan Agreement Amendment shall become effective
concurrently with the effectiveness of this Amendment.
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(c) The Agent and the Lenders shall have
executed this Amendment and received counterparts of this Amendment, which bear
the signatures of the Company, the Servicer and each Originator.
(d) The Agent shall have received a fully
executed Assignment and Assumption (Purchase Agreement), in form and substance
satisfactory to the Lenders.
(e) Each of the Originators shall have
delivered to the Original Company the Company Note held by such Originator and
marked "cancelled" and the Company shall have executed a new Company Note made
payable to each Originator.
(f) The Agent, the Company, the Servicer and
the Originators shall have entered into the Reporting Agreement referred to in
Section 2.3(g) of this Amendment.
(g) The Agent, the Company and the Servicer
shall have entered into a new Servicing Agreement, in form and substance
satisfactory to the Lenders.
(h) The Original Company, the Company, the
Originators and the Servicer shall have entered into the Receivables Transfer
Agreement, in form and substance satisfactory to the Lenders, and the Transfers
shall have been effected in accordance therewith (the documents described in
clauses (c), (d), (e), (f) and (g) above and this clause (h) are referred to
herein, individually as an "Amendment Document" and collectively, as the
"Amendment Documents").
(i) The Originators and the Company shall
have authorized the Agent to submit for filing UCC Financing Statements naming
the Originators as debtors, the Company as secured party, and the Agent as
assignee of the Company.
(j) All legal matters incident to this
Amendment shall be satisfactory to the Agent, the Lenders and their counsel.
(k) The Agent, the Lenders and their counsel
shall have received such other documents (including, but not limited to,
resolutions, officer's certificates and other corporate documents) as any such
Person may reasonably request.
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4. Transfer, Waiver and Consent. In order to effectuate the
transactions contemplated by the Assignment and Assumption (Purchase Agreement)
and this Amendment, on the date hereof, pursuant to the Receivables Transfer
Agreement: (i) the Original Company will (A) sell, transfer and assign to the
Originators all of the Pool Receivables and all Related Rights, and (B)
distribute to the Originators all cash on hand, (ii) the Originators will cancel
the Company Notes issued by the Original Company, (iii) the Originators will (A)
contribute all of the cash received from the Original Company to the Company,
and (B) sell or contribute all of the Pool Receivables and Related Rights
received from the Original Company to the Company in accordance with Section 3.2
of the Purchase Agreement, and (iv) the Company will issue the Company Notes to
the Originators (the "Transfers"). The Agent hereby consents to the Transfers
and waives any Purchase and Sale Termination Event which would otherwise occur
under Section 8.1(d) of the Purchase Agreement as a result of a breach of
Section 6.3(a) or 6.3(e) of the Purchase Agreement by reason of the Transfers.
5. Representations and Warranties. Each of the Company, the
Servicer and each Originator hereby represents and warrants to the Agent and the
Lenders as follows:
(a) The representations and warranties
herein, in Article V of the Purchase Agreement and in each other Amendment
Document or other Transaction Document and certificate or other writing
delivered to the Agent or any Lender pursuant hereto or thereto on or prior to
the Amendment Effective Date are correct on and as of the Amendment Effective
Date as though made on and as of such date, except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties are true and correct on and as of
such date).
(b) No Default or Event of Default has
occurred and is continuing or would result from this Amendment or any of the
other Amendment Documents becoming effective in accordance with its terms.
(c) Each of the Company, the Servicer and
each Originator (i) is duly organized and existing and in good standing under
the laws of the jurisdiction of its organization, (ii) has all requisite power
and authority to execute, deliver and perform this Amendment and each other
Amendment Document to which it is a party, and to perform the Purchase
Agreement, as amended hereby, and (iii) is duly qualified to do business in each
jurisdiction in which the character of the properties owned or leased by it or
in which the transaction of its business makes such qualification necessary,
except where the failure to be so qualified could not be expected to cause a
Material Adverse Effect.
(d) The execution, delivery and performance
by each of the Company, the Servicer and each Originator of this Amendment and
each other Amendment Document to which it is a party, and the performance by
each such Person of the Purchase Agreement, as amended by this Amendment, (i)
have been duly authorized by all necessary corporate action, and (ii) do not and
will not contravene such Person's Governing Documents.
(e) Except for the filing of the UCC
financing statements referred to in Section 3(i) hereof, the execution,
delivery, and performance by each of the Company, the Servicer and each
Originator of this Amendment and each other Amendment Document to which it is a
party, and the performance of the Purchase Agreement, as amended by this
Amendment, do not and will not require any registration with, consent, or
approval of, or notice to, or other action with or by, any Governmental
Authority or other Person.
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(f) This Amendment and each other Amendment
Document to which it is a party, when executed and delivered by each of the
Company, the Servicer and each Originator, and the Purchase Agreement, as
amended by this Amendment, will be the legally valid and binding obligations of
such Person, enforceable against such Person in accordance with their respective
terms, except as enforcement may be limited by equitable principles or by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally.
6. Miscellaneous.
(a) Continued Effectiveness of the Purchase
Agreement. Except as otherwise expressly provided herein, the Purchase Agreement
and the other Transaction Documents are, and shall continue to be, in full force
and effect and are hereby ratified and confirmed in all respects, except that on
and after the Amendment Effective Date (i) all references in the Purchase
Agreement to "this Agreement", "hereto", "hereof", "hereunder" or words of like
import referring to the Purchase Agreement shall mean the Purchase Agreement as
amended by this Amendment, and (ii) all references in the other Transaction
Documents to the "Purchase Agreement", "thereto", "thereof", "thereunder" or
words of like import referring to the Purchase Agreement shall mean the Purchase
Agreement as amended by this Amendment. Except as expressly provided herein, the
execution, delivery and effectiveness of this Amendment shall not operate as an
amendment of any right, power or remedy of the Agent or the Lenders under the
Purchase Agreement or any other Transaction Document, nor constitute an
amendment of any provision of the Purchase Agreement or any other Transaction
Document.
(b) Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which shall be deemed to be an original, but all
of which taken together shall constitute one and the same agreement.
(c) Headings. Section headings herein are
included for convenience of reference only and shall not constitute a part of
this Amendment for any other purpose.
(d) Governing Law. This Amendment shall be
governed by, and construed in accordance with, the law of the State of New York.
(e) Costs and Expenses. The Company agrees
to pay on demand all reasonable fees, costs and expenses of the Agent in
connection with the preparation, execution and delivery of this Amendment and
any other related agreements, instruments and documents.
(f) Amendment as Transaction Document. Each
of the Company, the Servicer and each Originator hereby acknowledges and agrees
that this Amendment constitutes a "Transaction Document" under the Loan and
Security Agreement. Accordingly, it shall be an Event of Default under the Loan
and Security Agreement if any representation or warranty made by any of the
Company, the Servicer or any Originator under or in connection with this
Amendment shall have been untrue, false or misleading in any material respect
when made.
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(g) No Waiver. Except as expressly set forth
herein, this Amendment is not a waiver of, or consent to, any Default or Event
of Default now existing or hereafter arising under any Transaction Document and
the Agent and the Lenders expressly reserve all of their rights and remedies
under the Loan and Security Agreement and the other Transaction Documents, under
applicable law or otherwise.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered as of the date first above written.
COMPANY:
XXXXXX XXXXXXX FUNDING II LLC
By: /s/Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Treasurer
ORIGINATORS:
XXXXXX XXXXXXX CONSTRUCTORS, INC.
By: /s/Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Treasurer
XXXXXX XXXXXXX ENERGY CORPORATION
By: /s/Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Treasurer
XXXXXX XXXXXXX USA CORPORATION
By: /s/Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Treasurer
XXXXXX XXXXXXX POWER GROUP, INC.
By: /s/Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Treasurer
XXXXXX XXXXXXX XXXX, INC.
By: /s/Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Treasurer
XXXXXX XXXXXXX ENERGY SERVICES, INC.
By: /s/Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Treasurer
SERVICER
XXXXXX XXXXXXX INC.
By: /s/Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Treasurer
Consented and Agreed to:
AGENT AND LENDER:
XXXXX FARGO FOOTHILL, INC.,
a California corporation, as Agent and a Lender
By: /s/Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
LENDER:
ABLECO FINANCE LLC,
a Delaware limited liability company, as a Lender
By: Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President
Annex I
Exhibit A
Form of Purchase Report
Annex II
Exhibit B
Form of Subordinated Note
Annex III
Exhibit C
Form of Originator Assignment Certificate
ACKNOWLEDGMENT AND CONSENT
The undersigned, as Guarantor under the Guaranty (as defined
in the Loan and Security Agreement referred to in Amendment No. 1 to Purchase,
Sale and Contribution Agreement dated as of the date hereof (the "Amendment"),
all terms defined therein being used herein as defined therein, to which this
Acknowledgment and Consent is attached), hereby (i) acknowledges and consents to
the Amendment and (ii) confirms and agrees that the Guaranty is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed in
all respects.
Dated: July 31, 2003
XXXXXX XXXXXXX LTD.,
a Bermuda limited company
By: /s/Xxxxx X. Xxxxxxxxx
-----------------------------------
Title: Vice President & Controller
