[CONFORMED COPY]
AMENDMENT
AMENDMENT dated as of April 12, 2002 (this "AMENDMENT") to AMENDMENT
No. 1 and WAIVER dated as of January 28, 2002 ("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 BANK (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) The definition of "SPECIAL CHARGE" in Section 1(b) of the First
Amendment and Waiver is amended by inserting at the end thereof "and up to an
additional $50,000,000 in charges."
(b) Clause (i) of the definition of "WAIVER PERIOD" in Section 1(b) of
the First Amendment and Waiver is amended by changing "April 15, 2002" to "April
30, 2002".
(c) Section 2(c) of the First Amendment and Waiver is amended by
inserting at the end thereof "or the $30,000,000 shortfall in Consolidated
Adjusted EBITDAR disclosed to the Lenders at the bank meeting held on April 4,
2002".
(d) Clause (i) of the second sentence of Section 2(g) of the First
Amendment and Waiver is amended by changing "April 15, 2002" to "April 30,
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, 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 & Xxxxx Corporate Finance LLC and Xxxxxxxx
Consulting) for which invoices have theretofore been rendered.
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/ Xxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxx
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Title: Assistant Treasurer Title: Vice President and Treasurer
XXXXXX XXXXXXX USA CORPORATION,
as a Borrower
By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Treasurer
FOSTFOSTER XXXXXXX POWER GROUP, INC.
(formerly known as XXXXXX XXXXXXX ENERGY
INTERNATIONAL, INC.), as a Borrower
By: /s/ Xxxxxx X. Xxxxxx
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Title: Treasurer
XXXXXX XXXXXXX ENERGY CORPORATION,
as a Borrower
By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Treasurer
XXXXXX XXXXXXX, INC. (formerly known as
XXXXXX XXXXXXX US HOLDINGS, INC.),
as a Guarantor
By: /s/ Xxxxxx X. Xxxxxx
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Title: Vice President and Treasurer
XXXXXX XXXXXXX INTERNATIONAL HOLDINGS,
INC., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxx
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Title: Vice President and Treasurer
FOREIGN HOLDINGS LTD., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxx
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Title: Treasurer
XXXXXX XXXXXXX LTD., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxx
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Title: Vice President and Treasurer
BANK OF AMERICA, N.A., individually
and as Administrative Agent, LC Issuer and
Swingline Lender
By: /s/ X.X. Xxxxx
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Title: Managing Director
WACHOVIA BANK, NATIONAL
ASSOCIATION, individually and as
Syndication Agent
By: /s/ Xxxxxxxxxxx Xxxxxxx
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Title: Senior Vice President
ABN AMRO BANK N.V., individually and as
Documentation Agent
By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Group Senior Vice President
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Group Vice President
TORONTO DOMINION (TEXAS), INC.
By: Xxx X. Xxxxxx
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Title: Vice President
NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
By:
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Title:
NATIONAL WESTMINSTER BANK PLC,
NASSAU BRANCH
By:
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Title:
THE BANK OF NOVA SCOTIA
By: /s/ Xxxx X. Xxxxxx
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Title: Managing Director
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:
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Title:
CITIBANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Director
DEUTSCHE BANK AG NEW YORK BRANCH and/or
CAYMAN ISLANDS BRANCH
By:
-----------------------------------------
Title:
By:
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Title:
BNP PARIBAS (successor by merger
to Paribas)
By:
-----------------------------------------
Title:
By:
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Title:
PNC NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxx
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Title: Vice President
SOCIETE GENERALE, NEW YORK BRANCH
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Title: Managing Director
WELLINGTON PARTNERS LP
By:
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Title:
LIBERTYVIEW FUND LLC
By: /s/ Xxxxxx X. Xxxxxx
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Title: Authorized Signatory
