[CONFORMED COPY]
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of June 30, 2002 (this "AMENDMENT") to
AMENDMENT No. 1 and WAIVER dated as of January 28, 2002 (as the same has
heretofore been or may hereafter be amended from time to time, the "FIRST
AMENDMENT AND WAIVER") relating to the Second Amended and Restated Revolving
Credit Agreement dated as of May 25, 2001 (as the same has heretofore been or
may hereafter be amended from time to time, the "CREDIT AGREEMENT") among XXXXXX
XXXXXXX LLC, XXXXXX XXXXXXX USA CORPORATION, XXXXXX XXXXXXX POWER GROUP, INC.
(formerly known as XXXXXX XXXXXXX ENERGY INTERNATIONAL, INC.), XXXXXX XXXXXXX
ENERGY CORPORATION, the Guarantors signatory thereto, the Lenders signatory
thereto, BANK OF AMERICA, N.A., as Administrative Agent, WACHOVIA BANK, NATIONAL
ASSOCIATION (formerly known as FIRST UNION NATIONAL BANK), as Syndication Agent,
and ABN AMRO BANK N.V., as Documentation Agent, arranged by BANC OF AMERICA
SECURITIES LLC, as Lead Arranger and Book Manager, and ABN AMRO BANK N.V.,
WACHOVIA SECURITIES, INC. (FORMERLY KNOWN AS FIRST UNION CAPITAL MARKETS),
GREENWICH NATWEST STRUCTURED FINANCE INC. and TORONTO DOMINION BANK, as
Arrangers.
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 FIRST AMENDMENT AND WAIVER. (a) Clause (i)
of the definition of "WAIVER PERIOD" in Section 1(b) of the First Amendment and
Waiver is amended by changing "June 30, 2002" to "July 31, 2002".
(b) Clause (i) of the second sentence of Section 2(g) of the First
Amendment and Waiver is amended by changing "June 30, 2002" to "July 31, 2002".
SECTION 3. REPRESENTATIONS OF THE COMPANY. The Company represents and
warrants that (i) subject in the case of Section 3.08 to matters disclosed in
writing to the Lenders prior to the effective date of the First Amendment and
Waiver and the $30,000,000 shortfall in Consolidated Adjusted EBITDAR disclosed
to the Lenders at the bank meeting held on April 4, 2002 and an additional
$26,000,000 shortfall in Consolidated Adjusted EBITDAR, the representations and
warranties of the Company set forth in Article 3 of the Credit Agreement will be
true on and as of the Amendment Effective Date and (ii) no Event of Default or
Potential Default will have occurred and be continuing on such date, in each
case after giving effect to this Amendment.
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. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective on the date when the following conditions are met (the "AMENDMENT
EFFECTIVE DATE"):
(a) the Administrative Agent shall have received from each
of the Borrowers and the Guarantors and Lenders comprising 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; and
(b) the Administrative Agent shall have received evidence
satisfactory to it of the payment by the Company of all fees and
expenses owed by it pursuant to the Credit Agreement or any written
agreement in connection with the First Amendment and Waiver
(including without limitation the fees and expenses of Xxxxx Xxxx &
Xxxxxxxx, Xxxxx & Young Corporate Finance LLC and Xxxxxxxx
Consulting) 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, as a Borrower
By: Foreign Holdings Ltd.,
its sole member
By /S/ XXXX XXXXX-XXXXXXX By /S/ XXXXXX X. XXXXXX
------------------------------ ------------------------------------
Title: Corporate Secretary Title: Vice President & Treasurer
XXXXXX XXXXXXX USA CORPORATION,
as a Borrower
By /S/ XXXXXX X. XXXXXXXX
-------------------------------------
Title: Treasurer
XXXXXX XXXXXXX POWER GROUP, INC.
(formerly known as XXXXXX XXXXXXX
ENERGY INTERNATIONAL, INC.),
as a Borrower
By /S/ XXXXXX X. XXXXXX
-------------------------------------
Title: Vice President & Treasurer
XXXXXX XXXXXXX ENERGY CORPORATION,
as a Borrower
By /S/ XXXXXX X. XXXXXXXX
-------------------------------------
Title: Treasurer
XXXXXX XXXXXXX INC.
(formerly known as XXXXXX XXXXXXX
US HOLDINGS, INC.), as a Guarantor
By /S/ XXXXXX X. XXXXXX
-------------------------------------
Title: Vice President & Treasurer
XXXXXX XXXXXXX INTERNATIONAL HOLDINGS,
INC., as a Guarantor
By /S/ XXXXXX X. XXXXXX
-------------------------------------
Title: Vice President & Treasurer
FOREIGN HOLDINGS LTD., as a Guarantor
By /S/ XXXXXX X. XXXXXX
-------------------------------------
Title: Treasurer
XXXXXX XXXXXXX LTD., as a Guarantor
By /S/ XXXXXX X. XXXXXX
-------------------------------------
Title: Vice President & Treasurer
BANK OF AMERICA, N.A., individually
and as Administrative Agent, LC
Issuer and Swingline Lender
By /S/ X. X. XXXXX
-------------------------------------
Title: Managing Director
WACHOVIA BANK, NATIONAL ASSOCIATION,
individually and as Syndication
Agent
By /S/ XXXXXXXXXXX XXXXXXX
-------------------------------------
Title: Senior Vice President
ABN AMRO BANK N.V., individually and as
Documentation Agent
By /S/ XXXXXX X. XXXXXXXX
-------------------------------------
Title: Group Senior Vice President
By /S/ XXXXXX X. XXXXXXX
-------------------------------------
Title: Group Vice President
TORONTO DOMINION (TEXAS), INC.
By /S/ XXX X. XXXXXX
-------------------------------------
Title: Vice President
NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
By
-------------------------------------
Title:
NATIONAL WESTMINSTER BANK PLC,
NASSAU BRANCH
By
-------------------------------------
Title:
THE BANK OF NOVA SCOTIA
By /S/ XXXX X. XXXXXX
-------------------------------------
Title: Managing Director
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By /S/ XXXXXXXX XXXXXXX
-------------------------------------
Title: GMI Debt Markets Counsel
SALOMON BROTHERS HOLDING COMPANY INC.
By /S/ XXXXX XXXXXX
-------------------------------------
Title: Assistant Vice President
DEUTSCHE BANK AG NEW YORK BRANCH and/or
CAYMAN ISLANDS BRANCH
By
-------------------------------------
Title:
By
-------------------------------------
Title:
BNP PARIBAS (successor by merger to
Paribas)
By /S/ XXXXX XXX
-------------------------------------
Title: Vice President
By /S/ XXXX XXXXXXXX
-------------------------------------
Title: Managing Director
PNC BANK, NATIONAL ASSOCIATION
By /S/ XXXXXX X. XXXXXX
-------------------------------------
Title: Vice President
SOCIETE GENERALE, NEW YORK BRANCH
By /S/ XXXXXX XXXXXXX
-------------------------------------
Title: Managing Director,
Head of Project and Sectorial
Finance, Americas
WELLINGTON PARTNERS LIMITED PARTNERSHIP
By: Citadel Limited Partnership, its
Portfolio Manager
By: GLB Partners, L.P., its General
Partner
By: Citadel Investment Group, L.L.C.,
its General Partner
By
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Title:
LIBERTYVIEW FUND LLC
By
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Title:
