AMENDMENT NO. 4
EXHIBIT
10.1
EXECUTION COPY
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of October 13, 2006 among The Xxxx Group Inc. (the
“Borrower”), the subsidiaries of the Borrower listed on the signature pages hereto as
“Guarantors” and BNP Paribas, as administrative agent (in such capacity, the “Agent”)
pursuant to authority granted by all of the Lenders.
The Borrower, the “Guarantors” party thereto, the “Lenders” party thereto and the Agent are
parties to a Credit Agreement dated as of April 25, 2005 (as amended by Amendment No. 1 dated as of
October 3, 2005, Amendment No. 2 dated as of February 27, 2006 and Amendment No. 3 dated as of June
20, 2006, and as modified and supplemented and in effect from time to time, the “Credit
Agreement”), providing, subject to the terms and conditions thereof, for extensions of credit
(by means of loans and letters of credit) to be made by said lenders to the Borrower.
The parties hereto wish to amend the Credit Agreement as hereinafter set forth and accordingly
hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this Amendment No. 4, terms
defined in the Credit Agreement are used herein as defined therein.
Section 2. Amendments. Subject to the satisfaction of the conditions precedent
specified in Section 4 below, but effective as of the date hereof, the Credit Agreement shall be
amended as follows:
2.01. References Generally. References in the Credit Agreement (including references
to the Credit Agreement as amended hereby) to “this Agreement” (and indirect references such as
“hereunder”, “hereby”, “herein” and “hereof”) shall be deemed to be references to the Credit
Agreement as amended hereby.
2.02. Definitions. Article I of the Credit Agreement shall be amended by amending the
following definitions (to the extent already included in said Article I) and adding the following
definitions in the appropriate alphabetical location (to the extent not already included in said
Article I):
“Aggregate Commitment” means $750,000,000 (before giving effect to any
increase of the Aggregate Facility LC Commitment on the Amendment No. 4 Effective Date
pursuant to Section 2.21), as reduced or increased from time to time pursuant to the terms
hereof.
“Aggregate Facility LC Commitment” means $750,000,000 (before giving effect to
any increase of the Aggregate Facility LC Commitment on the Amendment No. 4 Effective Date pursuant to Section 2.21), as reduced or increased from
time to time pursuant to the terms hereof.
“Aggregate Revolving Credit and Financial LC Commitment” means (a) through and
including November 30, 2007, $525,000,000 and (b) after November 30, 2007, $425,000,000.
“Aggregate Revolving Credit Commitment” means (a) through and including
November 30, 2007, $525,000,000 and (b) after November 30, 2007, $425,000,000.
“Amendment No. 4” means Amendment No. 4, dated as of October ___, 2006, to
this Agreement.
“Amendment No. 4 Effective Date” means the date that the amendments to this
Agreement set forth in Amendment No. 4 become effective.
“Consolidated Fixed Charges Ratio” means for any Calculation Period, the ratio
of (a) (i) Xxxx EBITDA for such Calculation Period less (ii) Non-Financed Capital
Expenditures plus (iii) the Net Cash Proceeds from the sale of any asset and which is
allocated to any such asset as part of such sale, which would be classified as a fixed or
capital asset on a consolidated balance sheet of the Consolidated Group prepared in
accordance with Agreement Accounting Principles but excluding those expenditures incurred
to replace assets lost due to casualty or condemnation, provided that the proceeds from
insurance or condemnation are used to pay therefor; to (b) the sum of (i) Consolidated
Interest Expense excluding any amortization of financing fees, amortization of discounts
and other interest expenses not paid in cash, (ii) mandatory scheduled principal payments
on any Indebtedness (other than principal due upon the Facility Termination Date and
amounts to be paid in connection with the tender for the Borrower’s notes evidencing its
term debt), (iii) taxes paid in cash and determined, directly or indirectly, by the income
of the Borrower or any Person in the Consolidated Group, and (iv) any reimbursement
payments made in respect of disbursements under the Excluded SPV Letters of Credit (but
without double-counting of any such payments and amounts referred to in any of the
preceding clauses (i), (ii) and (iii)).
“Consolidated Group” means the Borrower, its Subsidiaries and all other
Persons (other than the Excluded SPV) treated as if they were Subsidiaries of the Borrower
for purposes of preparing consolidated financial statements of the Borrower in accordance
with Agreement Accounting Principles, including those Persons required to be consolidated
by reason of FIN 46.
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“Consolidated Net Income” means, with reference to any period, the net income
(or loss) of the Consolidated Group calculated according to Agreement Accounting Principles
on a consolidated basis for such period, excluding any such net income attributable to any
Investment in any Person (including the Excluded
SPV) that is not a Subsidiary except to the extent of cash distributions from such
Person (including the Excluded SPV) to the Borrower or its Subsidiaries.
“Excluded SPV” means Nuclear Energy Holdings, L.L.C., a Delaware limited
liability company, which is a special purpose vehicle created for the sole purpose of
making the Westinghouse Investments and engaging in certain transactions related thereto.
“Excluded SPV Letters of Credit” has the meaning specified in Section
6.30.
“Excluded SPV Notes” has the meaning specified in Section 6.30.
“Lender Addendum” means a Lender Addendum, substantially in the form of
Exhibit 2.21 to Amendment No. 4, pursuant to which an existing Lender at such time shall
have increased its Commitments or a Person shall have become a Lender and undertaken new
Commitments at such time.
“Performance Letter of Credit” means a Letter of Credit qualifying as a
“performance-based standby letter of credit” under 12 CFR Part 3, Appendix A, Section
3(b)(2)(i) or as a “commercial letter of credit” or other short-term self liquidating
instrument used to finance the movement of goods that are collateralized by the underlying
shipment under 12 CFR Part 3, Appendix A, Section 3(b)(3), or in each case under any
successor U.S. Comptroller of the Currency regulation.
“Revolving Credit Commitment” means, for each Lender, the obligation of such
Lender to make Revolving Credit Loans, other than Swing Line Loans, to Borrower in an
aggregate amount not exceeding its Facility LC Commitment, as modified from time to time
pursuant to the terms hereof.
“Subsidiary” of a Person means (i) any corporation (other than the Excluded
SPV) more than 50% of the outstanding securities having ordinary voting power of which
shall at the time be owned or controlled, directly or indirectly, by such Person or by one
or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii)
any partnership, limited liability company, association, joint venture or similar business
organization (other than the Excluded SPV) more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled. Unless
otherwise expressly provided, all references herein to a “Subsidiary” shall mean a
Subsidiary of the Borrower. Without limiting the foregoing provisions of this definition,
no Person shall be deemed to be a Subsidiary of the Borrower solely by reason of FIN 46.
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“Supplemental Credit Facility” means any revolving credit facility, term loan
facility, letter of credit facility and/or any combination of any of the foregoing entered
into by the Borrower (other than any such facility entered into as permitted by Section
6.20(b) hereof); provided that (i) no such facility shall
contain any covenant, representation, warranty, event of default, mandatory prepayment
provision or any other measure of financial performance that is not included in this
Agreement or that would be more onerous or restrictive on the Borrower or its Subsidiaries
than the analogous provision contained in this Agreement and (ii) no such facility shall
require the Borrower to make any regularly scheduled prepayment or amortization or require
a reduction of the commitments under such facility prior to the Facility Termination Date.
For purposes hereof, the amount of any Supplemental Credit Facility shall be the higher of
the aggregate amount of extensions thereunder and the aggregate amount of the commitments
to provide extensions thereunder.
“Westinghouse Entities” means (a) Toshiba Nuclear Holdings (US) Inc., a
Delaware corporation, and (b) Toshiba Nuclear Holdings (UK) Limited, an English company.
“Westinghouse Investments” means the acquisition of up to 20.0% of the issued
and outstanding capital stock of each Westinghouse Entity.
“Wholly-Owned Subsidiary” of a Person means (i) any Subsidiary all of the
outstanding voting securities (excluding directors’ qualifying shares) of which shall at
the time be owned or controlled, directly or indirectly, by such Person or one or more
Wholly-Owned Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization (other than the Excluded SPV)
100% of the ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
2.03. Increase of the Commitments. Section 2.21(a) of the Credit Agreement shall be
amended to read as follows:
“(a) Subject to Section 2.21(b) below, the amount of the Aggregate Facility LC
Commitment may be increased by an amount measured from the Amendment No. 4 Effective Date
not to exceed the difference of (x) $250,000,000 minus (y) the aggregate amount of
all Supplemental Credit Facilities permitted by Section 6.11(p), at the request of
the Borrower from time to time as follows: (i) the Borrower shall designate one or more
financial institutions acceptable to the Administrative Agent (which acceptance will not be
unreasonably withheld), to assume Facility LC Commitments in an aggregate amount equal to
the amount of such increase and (ii) on the date that such increase becomes effective,
Revolving Credit Loans shall be repaid and/or borrowed to the extent necessary such that
they shall be held by the Lenders ratably in proportion to their respective Pro Rata Shares (determined after giving
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effect to such designations). In the event of the designation by
the Borrower of a financial institution pursuant to clause (i) of the preceding sentence
(each financial institution being so designated being referred to herein as an
“Assuming Lender”), and subject to the execution and delivery to the Administrative
Agent by the Borrower and such Assuming Lender of documentation satisfactory to the
Administrative Agent in its reasonable discretion to effect such designation: (x) such
Assuming Lender shall become (or, if such Assuming Lender was theretofore a Lender shall
continue as) a Lender having a Facility LC Commitment equal to the amount of such increase
allocated to such Assuming Lender in such designation (plus, if such Assuming Lender was
theretofore a Lender, the amount of the Facility LC Commitment held by such Assuming Lender
immediately prior to such designation) and (y) the participations in outstanding Letters of
Credit and Reimbursement Obligations shall thereupon automatically and without further
action be re-allocated all to the extent necessary such that the participations in such
Letters of Credit and Reimbursement Obligations shall be held by the Lenders ratably in
proportion to their respective Pro Rata Shares (determined after giving effect to such
designations). In no event shall any Lender be required to become an Assuming Lender.”
2.04. Indebtedness. A new Section 6.11(p) shall be inserted in the Credit Agreement
reading as follows:
“(p) Indebtedness under Supplemental Credit Facilities, provided that the aggregate
amount of all Supplemental Credit Facilities shall not exceed the difference of (x)
$250,000,000 minus (y) the aggregate amount by which the Aggregate Facility LC
Commitments have been increased pursuant to Section 2.21 on or following the
Amendment No. 4 Effective Date.”
2.05. Investments and Acquisitions. A new Section 6.14(l) shall be inserted in the
Credit Agreement reading as follows:
“(l) Investments in the capital stock of the Excluded SPV, the Excluded SPV Letters of
Credit and any reimbursement payments made in respect of disbursements under the Excluded
SPV Letters of Credit.”
2.06. Liens. A new Section 6.15(i) shall be inserted in the Credit Agreement reading
as follows:
“(i) Liens securing obligations under Supplemental Credit Facilities permitted by
Section 6.11(p) on assets constituting collateral security under the Collateral
Documents; provided that (x) such Liens shall rank pari passu in priority with the Liens
created by the Collateral Documents pursuant to an intercreditor agreement reasonably
satisfactory to the Agent (and as to which the Required Lenders have not objected in
writing after having had not less than 10 days to review the same) and (y) (subject to
Section 2.2(c), if no extensions of credit are outstanding under any Supplemental Credit
Facilities secured by Liens
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permitted by this paragraph (i)) the sum of the aggregate
amount of all extensions of credit outstanding under Supplemental Credit Facilities plus
the Aggregate Outstanding Credit Exposure (which for purposes of this paragraph (i) shall
be deemed reduced by 50% of the aggregate undrawn stated amount under all
Performance Letters of Credit at the time of determination) shall not exceed the
Borrowing Base at any time during any Restricted Period.”
2.07. Letters of Credit. Section 6.20 of the Credit Agreement shall be amended to
read as follows:
“Section 6.20 Letters of Credit. The Borrower will not, nor will it permit
any Subsidiary to, apply for or become liable upon or in respect of any Letter of Credit
other than (a) Facility LCs, (b) Performance Letters of Credit in an aggregate amount
(excluding Facility LCs) not to exceed $150,000,000 in the aggregate for Borrower and its
Subsidiaries provided that the account party’s reimbursement obligations with respect to
such Letters of Credit (other than Facility LCs issued hereunder) are unsecured and (c)
Letters of Credit issued under Supplemental Credit Facilities.”
2.08. Financial Covenants. Section 6.22.1 of the Credit Agreement shall be amended to
read as follows:
“6.22.1 Leverage Ratio. Borrower will not permit the Leverage Ratio to
exceed (i) 2.75 to 1.00 as of the last day of any of its fiscal quarters ending prior to
August 31, 2007; and (ii) 2.50 to 1.00 as of the last day of any of its fiscal quarters
ending on or after August 31, 2007.”
2.09. Financial Covenants. Section 6.22.2 of the Credit Agreement shall be amended to
read as follows:
“6.22.2 Consolidated Fixed Charge Coverage Ratio. Borrower will not permit
the Consolidated Fixed Charges Ratio to be less than (i) 2.25 to 1.00 as of the last day of
any of its fiscal quarters ending on or prior to the date 18 months after the Amendment No.
4 Effective Date; and (ii) 2.50 to 1.00 as of the last day of any of its fiscal quarters
ending thereafter.”
2.10. Name, Fiscal Year and Accounting Method. Section 6.26 of the Credit Agreement
shall be amended to read as follows:
“6.26 Name, Fiscal Year and Accounting Method. The Borrower shall not, and
shall not permit any of its Subsidiaries to, change its name, fiscal year or method of
accounting except as required by Agreement Accounting Principles; provided, however, that
(a) any of the Borrower and its Subsidiaries may change its name if the Borrower has given
the Agent 30 days prior written notice of such name change and taken such action as Agent
deems reasonably necessary to continue the perfection of the Liens securing payment of the
Secured Obligations
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and(b) the Borrower may change its fiscal year on a single occasion if
the Borrower has given the Agent 30 days prior written notice of such change.”
2.11. Excluded SPV. A new Section 6.30 shall be inserted in the Credit Agreement
reading as follows:
“6.30 Excluded SPV.
(a) Notwithstanding anything to the contrary contained in this Agreement, the
Borrower shall not permit the Excluded SPV to engage in any business or activity, other
than making the Westinghouse Investments and issuing notes, the proceeds of which shall be
used to make the Westinghouse Investments (the “Excluded SPV Notes”).
(b) Notwithstanding anything to the contrary contained in this Agreement, the
Borrower shall not, and shall not permit any Subsidiary to, make any Investment in the
Excluded SPV or incur any Indebtedness or provide other credit support for the direct or
indirect benefit of the Excluded SPV (including any direct or indirect guarantee or other
credit support of any Indebtedness of the Excluded SPV), other than (i) causing revolving
Financial Letters of Credit to be issued under this Agreement in a maximum amount for the
Excluded SPV at any time not to exceed $175,000,000 to provide for payments of principal of
and interest on the Excluded SPV Notes (the “Excluded SPV Letters of Credit”), (ii)
an equity Investment not to exceed $35,000,000 in the Excluded SPV and (iii) the payment of
certain transaction costs and expenses not to exceed $25,000,000 in the aggregate for the
Excluded SPV, relating to the formation of the Excluded SPV, the issuance of the Excluded
SPV Notes and the making of the Westinghouse Investments.
(c) The Borrower shall cause to be inserted into the indenture or similar instrument
governing the Excluded SPV Notes no later than the time the same are issued a provision
reasonably satisfactory to the Agent in form and substance substantially to the effect of
Section 15.8 hereof, but with such changes as shall be necessary to constitute such
provision an acknowledgement by the holders of the Excluded SPV Notes that neither the
Borrower nor any of the Guarantors shall have any liability with respect to the Excluded
SPV Notes.”
2.12. Execution of Collateral Documents. Section 10.15 of the Credit Agreement shall
be amended by inserting at the end thereof a new sentence to read as follows:
“Notwithstanding anything to the contrary contained in this Agreement, the Agent is hereby
empowered and authorized to execute and deliver, on behalf of the Lenders, any
intercreditor agreement reasonably satisfactory to the Required Lenders pursuant to
Section 6.15(i).”
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2.13. Separateness of Excluded SPV. A new Section 15.8 shall be inserted in the
Credit Agreement reading as follows:
“15.8 Separateness of Excluded SPV. The Lenders acknowledge (i) the
separateness of the Excluded SPV from other Persons, (ii) that each holder of the Excluded
SPV Notes has likely purchased the Excluded SPV Notes in reliance upon the separateness of
the Excluded SPV from other Persons, (iii) that the Excluded SPV has assets and liabilities
that are separate from those of other Persons, (iv) that the obligations of the Borrower
and the Guarantors under the Loan Documents, and any certificate, notice, instrument or
document delivered pursuant thereto (A) do not constitute a debt or obligation of the
Excluded SPV and (B) have not been guaranteed by the Excluded SPV, and (v) that the
Excluded SPV shall not be personally liable to the Lenders for any amounts payable or any
liability under any Loan Document or and any certificate, notice, instrument or document
delivered pursuant thereto.”
Section 3. Representations and Warranties. The Borrower represents and warrants to
the Lenders that the representations and warranties set forth in Article V of the Credit Agreement
are true and correct on the date hereof as if made on and as of the date hereof (except to the
extent any such representation or warranty is stated to relate solely to an earlier date, in which
case such representation or warranty shall have been true and correct on and as of such earlier
date) and as if each reference in said Article V to “this Agreement” included reference to this
Amendment No. 4.
Section 4. Conditions Precedent. The amendments set forth in Section 2 hereof shall
become effective, as of the date hereof, upon:
(i) the execution and delivery of counterparts of this Amendment No. 4 by the
Borrower, the Guarantors and the Agent pursuant to authority granted by all of the Lenders
(and the Borrower and each Guarantor, by its execution and delivery of this Amendment No.
4, each hereby confirms and ratifies all of its respective obligations under the Guaranty,
the Security Agreement and the Subordination Agreement with respect to the amendments
effected hereby),
(ii) the Borrower furnishing the following to the Agent each in form and substance
satisfactory to the Agent and with sufficient copies for the Lenders, where appropriate,
executed by the relevant Person:
(a) a copy, certified by the Secretary or Assistant Secretary of the
Borrower, of its by-laws,
(b) a copy, certified by the Secretary or Assistant Secretary of the
Borrower, along with a certificate of good standing and existence from the
Secretary of State of the State of Louisiana, of resolutions of its board of
directors authorizing the execution of this Amendment No. 4,
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(c) an incumbency certificate, executed by the Secretary or Assistant
Secretary of the Borrower which shall identify by name and title and bear the
signatures of the Authorized Officers and any other officers or managers of the
Borrower authorized to sign this Amendment No. 4,
upon which certificates the Agent and the Lenders shall be entitled to rely
until informed of any change in writing by the Borrower, and
(d) a written opinion or opinions of counsel to the Borrower and the
Guarantors, addressed to the Lenders and covering such matters as may be required
by Agent, in form and substance reasonably satisfactory to the Agent, and a copy of
a written opinion of counsel to the Borrower, addressed to the Borrower, to the
effect the Excluded SPV will not be consolidated with the Borrower or any Guarantor
in a case brought under Title 11 of the United States Code in which the Excluded
Subsidiary, the Borrower or any Guarantor is the subject.
(iii) the Borrower furnishing to the Agent each in form and substance satisfactory to
the Agent, and with sufficient copies for the Lenders, a bring-down certificate executed by
the Secretary or Assistant Secretary of each Guarantor, certifying that: (a) the
organizational and operative documents of such Guarantor certified and delivered as of
April 25, 2005 have not been amended, rescinded or otherwise changed and remain in full
force and effect, (b) the incumbency certificate of such Guarantor certified and delivered
as of April 25, 2005 has not been amended, rescinded or otherwise changed, and each
signatory thereto remains an Authorized Officer of such Guarantor and is authorized to sign
this Amendment No. 4, (c) to the best knowledge of such Secretary or Assistant Secretary,
the good standing certificates delivered by such Guarantor in connection with the closing
of the Credit Agreement on April 25, 2005 or the closing of Amendment No. 2 on February 27,
2006, as the case may be, remain true, accurate and correct and that such Secretary or
Assistant Secretary has no knowledge to the contrary thereof and (d) that the copies of the
resolutions of the respective boards of directors, members or managers or any other
governing body authorizing the execution of this Amendment No. 4, as attached to such
certificate, are true, accurate and correct and remain in full force and effect,
(iv) the Borrower furnishing to the Agent (a) copies of the commercial agreements to
be entered into between the Borrower and/or any of its Subsidiaries, on the one hand, and
the Westinghouse Entities (such term and any other capitalized term used in this paragraph
that is not defined herein or in the Credit Agreement having the meanings in this paragraph
assigned to them in the Credit Agreement as contemplated to be amended by this Amendment
No. 4) and/or any of Subsidiaries of either Westinghouse Entity, on the other hand, which
shall be reasonably satisfactory to the Agent, (b) a copy of the offering materials for the
Excluded SPV Notes, which shall be reasonably satisfactory to the Agent and (c) evidence
that the Westinghouse Investments shall have been (or shall be simultaneously) made and the
Excluded SPV Notes shall have been (or shall be simultaneously) issued, in each case
referred to in this clause (c) in
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accordance with definitive documentation in form and
substance reasonably satisfactory to the Administrative Agent, and
(v) the Agent receiving evidence of the payment by the Borrower of all fees payable to
the Lenders that the Borrower has agreed to pay in connection with this Amendment No. 4
(including a consent fee payable to each Lender equal to 0.125% (12.5 basis points) of such
Lender’s Facility LC Commitment).
Section 5. Miscellaneous. Except as herein provided, the Credit Agreement shall
remain unchanged and in full force and effect. This Amendment No. 4 may be executed in any number
of counterparts, all of which taken together shall constitute one and the same amendatory
instrument and any of the parties hereto may execute this Amendment No. 4 by signing any such
counterpart. This Amendment No. 4 shall be governed by, and construed in accordance with, the law
of the State of New York.
[Remainder of page intentionally blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4 to be duly executed
and delivered as of the day and year first above written.
| THE XXXX GROUP INC. |
||||
| By: | ||||
| Xxxxxx X. Xxxx | ||||
| Executive Vice President and Chief Financial Officer | ||||
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| GUARANTORS: | ||||||
| WHIPPANY VENTURE I, L.L.C | ||||||
| HYDRO POWER SOLUTIONS LLC | ||||||
| By: | ||||||
| Executive Vice President | ||||||
| XXXX CONSTRUCTORS, INC. | ||||||
| By: | ||||||
| Xxxxxx Xxxxxxxxx | ||||||
| President | ||||||
| STONE & XXXXXXX MICHIGAN, INC. | ||||||
| By: | ||||||
| Xxxx X. Xxxxxxx | ||||||
| Vice President and Secretary | ||||||
| SO-XXXX GAS CO., LLC | ||||||
| by its sole member, | ||||||
| EMCON/OWT, Inc. | ||||||
| By: | ||||||
| Xxxxxx X. Xxxx | ||||||
| Executive Vice President, Assistant Treasurer and Assistant Chief Financial Officer | ||||||
| EMCON/OWT, INC. | ||||||
| By: | ||||||
| Xxxxxx X. Xxxx | ||||||
| Executive Vice President, Assistant Treasurer and Assistant Chief Financial Officer | ||||||
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| GUARANTORS (continued) | ||||
| AMERICAN PLASTIC PIPE AND | ||||
| SUPPLY, L.L.C. | ||||
| X.X. XXXX, INC. | ||||
| C.B.P. ENGINEERING CORP. | ||||
| EDS EQUIPMENT COMPANY, LLC | ||||
| EDS PUERTO RICO, INC. | ||||
| ENVIROGEN, INC. | ||||
| FIELD SERVICES, INC. | ||||
| LFG SPECIALTIES, L.L.C. | ||||
| MWR, INC. | ||||
| PROSPECT INDUSTRIES (HOLDINGS), INC. | ||||
| XXXX | ALLOY PIPING PRODUCTS, INC. | |||
| XXXX | BENECO, INC. | |||
| XXXX | COASTAL, INC. | |||
| XXXX | CONNEX, INC. | |||
| XXXX | E & I INVESTMENT HOLDINGS, INC. | |||
| XXXX | EUROPE, INC. | |||
| XXXX | ENERGY DELIVERY SERVICES, INC. | |||
| XXXX | ENVIRONMENTAL, INC. | |||
| XXXX | ENVIRONMENTAL & | |||
| INFRASTRUCTURE, INC. | ||||
| XXXX | ENVIRONMENTAL & | |||
| INFRASTRUCTURE MASSACHUSETTS, INC. | ||||
| XXXX ENVIRONMENTAL | ||||
| INTERNATIONAL, INC. | ||||
| XXXX | FABRICATORS, INC. | |||
| XXXX | FACILITIES, INC. | |||
| XXXX | FIELD SERVICES, INC. | |||
| XXXX | FT. XXXXXXX WOOD HOUSING, L.L.C. | |||
| XXXX | GLOBAL ENERGY SERVICES, INC. | |||
| XXXX | GRP OF CALIFORNIA | |||
| XXXX | INDUSTRIAL SUPPLY CO., INC. | |||
| XXXX | INFRASTRUCTURE, INC. | |||
| XXXX | INTELLECTUAL PROPERTY | |||
| HOLDINGS, INC. | ||||
| XXXX | INTERNATIONAL, INC. | |||
| XXXX | XX HOLDINGS, L.L.C. | |||
| XXXX | LITTLE ROCK HOUSING, L.L.C. | |||
| XXXX | LIQUID SOLUTIONS LLC | |||
| XXXX | MAINTENANCE, INC. | |||
| XXXX | POWER SERVICES GROUP, L.L.C. | |||
| XXXX | PROJECT SERVICES GROUP, INC. | |||
| XXXX | TRANSMISSION & DISTRIBUTION | |||
| SERVICES, INC. | ||||
| By: | ||||
| Xxxxxx X. Xxxx | ||||
| Executive Vice President and Treasurer | ||||
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| GUARANTORS (continued) | ||||||
| XXXX WASTE SOLUTIONS, LLC | ||||||
| By: | ||||||
| Executive Vice President and Chief Financial Officer | ||||||
| STONE & XXXXXXX — JSC MANAGEMENT CONSULTANTS, INC. | ||||||
| By: | ||||||
| Xxxxxx X. Xxxx | ||||||
| Executive Vice President, Senior Vice President and Treasurer | ||||||
| BADGER TECHNOLOGIES, L.L.C. | ||||||
| BADGER TECHNOLOGY HOLDINGS, X.XX. | ||||||
| PIKE PROPERTIES I, INC. | ||||||
| PIKE PROPERTIES II, INC. | ||||||
| XXXX GLOBAL, L.L.C. | ||||||
| By: | ||||||
| Xxxxxx X. Xxxx | ||||||
| Vice President and Treasurer | ||||||
| S C XXXXX, L.L.C. | ||||||
| by its sole member, | ||||||
| Stone & Xxxxxxx, Inc. | ||||||
| By: | ||||||
| Xxxxxx X. Xxxx | ||||||
| Executive Vice President and Treasurer | ||||||
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| GUARANTORS (continued) | ||||
| INTERNATIONAL CONSULTANTS, L.L.C. | ||||
| XXXX | XXXXX HOUSING, L.L.C. | |||
| XXXX | CAPITAL, INC. | |||
| XXXX | CAPITAL (NEVADA), INC. | |||
| XXXX | CENTCOM SERVICES, L.L.C. | |||
| XXXX | XXXXXXX HOUSING, L.L.C. | |||
| XXXX | HOME LOUISIANA, INC. | |||
| XXXX | MANAGED SERVICES, INC. | |||
| XXXX | MANAGEMENT SERVICES | |||
| ONE, INC. | ||||
| XXXX | XXXXXX CITY TERMINAL, INC. | |||
| XXXX | NAPTECH, INC. | |||
| XXXX | POWER DELIVERY SYSTEMS, INC. | |||
| XXXX | POWER SERVICES, INC. | |||
| XXXX | PROCESS AND INDUSTRIAL | |||
| GROUP, INC. | ||||
| XXXX | PROCESS FABRICATORS, INC. | |||
| XXXX | PROPERTY HOLDINGS, INC. | |||
| XXXX | SERVICES, L.L.C. | |||
| XXXX | SSS FABRICATORS, INC. | |||
| XXXX | SUNLAND FABRICATORS, INC. | |||
| XXXX | TULSA FABRICATORS, INC. | |||
| STONE & XXXXXXX ASIA, INC. | ||||
| STONE & XXXXXXX HOLDING ONE, INC. | ||||
| STONE & XXXXXXX HOLDING TWO, INC. | ||||
| STONE & XXXXXXX, INC. | ||||
| STONE & XXXXXXX INTERNATIONAL, INC. | ||||
| STONE & XXXXXXX INTERNATIONAL HOLDINGS, INC. | ||||
| STONE & WEBSTER MASSACHUSETTS, INC. | ||||
| STONE & XXXXXXX PROCESS | ||||
| TECHNOLOGY, INC. | ||||
| STONE & XXXXXXX MANAGEMENT | ||||
| CONSULTANTS, INC. | ||||
| STONE & XXXXXXX SERVICES, L.L.C. | ||||
| By: | ||||
| Xxxxxx X. Xxxx | ||||
| Executive Vice President and Treasurer | ||||
15
| GUARANTORS (continued) | ||||||
| STONE & XXXXXXX CONSTRUCTION, INC. | ||||||
| By: | ||||||
| Xxxxxx X. Xxxx | ||||||
| President and Executive Vice President | ||||||
| ARLINGTON AVENUE E VENTURE, LLC | ||||||
| CAMDEN ROAD VENTURE, LLC | ||||||
| GREAT SOUTHWEST PARKWAY | ||||||
| VENTURE, LLC | ||||||
| By: | ||||||
| X.X. Xxxxxxxx, Xx. | ||||||
| President | ||||||
| STONE & XXXXXXX CONSTRUCTION SERVICES, L.L.C. | ||||||
| By: | ||||||
| Xxxxxx X. Xxxx | ||||||
| President and Executive Vice President | ||||||
| XXXX INTERNATIONAL MANAGEMENT SERVICES ONE, INC | ||||||
| XXXX INTERNATIONAL MANAGEMENT SERVICES TWO, INC. | ||||||
| XXXX NORTHEAST HOUSING, L.L.C. | ||||||
| XXXX NORTHWEST HOUSING, L.L.C. | ||||||
| XXXX XXXXX & XXXXXXX PUERTO RICO, INC. | ||||||
| By: | ||||||
| Vice President and Treasurer | ||||||
16
| GUARANTORS (continued): | ||||||
| LANDBANK PROPERTIES, L.L.C. | ||||||
| By: | ||||||
| Chief Executive Officer and Chairman | ||||||
| XXXX ENVIRONMENTAL LIABILITY SOLUTIONS, L.L.C. | ||||||
| By: | ||||||
| X.X. Xxxxxxxx, Xx. | ||||||
| Chairman and Chief Executive Officer | ||||||
| THE LANDBANK GROUP, INC. | ||||||
| By: | ||||||
| X.X. Xxxxxxxx, Xx. | ||||||
| Chief Executive Officer | ||||||
17
| GUARANTORS (continued): 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 ALASKA, INC. XXXX AMERICAS, L.L.C. XXXX CALIFORNIA, L.L.C. XXXX CMS, INC. XXXX MEXICO, L.L.C. XXXX REMEDIATION SERVICES, L.L.C. |
||||
| By: | ||||
| X.X. Xxxxxxxx, Xx. | ||||
| President | ||||
| INTEGRATED SITE SOLUTIONS, L.L.C. by its sole member, Xxxx Environmental & Infrastructure, Inc. |
||||
| By: | ||||
| Xxxxxx X. Xxxx | ||||
| Executive Vice President and Treasurer | ||||
18
| GUARANTORS (continued): | ||||||
| NUCLEAR TECHNOLOGY SOLUTIONS, | ||||||
| L.L.C. | ||||||
| by its sole member, | ||||||
| S C XXXXX, L.L.C. | ||||||
| by its sole member, | ||||||
| Stone & Xxxxxxx, Inc. | ||||||
| By: | ||||||
| Executive Vice President and Treasurer | ||||||
| SELS ADMINISTRATIVE SERVICES, L.L.C.
by its sole member, |
||||||
| Xxxx Environmental Liability Solutions, L.L.C. | ||||||
| By: | ||||||
| X.X. Xxxxxxxx | ||||||
| Chairman and Chief Executive Officer | ||||||
| XXXX ENERGY SERVICES, INC. | ||||||
| By: | ||||||
| Xxxxx Xxxxx | ||||||
| President and Treasurer | ||||||
19
| AGENT: | ||||||||
| BNP PARIBAS, as Agent | ||||||||
| By: | ||||||||
| Title: | ||||||||
20
EXHIBIT 2.21
FORM OF LENDER ADDENDUM
FORM OF LENDER ADDENDUM
LENDER ADDENDUM
Reference is made to the Credit Agreement April 25, 2005 (as amended, modified, renewed or
extended from time to time, the “Credit Agreement”) among The Xxxx Group Inc., a Louisiana
corporation (the “Borrower”), the lenders party thereto and BNP Paribas, as Agent for the
Lenders and as an Issuer. Terms used but not defined in this Lender Addendum have the meanings
assigned to such terms in the Credit Agreement.
Upon execution and delivery of this Lender Addendum by the parties hereto as provided in
Section 2.21 and Section 15.17 of the Credit Agreement, the undersigned (i) to the extent not
already a Lender, hereby becomes a Lender under the Credit Agreement and (ii) shall have the
Commitments set forth opposite it signature below, effective as of the date of acceptance specified
below. To the extent that the undersigned is already a Lender under the Credit Agreement, the
Commitments on this Lender Addendum shall supersede its previous Commitments under the Credit
Agreement.
This Lender Addendum shall be construed in accordance with and governed by the law of the
State of New York. This Lender Addendum may be executed by one or more of the parties hereto on
any number of separate counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. Delivery of an executed signature page hereof by facsimile
transmission shall be effective as delivery of a manually executed counterpart hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Lender Addendum to be duly executed
and delivered by their proper and duly authorized officers as of this
___ day of , 20___.
| Commitments: | [NAME OF LENDER] | |||||
| By: | ||||||
| Title: | ||||||
Accepted
and agreed this ___ day of , 20___:
THE XXXX GROUP INC.
By: |
||||||
| Name: | ||||||
Title: |
||||||
| BNP PARIBAS, | ||||||
| as Agent | ||||||
By: |
||||||
Name: |
||||||
Title: |
||||||
2
