EXHIBIT 10.15
AMENDMENT NO. 2 TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDMENT NO. 2 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
(this "Agreement"), dated as of October 17, 2003, is entered into by and among
THE XXXX GROUP INC., a Louisiana corporation (the "Borrower"), the Subsidiaries
of the Borrower listed on the signature pages hereto as Guarantors (together
with each other Person who subsequently becomes a Guarantor, collectively, the
"Guarantors"), the banks and other financial institutions listed on the
signature pages hereto under the caption "Lenders" (together with each other
Person who becomes a Lender, collectively, the "Lenders"), and CREDIT LYONNAIS
NEW YORK BRANCH, individually as a Lender and as administrative agent for the
other Lenders (in such capacity together with any other Person who becomes the
agent, the "Agent").
INTRODUCTION
WHEREAS, the Borrower, the Guarantors, the Agent and the Lenders are
parties to that certain Third Amended and Restated Credit Agreement dated as of
March 17, 2003, as amended by Amendment No. 1 to Third Amended and Restated
Credit Agreement dated as of May 16, 2003 ("Credit Agreement"); and
WHEREAS, the Borrower has requested that the Agent and the Lenders
amend certain provisions of the Credit Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
AGREEMENT
SECTION 1.1. DEFINITIONS. ALL CAPITALIZED TERMS USED HEREIN AND NOT OTHERWISE
DEFINED SHALL HAVE THE MEANINGS GIVEN SUCH TERMS IN THE CREDIT AGREEMENT.
SECTION 1.2. AMENDMENTS TO ARTICLE I. ARTICLE I OF THE CREDIT AGREEMENT IS
HEREBY AMENDED AS FOLLOWS:
(a) THE DEFINITION OF "SUFFICIENT LIQUIDITY" IS HEREBY AMENDED IN ITS
ENTIRETY AS FOLLOWS:
"SUFFICIENT LIQUIDITY" MEANS THAT AT ANY TIME (i) DURING THE PERIOD
FROM THE EFFECTIVE DATE UNTIL THE SECOND AMENDMENT EFFECTIVE DATE, (A) THE
AMOUNT OF CONSOLIDATED TOTAL NET CASH AT SUCH TIME IS EQUAL TO OR GREATER THAN
$100,000,000 AND (B) THE AGGREGATE AMOUNT OF THE REMAINING UNUSED PORTION OF THE
LESSER OF (1) THE AGGREGATE REVOLVING CREDIT COMMITMENT OR (2) THE BORROWING
BASE AT SUCH TIME IS EQUAL TO OR GREATER THAN $50,000,000; AND (II) AFTER THE
SECOND AMENDMENT EFFECTIVE DATE (A) THE AMOUNT OF CONSOLIDATED TOTAL NET CASH AT
SUCH TIME IS EQUAL TO OR GREATER THAN $75,000,000 AND (B) THE AGGREGATE AMOUNT
OF THE REMAINING UNUSED PORTION OF THE LESSER OF (1) THE AGGREGATE REVOLVING
CREDIT COMMITMENT OR (2) THE BORROWING BASE AT SUCH TIME IS EQUAL TO OR GREATER
THAN $50,000,000.
(b) The following definition is hereby inserted in the appropriate
alphabetical order:
"Second Amendment Effective Date" shall mean the "Amendment Effective
Date", as such term is defined in Section 2.1 of Amendment No. 2 to Third
Amended and Restated Credit Agreement dated as of October 17, 2003, to this
Agreement.
SECTION 1.3. AMENDMENT TO SECTION 2.1.1(c). SECTION 2.1.1(c) IS HEREBY DELETED
IN ITS ENTIRETY.
SECTION 1.4. AMENDMENT TO SECTION 6.22.1. SECTION 6.22.1 IS HEREBY AMENDED BY
REPLACING "2.75" WITH "3.00".
SECTION 1.5. AMENDMENT TO SECTION 6.22.5. SECTION 6.22.5 IS HEREBY AMENDED IN
ITS ENTIRETY AS FOLLOWS:
6.22.5. MINIMUM EBITDA. AS OF THE END OF EACH FISCAL QUARTER
OF THE BORROWER, BEGINNING WITH THE FISCAL QUARTER ENDING MAY 31, 2003,
THE
BORROWER WILL NOT PERMIT EBITDA FOR THE BORROWER AND ITS SUBSIDIARIES
FOR THE CALCULATION PERIOD TO BE LESS THAN (a) UNTIL THE FISCAL QUARTER
ENDING NOVEMBER 30, 2004, $120,000,000 AND (b) THEREAFTER,
$135,000,000.
ARTICLE II
EFFECTIVENESS
SECTION 2.1. EFFECTIVENESS. THIS AGREEMENT SHALL BECOME EFFECTIVE AS OF THE DATE
FIRST WRITTEN ABOVE ON THE DATE (THE "AMENDMENT EFFECTIVE DATE") ON WHICH:
(a) THE AGENT SHALL HAVE RECEIVED COUNTERPARTS OF THIS AGREEMENT THAT,
WHEN TAKEN TOGETHER, BEAR THE SIGNATURES OF THE BORROWER, THE GUARANTORS AND THE
REQUIRED LENDERS;
(b) THE BORROWER SHALL HAVE CONSUMMATED AN EQUITY ISSUANCE OF AT LEAST
$200,000,000 AND THE EQUITY ISSUANCE PROCEEDS THEREOF SHALL BE USED TO REDEEM
THE XXXXX; PROVIDED, HOWEVER THAT IF THE BORROWER IS UNABLE TO REDEEM THE XXXXX
ON THE DATE OF SUCH EQUITY ISSUANCE, SUCH EQUITY ISSUANCE PROCEEDS SHALL BE HELD
AS RESTRICTED CASH FOR THE PURPOSES OF REDEEMING THE XXXXX UNTIL MAY 31, 2004;
AND
(c) THE BORROWER SHALL HAVE PAID TO THE ADMINISTRATIVE AGENT FOR THE
BENEFIT OF EACH LENDER THAT EXECUTES AND DELIVERS A COPY OF THIS AGREEMENT TO
THE ADMINISTRATIVE AGENT (OR ITS COUNSEL) BY 5:00 P.M., NEW YORK CITY TIME, ON
OCTOBER 17, 2003 (THE "RETURN DATE"), AN AMENDMENT FEE (THE "AMENDMENT FEES") IN
AN AMOUNT EQUAL TO 0.25% OF SUCH LENDER'S REVOLVING CREDIT COMMITMENT (WHETHER
USED OR UNUSED) AS OF THE RETURN DATE.
Section 2.2. Other Agreements.
(a) The Amendment Fees shall be payable in immediately available
Dollars on the Amendment Effective Date. Once paid, the Amendment Fees shall not
be refundable.
(b) Each of the Borrower, the Guarantors and the Lenders acknowledge
that as of the Amendment Effective Date there are no Revolving Credit Loans or
Swing Line Loans outstanding and therefore, the Equity Issuance Proceeds will
not be used to prepay outstanding Loans as required by the terms of Section
2.2(d).
ARTICLE III
MISCELLANEOUS; RATIFICATION
SECTION 3.1. REPRESENTATIONS TRUE; NO DEFAULT.
(a) THE BORROWER AND THE GUARANTORS REPRESENT AND WARRANT THAT THIS
AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED ON THEIR BEHALF AND
THE CREDIT AGREEMENT AS AMENDED HEREBY, TOGETHER WITH EACH OTHER LOAN DOCUMENTS
TO WHICH THE BORROWER AND EACH OF THE GUARANTORS IS A PARTY, CONSTITUTE VALID
AND LEGALLY BINDING AGREEMENTS OF THE BORROWER AND THE GUARANTORS, ENFORCEABLE
IN ACCORDANCE WITH THEIR TERMS, EXCEPT AS ENFORCEABILITY THEREOF MAY BE LIMITED
BY BANKRUPTCY, INSOLVENCY, FRAUDULENT CONVEYANCE, FRAUDULENT TRANSFER,
REORGANIZATION OR MORATORIUM OR OTHER SIMILAR LAW RELATING TO CREDITORS' RIGHTS
AND BY GENERAL EQUITABLE PRINCIPLES WHICH MAY LIMIT THE RIGHT TO OBTAIN
EQUITABLE REMEDIES (REGARDLESS OF WHETHER SUCH ENFORCEABILITY IS CONSIDERED IN A
PROCEEDING, IN EQUITY OR AT LAW);
(b) THE BORROWER REPRESENTS AND WARRANTS THAT THE REPRESENTATIONS AND
WARRANTIES OF THE BORROWER CONTAINED IN ARTICLE V OF THE CREDIT AGREEMENT ARE
TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE DATE HEREOF AS THOUGH
MADE ON AND AS OF THE DATE HEREOF, EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND
WARRANTIES RELATE SOLELY TO AN EARLIER DATE;
(c) THE GUARANTORS REPRESENT AND WARRANT THAT THE REPRESENTATIONS AND
WARRANTIES OF THE GUARANTORS CONTAINED IN THE GUARANTY ARE TRUE AND CORRECT IN
ALL MATERIAL RESPECTS ON AND AS OF THE DATE HEREOF AS THOUGH MADE ON AND AS OF
THE DATE HEREOF, EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND WARRANTIES RELATE
SOLELY TO AN EARLIER DATE; AND
(d) THE BORROWER AND THE GUARANTORS REPRESENT AND WARRANT THAT AFTER
GIVING EFFECT TO THIS AGREEMENT, THERE HAS NOT OCCURRED AND IS NOT CONTINUING A
DEFAULT OR AN EVENT THAT WITH THE PASSAGE OF TIME WOULD CONSTITUTE A DEFAULT.
SECTION 3.2. RATIFICATION AND EXTENSION OF LIENS. THE CREDIT AGREEMENT, THE
NOTES AND ALL OTHER LOAN DOCUMENTS EXECUTED IN CONNECTION THEREWITH TO WHICH THE
BORROWER OR ANY GUARANTOR IS A PARTY SHALL REMAIN IN FULL FORCE AND EFFECT, AND
ALL RIGHTS AND POWERS CREATED THEREBY OR THEREUNDER AND UNDER THE OTHER LOAN
DOCUMENTS TO WHICH THE BORROWER OR ANY GUARANTOR IS A PARTY ARE IN ALL RESPECTS
RATIFIED AND CONFIRMED. ALL LIENS CREATED BY ANY LOAN DOCUMENT ARE HEREBY
REGRANTED BY THE BORROWER AND THE GUARANTORS TO THE LENDERS AS SECURITY FOR THE
OBLIGATIONS. THE BORROWER AND THE GUARANTORS AGREE THAT THE
OBLIGATIONS OF THE BORROWER AND THE GUARANTORS UNDER THE CREDIT AGREEMENT, THE
NOTES AND THE OTHER LOAN DOCUMENTS TO WHICH THE BORROWER OR ANY GUARANTOR IS A
PARTY ARE HEREBY REAFFIRMED, RENEWED AND EXTENDED.
SECTION 3.3. ADDITIONAL INFORMATION. THE BORROWER AND THE GUARANTORS SHALL
FURNISH TO THE AGENT ALL SUCH OTHER DOCUMENTS, CONSENTS AND INFORMATION RELATING
TO THE BORROWER AND THE GUARANTORS AS THE AGENT MAY REASONABLY REQUIRE TO
ACCOMPLISH THE PURPOSES HEREOF.
SECTION 3.4. MISCELLANEOUS PROVISIONS.
(a) FROM AND AFTER THE EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
CREDIT AGREEMENT SHALL BE DEEMED TO BE AMENDED AND MODIFIED AS HEREIN PROVIDED,
BUT, EXCEPT AS SO AMENDED AND MODIFIED, THE CREDIT AGREEMENT AND ALL OTHER LOAN
DOCUMENTS SHALL CONTINUE IN FULL FORCE AND EFFECT.
(b) THE CREDIT AGREEMENT AND THIS AGREEMENT SHALL BE READ AND CONSTRUED
AS ONE AND THE SAME INSTRUMENT.
(c) ANY REFERENCE IN ANY LOAN DOCUMENT TO THE CREDIT AGREEMENT SHALL BE
A REFERENCE TO THE CREDIT AGREEMENT, AS AMENDED BY THIS AGREEMENT.
(d) THIS AGREEMENT MAY BE SIGNED IN ANY NUMBER OF COUNTERPARTS AND BY
DIFFERENT PARTIES IN SEPARATE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN
ORIGINAL BUT ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
(e) THE HEADINGS HEREIN SHALL BE ACCORDED NO SIGNIFICANCE IN
INTERPRETING THIS AGREEMENT.
(f) EACH GUARANTOR HEREBY ACKNOWLEDGES THAT ITS EXECUTION AND DELIVERY
OF THIS AGREEMENT DOES NOT INDICATE OR ESTABLISH AN APPROVAL OR CONSENT
REQUIREMENT BY THE GUARANTORS UNDER THE GUARANTY IN CONNECTION WITH THE
EXECUTION AND DELIVERY OF AMENDMENTS TO THE CREDIT AGREEMENT, THE NOTES OR ANY
OF THE OTHER LOAN DOCUMENTS (OTHER THAN THE GUARANTY).
SECTION 3.5 BINDING EFFECT. ONCE EXECUTED BY THE BORROWER, THE GUARANTORS AND
THE REQUIRED LENDERS, THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE
BENEFIT OF THE BORROWER, THE GUARANTORS, LENDERS, AGENTS AND THE SUCCESSORS AND
ASSIGNS OF THE AGENTS AND LENDERS. THE BORROWER AND THE GUARANTORS SHALL NOT
HAVE THE RIGHT TO ASSIGN ITS RIGHTS HEREUNDER OR ANY INTEREST HEREIN.
SECTION 3.6. CHOICE OF LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE
STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS. WITHOUT LIMITATION OF THE FOREGOING, NOTHING IN THIS AGREEMENT, OR IN THE
NOTES OR IN ANY OTHER LOAN DOCUMENT SHALL BE DEEMED TO CONSTITUTE A WAIVER OF
ANY RIGHTS WHICH ANY LENDER MAY HAVE UNDER APPLICABLE FEDERAL LEGISLATION
RELATING TO THE AMOUNT OF INTEREST WHICH SUCH LENDER MAY CONTRACT FOR, TAKE,
RECEIVE OR CHARGE IN RESPECT OF THE LOAN AND THE LOAN DOCUMENTS, INCLUDING ANY
RIGHT TO TAKE, RECEIVE, RESERVE AND CHARGE INTEREST AT THE RATE ALLOWED BY THE
LAW OF THE STATE WHERE ANY LENDER IS LOCATED.
[SIGNATURE PAGES FOLLOW.]
IN WITNESS WHEREOF, the Borrower, the Guarantors, the Lenders and the
Agent have executed this Agreement as of the date first above written.
THE XXXX GROUP INC.
By: /s/ XXXXXX X. XXXX
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Vice President and
Chief Financial Officer
GUARANTORS:
Whippany Venture I, L.L.C.
By: /s/ Conformed Signature
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
Xxxx Constructors, Inc.
By: /s/ Conformed Signature
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
Stone & Xxxxxxx Michigan, Inc.
By: /s/ XXXX X. XXXXXXX
-----------------------------------------
Xxxx X. Xxxxxxx
Secretary
So-Xxxx Gas Co., LLC
by its sole member,
EMCON/OWT, Inc.
By: /s/ XXXXXX X. XXXX
-----------------------------------------
Xxxxxx X. Xxxx
Executive Vice President, Assistant
Treasurer and Assistant Chief Financial
Officer
EMCON/OWT, Inc.
By: /s/ XXXXXX X. XXXX
-----------------------------------------
Xxxxxx X. Xxxx
Executive Vice President, Assistant
Treasurer and Assistant Chief Financial
Officer
GUARANTORS (continued):
American Plastic Pipe and
Supply, L.L.C.
LFG Specialties, L.L.C.
Xxxx Environmental &
Infrastructure, Inc.
Xxxx Facilities, Inc.
Xxxx Infrastructure, Inc.
Xxxx Property Holdings, Inc.
Stone & Xxxxxxx - IT Russia
Management Consultants, Inc.
By: /s/ XXXXXX X. XXXX
-----------------------------------------
Xxxxxx X. Xxxx
Executive Vice President and Treasurer
Stone & Xxxxxxx - JSC Management
Consultants, Inc.
By: /s/ XXXXXX X. XXXX
-----------------------------------------
Xxxxxx X. Xxxx
Senior Vice President and Treasurer
Xxxx Beneco, Inc.
Xxxx E & I Investment Holdings, Inc.
By: /s/ XXXXXX X. XXXX
-----------------------------------------
Xxxxxx X. Xxxx
Executive Vice President
Power Technologies, Inc.
By: /s/ XXXXXX X. XXXX
-----------------------------------------
Xxxxxx X. Xxxx
Vice President and Assistant Treasurer
GUARANTORS (continued):
X.X. Xxxx, Inc.
C.B.P. Engineering Corp.
Field Services, Inc.
Prospect Industries (Holdings) Inc.
Xxxx A/DE, Inc.
Xxxx Alloy Piping Products, Inc.
Xxxx Capital, Inc.
Xxxx Connex, Inc.
Xxxx Environmental, Inc.
Xxxx Fabricators, Inc.
Xxxx FCI, Inc.
Xxxx FVF, Inc.
Xxxx Global Energy Services, Inc.
Xxxx GRP of California
Xxxx Heat, Inc.
Xxxx Industrial Supply Co., Inc.
Xxxx Intellectual Property
Holdings, Inc.
Xxxx International, Inc.
Xxxx XX Holdings, L.L.C.
Xxxx Maintenance, Inc.
By: /s/ XXXXXX X. XXXX
-----------------------------------------
Xxxxxx X. Xxxx
Vice President and Treasurer
S C Xxxxx, L.L.C.
by its sole member,
Stone & Xxxxxxx, Inc.
By: /s/ XXXXXX X. XXXX
--------------------------------
Xxxxxx X. Xxxx
Vice President and Treasurer
GUARANTORS (continued):
Xxxx Managed Services, Inc.
Xxxx Management Services
One, Inc.
Xxxx NAPTech, Inc.
Xxxx Pipe Xxxxxxx, Inc.
Xxxx Pipe Supports, Inc.
Xxxx Power Services Group, L.L.C.
Xxxx Power Services, Inc.
Xxxx Process and Industrial
Group, Inc.
Xxxx Process Fabricators, Inc.
Xxxx Services, L.L.C.
Xxxx SSS Fabricators, Inc.
Xxxx Sunland Fabricators, Inc.
Xxxx Word Industries
Fabricators, Inc.
Stone & Xxxxxxx Asia, Inc.
Stone & Xxxxxxx Holding One, Inc.
Stone & Xxxxxxx Holding Two, Inc.
Stone & Xxxxxxx International
Holdings, Inc.
Stone & Xxxxxxx International, Inc.
Stone & Xxxxxxx Management
Consultants, Inc.
Stone & Webster Massachusetts, Inc.
Stone & Xxxxxxx Process
Technology, Inc.
By: /s/ XXXXXX X. XXXX
-----------------------------------------
Xxxxxx X. Xxxx
Vice President and Treasurer
Stone & Xxxxxxx Services, L.L.C.
Stone & Xxxxxxx, Inc.
SWINC Acquisition Five, L.L.C.
By: /s/ XXXXXX X. XXXX
-----------------------------------------
Xxxxxx X. Xxxx
Vice President and Treasurer
GUARANTORS (continued):
Stone & Xxxxxxx Construction
Services, L.L.C.
Stone & Xxxxxxx Construction, Inc.
By: /s/ XXXXXX X. XXXX
-----------------------------------------
Xxxxxx X. Xxxx
President
ArlingtonAvenue E Venture,
LLC by its sole
member, LandBank
Properties, L.L.C.
By: /s/ X.X. XXXXXXXX, XX.
--------------------------------
X.X. Xxxxxxxx, Xx.
Chief Executive Officer and
Chairman
Camden Road Venture, LLC
by its sole
member, LandBank
Properties, L.L.C.
By: /s/ X.X. XXXXXXXX, XX.
--------------------------------
X.X. Xxxxxxxx, Xx.
Chief Executive Officer and
Chairman
Great Southwest Parkway
Venture, LLC by
its sole member,
LandBank
Properties, L.L.C.
By: /s/ X.X. XXXXXXXX, XX.
--------------------------------
X.X. Xxxxxxxx, Xx.
Chief Executive Officer and
Chairman
GUARANTORS (continued):
LandBank Properties, L.L.C.
Xxxx Environmental Liability
Solutions, L.L.C.
The LandBank Group, Inc.
By: /s/ X.X. XXXXXXXX, XX.
-----------------------------------------
X.X. Xxxxxxxx, Xx.
Chief Executive Officer and Chairman
Benicia North Gateway II, L.L.C.
Xxxxxxxx Wetlands, L.L.C.
XX Xxxxxxx XX, L.L.C.
Jernee Mill Road, L.L.C.
Kato Road II, L.L.C.
XXX I, L.L.C.
LandBank Xxxxx, L.L.C.
Millstone River Wetland
Services, L.L.C.
Xxxxxxx Venture I, L.L.C.
Otay Mesa Ventures II, L.L.C.
Plattsburg Venture, L.L.C.
Raritan Venture I, L.L.C.
Xxxx California, L.L.C.
Xxxx CMS, Inc.
Xxxx Remediation Services, L.L.C.
By: /s/ X.X. XXXXXXXX, XX.
-----------------------------------------
X.X. Xxxxxxxx, Xx.
President
CREDIT LYONNAIS NEW YORK BRANCH,
as Agent and as a Lender
By: /s/ Conformed Signature
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
BNP PARIBAS,
as a Lender
By: /s/ Conformed Signature
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
By: /s/ Conformed Signature
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH,
as a Lender
By: /s/ Conformed Signature
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
XXXXXX TRUST AND SAVINGS BANK,
as a Lender
By: /s/ Conformed Signature
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
U.S. BANK NATIONAL ASSOCIATION
as a Lender
By: /s/ Conformed Signature
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
UNION PLANTERS BANK, N.A.
as a Lender
By: /s/ Conformed Signature
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
UBS AG, CAYMAN ISLANDS BRANCH
as a Lender
By: /s/ Conformed Signature
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
By: /s/ Conformed Signature
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
