AMENDMENT NO. 5 AMENDMENT NO. 5 dated as of July 31, 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")...
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of July 31, 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) The definition
of "SPECIAL CHARGE" in Section 1(b) of the First Amendment and Waiver is amended
to read it in its entirety as follows:
"SPECIAL CHARGE" means, collectively, (i) the special charges
listed on Schedule A hereto and communicated in writing to the Lenders
on January 18, 2002, (ii) up to an additional $186,000,000 in charges
and (iii) any contract writedowns or reduction in claims relating to
the Combe landfill project and/or the SIPCO project.
3
(b) Clause (i) of the definition of "WAIVER PERIOD" in Section 1(b) of
the First Amendment and Waiver is amended by changing "July 31, 2002" to "August
30, 2002".
(c) Clause (i) of the second sentence of Section 2(g) of the First
Amendment and Waiver is amended by changing "July 31, 2002" to "August 30,
2002".
SECTION 3. REPRESENTATIONS OF THE COMPANY. The Company represents and
warrants that (i) subject in the case of Section 3.08 to (w) the matters
disclosed in writing to the Lenders prior to the effective date of the First
Amendment and Waiver, (x) the $30,000,000 shortfall in Consolidated Adjusted
EBITDAR disclosed to the Lenders at the bank meeting held on April 4, 2002, (y)
an additional $26,000,000 shortfall in Consolidated Adjusted EBITDAR and (z) the
Special Charge, 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 &
2
Young 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/ XXXX XXXXX XXXXXXX By /S/ XXXXXX X. XXXXXX
---------------------- --------------------------
Name: Xxxx Xxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxx
Title:Corporate Secretary Title:Vice President & Treasurer
XXXXXX XXXXXXX USA CORPORATION,
as a Borrower
By /S/ XXXXXX X. XXXXXXXX
-------------------------
Name: 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
--------------------------
Name: Xxxxxx X. Xxxxxx
Title:Vice President & Treasurer
XXXXXX XXXXXXX ENERGY CORPORATION,
as a Borrower
By /S/ XXXXXX X. XXXXXXXX
-------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
XXXXXX XXXXXXX INC. (formerly known as
XXXXXX XXXXXXX US HOLDINGS, INC.),
as a Guarantor
By /s/ XXXXXX X. XXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxx
Title:Vice President & Treasurer
XXXXXX XXXXXXX INTERNATIONAL HOLDINGS, INC,
as a Guarantor
By /s/ XXXXXX X. XXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxx
Title:Vice President & Treasurer
FOREIGN HOLDINGS LTD., as a Guarantor
By /s/ XXXXXX X. XXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxx
Title:Vice President & Treasurer
XXXXXX XXXXXXX LTD., as a Guarantor
By /s/ XXXXXX X. XXXXXX
--------------------------
Name: 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
-------------------------
Name: X.X. Xxxxx
Title: Managing Director
WACHOVIA BANK, NATIONAL ASSOCIATION,
individually and as Syndication Agent
By
-----------------------
Name:
Title:
ABN AMRO BANK N.V., individually and as
Documentation Agent
By
-----------------------
Name:
Title:
By
-----------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By
-----------------------
Name:
Title:
BANK OF AMERICA, N.A., individually and as
Administrative Agent, LC Issuer and
Swingline Lender
By
-----------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
individually and as Syndication Agent
By /s/ XXXXXXXXXXX XXXXXXX
-----------------------
Name: Xxxxxxxxxxx Xxxxxxx
Title: Senior Vice President
ABN AMRO BANK N.V., individually and as
Documentation Agent
By
-----------------------
Name:
Title:
By
-----------------------
Name:
Title:
TORONTO DOMINION (TEXAAS), INC.
By
-----------------------
Name:
Title:
BANK OF AMERICA, N.A., individually and as
Administrative Agent, LC Issuer and
Swingline Lender
By
-----------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
individually and as Syndication Agent
By
-----------------------
Name:
Title:
ABN AMRO BANK N.V., individually and as
Documentation Agent
By
-----------------------
Name:
Title:
By
-----------------------
Name:
Title:
TORONTO DOMINION (TEXAAS), INC.
By /S/ XXX X. XXXXXX
-----------------------
Name: Xxx X. Xxxxxx
Title:Vice President
NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
By
----------------------------
Name:
Title:
NATIONAL WESTMINSTER BANK PLC,
NASSAU BRANCH
By
----------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By
----------------------------
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By /S/ XXXXXX XXXXXXXXX
----------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Managing Director
SALOMON BROTHERS HOLDING COMPANY INC.
By
----------------------------
Name:
Title:
DEUTSCHE BANK AG NEW YORK BRANCH and/or
CAYMAN ISLANDS BRANCH
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
BNP PARIBAS
(successor by merger to Paribas)
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By /s/ XXXXXX X. XXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
SOCIETE GENERALE, NEW YORK BRANCH
By
----------------------------
Name:
Title:
DEUTSCHE BANK AG NEW YORK BRANCH and/or
CAYMAN ISLANDS BRANCH
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
BNP PARIBAS
(successor by merger to Paribas)
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By /s/ XXXXXX X. XXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
SOCIETE GENERALE, NEW YORK BRANCH
By /s/ XXXXXX X. XXXXX
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
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
-----------------------------
Name:
Title:
LIBERTYVIEW FUND LLC
By /s/ XXXXXX X. XXXXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director, Chief Operations
Officer, Liberty View Capital
Management, Inc.
