EXHIBIT 10.4
[EXECUTION COPY]
AMENDMENT NO. 1 TO SECURITY AGREEMENT
AMENDMENT NO. 1 dated as of August 26, 2003 (this "Amendment") to the
Security Agreement dated as of August 16, 2002 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "Security
Agreement") made by the Grantors from time to time party thereto in favor of the
Bank of America, N.A., as Collateral Agent (together with any successor
collateral agent appointed pursuant to Article VIII of the Credit Agreement
referred to below, the "Collateral Agent") for the Secured Parties.
W I T N E S S E T H :
WHEREAS, the parties hereto have entered into Amendment No. 3 dated as
of July 14, 2003 ("Amendment No. 3") to the Third Amended and Restated Term Loan
and Revolving Credit Agreement dated as of August 2, 2002 (as amended, amended
and restated, supplemented or otherwise modified from time to time, the "Credit
Agreement") among Xxxxxx Xxxxxxx LLC, certain of its affiliates, the Lenders
party thereto and Bank of America, N.A., as Administrative Agent and Collateral
Agent (together with any successor collateral agent appointed pursuant to
Article VIII of the Credit Agreement, the "Collateral Agent");
WHEREAS, Amendment No. 3 requires certain of the Grantors to pledge
additional Equity Interests in certain of their subsidiaries;
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 Security Agreement
has the meaning assigned to such term in the Security 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 Security Agreement shall, after the Amendment No. 1 Effective
Date, refer to the Security Agreement as amended hereby.
SECTION 2. Amendments to Security Agreement. (a) Section 2(b) of the
Security Agreement is amended by replacing each reference to "Foreign
Subsidiary" in clause (ii) thereof with "Exempt Foreign Subsidiary".
(b) Section 3(a) of the Security Agreement is amended by:
(i) inserting the following proviso at the end of clause (i)
thereof:
provided that any Restricted Collateral in which a security interest is
initially granted hereunder after the Amendment No. 3 Effective Date
shall secure only the Obligations of the undersigned in respect of Term
Loans in an aggregate principal amount of $57,581,000 (including
without limitation interest (including Post-Petition Interest) thereon
and fees and other Obligations in respect thereof) and Letter of Credit
Obligations,
(ii) inserting "in which a security interest is initially
granted hereunder prior to the Amendment No. 3 Effective Date" after
"such Grantor" in clause (iv) thereof.
(c) Section 5(a) of the Security Agreement is amended by replacing the
parenthetical in the second sentence with "(and, in the case of the Pledged
Equity in any Foreign Subsidiary, subject to any approvals required under the
laws of the jurisdiction of organization of such Foreign Subsidiary)".
(d) Clause (iii) of Section 5(e) of the Security Agreement is amended
by:
(i) inserting "or the deadlines established under Section
5.15(b) or 6.17 of the Credit Agreement, as the case may be)" after
"Effective Date";
(ii) replacing the reference to "clause (ii)" with "clause
(iii)"; and
(iii) inserting "(other than any such actions required in
connection with the pledges described on Schedule VIII hereof which
shall be taken by the deadlines established under Section 5.15(b) or
6.17, as the case may be, of the Credit Agreement)" at the end thereof.
(e) Section 9 of the Security Agreement is amended by inserting "As of
the date hereof," at the beginning of each of (i) each sentence in subsection
(a), (ii) the first sentence in subsection (e) and (iii) subsection (i)(iii).
(f) Section 9(g) of the Security Agreement is amended by inserting
"(other than any such actions required in connection with the pledges described
on Schedule VIII hereof which shall be taken by the deadlines established under
Section 5.15(b) or 6.17, as the case may be, of the Credit Agreement)" at the
end of each of clauses (i)(z), (ii)(w) and (ii)(y) thereof.
(g) Section 20(c) of the Security Agreement is amended by inserting the
following proviso at the end thereof:
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; and provided further that the foregoing provisions as to the
application of proceeds of Restricted Collateral are subject to the
limitations specified in Section 3(a).
(h) Schedule VIII hereto is added to the Security Agreement as Schedule
VIII thereto.
SECTION 3. Representations and Warranties. Each Grantor represents and
warrants that (i) the representations and warranties of such Grantor set forth
in the Security Agreement will be true on and as of the Amendment No. 1
Effective Date (except with respect to representations and warranties which
specifically refer to an earlier date, which shall be true as of such earlier
date) and (ii) no Potential Default or Event of Default will have occurred and
be continuing on the Amendment No. 1 Effective Date.
SECTION 4. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 5. 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 6. Effectiveness. This Amendment shall become effective as of
the date hereof on the date (the "Amendment No. 1 Effective Date") when the
Administrative Agent shall have received from each Grantor a counterpart hereof
signed by such party or facsimile or other written confirmation (in form
satisfactory to counsel to the Administrative Agent) that such party has signed
a counterpart hereof.
SECTION 7. Inconsistency with Foreign Pledge Agreements. In the event
that a Potential Default or Event of Default arises by virtue of a
misrepresentation or breach of warranty in, or a failure to perform any
undertaking imposed by, any Security Document governed by foreign law and
covering Collateral consisting exclusively of Equity Interests in, Indebtedness
owed by or assets owned by one or more Foreign Subsidiaries (a "Foreign Pledge
Agreement"), which Potential Default or Event of Default would not exist if the
related Collateral and the grant of a Lien therein were governed exclusively by
this Security Agreement, then the Potential Default or Event of Default existing
under such Foreign Pledge Agreement shall be deemed a Potential Default or Event
of Default, as the case may be, solely for purposes of such Foreign Pledge
Agreement and not for purposes of any other Loan Document.
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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/Xxxxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxx
------------------------------ -----------------------------------
Name: Xxxxxx X. Xxxxxxxxx Name: Xxxx X. Xxxx
Title: Vice President & Title: Treasurer
Deputy General Counsel
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/ Xxxxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
Schedule VIII to the
Security Agreement
LOCAL LAW PLEDGE AGREEMENTS
Pledge agreements under Bermuda law relating to pledges of:
1. Equity Interests in FWPI Ltd.
2. Equity Interests in FW European E&C Ltd.
3. Equity Interests in Continental Finance Company Ltd.
Pledge agreements under English law relating to pledges of:
1. Equity Interests in Xxxxxx Xxxxxxx Europe Limited.
2. Equity Interests in Xxxxxx Xxxxxxx Limited.
Pledge agreements under Dutch law relating to pledges of:
1. Equity Interests in FW Netherlands C.V.
2. Equity Interests in FW Energie B.V.
Pledge agreement under Italian law relating to pledge of Equity Interests in
Xxxxxx Xxxxxxx Continental Europe S.r.l.
Pledge agreement under Spanish law relating to pledge of Equity Interests in
Xxxxxx Xxxxxxx Iberia S.A.
Pledge agreement under Luxembourg law relating to pledges of Equity Interests in
Financial Services S.a.r.l.
Pledge agreement under Hungarian law relating to pledge of Equity Interests in
FW Hungary Licensing LLC.
