Exhibit 10.6
AMENDMENT NO. 4 TO CREDIT AGREEMENT
AMENDMENT NO. 4 dated as of October 30, 2003 (this "Amendment") 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 to permit Wachovia (as defined below)
to assign its rights under 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. Amendments to Credit Agreement. (a) The following
definitions are added to Section 1.01 of the Credit Agreement in the proper
alphabetical order:
"Wachovia" shall mean Wachovia Bank, National Association, and its
successors.
(b) Section 6.16(a) of the Credit Agreement is amended by inserting "or
Wachovia (provided that the Credit Parties shall have complied with Section 6(a)
of the Security Agreement with respect to any accounts maintained with
Wachovia)" after the parenthetical in the fourth line thereof.
Section 3. Representations of the Company. The Company represents and
warrants that (a) 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. 4 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), (b) no Event of
Default will have occurred and be continuing on such date and (c) (i) the
balance of each deposit account listed on Exhibit A to the Supplemental Account
Control Agreement dated as of August 16, 2003 among Wachovia, certain of the
Loan Parties and the Collateral Agent (other than account no. 1000499M (FX) and
those accounts referred to in clause (ii) below) has been, as of the close of
business on a Business Day after August 16, 2003, zero, (ii) the Dollar
Equivalent (determined by a Responsible Officer of the Company in good faith) of
(A) the aggregate amount of the balances of accounts no. 1000496M, 1000189M and
1000498M, all of which are denominated in a currency other than Dollars, shall
have been, as of any such time, no more than $75,000, and (B) the balance of
account no. 1000499M (FX), which is denominated in a currency other than
Dollars, shall have been, as of any such time, no more than $1,500,000.
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 Effective Date when the following conditions are met (the "Amendment No. 4
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) all legal matters relating to this Amendment shall be satisfactory
to the Administrative Agent and its counsel; and
(c) 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 & Xxxxx
Corporate Finance LLC) for which invoices have theretofore been rendered.
2
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/Xxxx Xxxxx Xxxxxxx By: /s/ Xxxx X. Xxxx
------------------------------------- --------------------------------------
Name: Xxxx Xxxxx Xxxxxxx Name: Xxxx X. Xxxx
Title: Vice President & Secretary of Title: Treasurer
Xxxxxx Xxxxxxx Inc.
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.
FWPI LTD.
By: /s/ Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: Treasurer
FW EUROPEAN E & C LTD.
CONTINENTAL FINANCE COMPANY LTD.
FINANCIAL SERVICES S.A.R.L.
XXXXXX XXXXXXX TRADING COMPANY, LTD.
PERRYVILLE SERVICE COMPANY LTD.
FW HUNGARY LICENSING LIMITED LIABILITY COMPANY
FW OVERSEAS OPERATIONS LIMITED
FW MANAGEMENT OPERATIONS, LTD.
MANOPS LIMITED
XXXXXX XXXXXXX PETROLEUM SERVICES S.A.E.
FW ENERGIE B.V.
XXXXXX XXXXXXX EUROPE LIMITED
F.W.-GESTAO E SERVICOS, X.X.
XXXXXX XXXXXXX CANADIAN RESOURCES, LTD.
LA SOCIETE D'ENERGIE XXXXXX XXXXXXX LTEE.
XXXXXXXXX PROCESS SYSTEMS GmbH
HFM TRAY CANADA LTD.
XXXXXX XXXXXXX INGENIEROS Y CONSTRUCTORES,
S.A. de X.X.
XXXXXX XXXXXXX AMERICA LATINA, LTDA.
P.E. CONSULTANTS, INC.
XXXXXX XXXXXXX CARIBE CORPORATION, C.A.
XXXXXX XXXXXXX AUSTRALIA PROPRIETARY LIMITED
XXXXXX XXXXXXX CONTINENTAL B.V.
XXXXXX XXXXXXX EUROPE B.V.
XXXXXX XXXXXXX VIETNAM PRIVATE LTD.
XXXXXX XXXXXXX ANDINA X.X.
XXXXXX XXXXXXX (THAILAND) LIMITED
By: /s/ Xxxx X. Xxxx
---------------------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
XXXXXX XXXXXXX (MALAYSIA) Sdn. Bhd.
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Authorized Signatory
XXXXXX XXXXXXX CONSTRUCTORES de MEXICO
S. de X.X. de C.V.
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx
Title: General Manager
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/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
THE ROYAL BANK OF SCOTLAND
PLC
By:
----------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
----------------------------------------
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By:
----------------------------------------
Name:
Title:
MARINER LDC
By:
----------------------------------------
Name:
Title:
DEUTSCHE BANK AG NEW YORK
BRANCH AND/OR CAYMAN
ISLANDS BRANCH
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
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:
----------------------------------------
Name:
Title:
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/ Xxxxxx X. Xxxxxxxx, CFA
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx, CFA
Title: Managing Director
LIBERTYVIEW FUND LLC
By:
----------------------------------------
Name:
Title:
ORIX FINANCE CORP I
By:
----------------------------------------
Name:
Title:
DIVERSIFIED INDUSTRIES LLC
By:
----------------------------------------
Name:
Title:
QUADRANGLE MASTER FUND
By: /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Managing Principal
