EXECUTION COPY
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT NO. 1 dated as of November 8, 2002 to the Third Amended and
Restated Term Loan and Revolving Credit Agreement dated as of August 2, 2002
(the "CREDIT AGREEMENT") among XXXXXX XXXXXXX LLC (the "COMPANY"), the Borrowing
Subsidiaries (as defined therein), the GUARANTORS party thereto, the LENDERS
party thereto (the "LENDERS") and BANK OF AMERICA, N.A., as Administrative Agent
(the "ADMINISTRATIVE AGENT") and Collateral Agent, and BANC OF AMERICA
SECURITIES LLC, as Lead Arranger and Book Manager.
W I T N E S S E T H :
WHEREAS, the Company has requested that the Lenders agree to modify
certain provisions of the Credit Agreement, and the undersigned Lenders have so
agreed, all on the terms and conditions contained herein;
NOW, THEREFORE, 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 CREDIT AGREEMENT. The definition of
"Consolidated Net Income" in Section 1.01 of the Credit Agreement is amended by
(i) replacing the word "and" at the end of clause (iii) thereof with a comma and
(ii) adding the following text at the end thereof:
and (v) (A) up to an aggregate of $180,000,000 of gross pretax
charges (having an estimated Consolidated Adjusted EBITDA impact of
$166,600,000) to be taken in the fiscal quarter ending closest to
September 30, 2002, and (B) up to an aggregate of $63,235,000 of
additional gross pretax charges that may be taken in the fiscal
quarter ending closest to December 31, 2002 or in any fiscal quarter
ending in 2003 (including the fiscal quarter ending closest to
December 31, 2003), in each case in the individual amounts as
described to the Lenders by the Company on November 1, 2002.
SECTION 3 . REPRESENTATIONS OF THE COMPANY. The Company represents
and warrants that (i) the representations and warranties set forth in the Loan
Documents will be true and correct in all material respects on and as of the
Amendment Effective Date (except with respect to representations and warranties
which specifically refer to an earlier date, which shall be true and correct in
all material respects as of such earlier date) and (ii) no Default will have
occurred and be continuing on such date.
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 . EFFECTIVENESS. This Amendment shall become effective as
of the Effective Date when the following conditions are met (the "AMENDMENT
EFFECTIVE DATE"):
(a) the Administrative Agent shall have received from each of the
Company, each Borrowing Subsidiary, each other Guarantor and 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;
(b) the Administrative Agent shall have received from the
Company, for the account of each Lender that has evidenced its
agreement hereto as provided in subsection (a) above by 12:00 p.m.
(New York City time) on the later of (i) November 8, 2002 and (ii)
the date on which the Administrative Agent issues a notice to the
Lenders stating that the condition set forth in subsection (a) above
has been satisfied, an amendment fee in an amount equal to 0.75% of
such Lender's Credit Exposure;
(c) the Administrative Agent shall have received a work fee for
the account of the Administrative Agent in an amount as previously
agreed between the Company and the Administrative Agent; and
(d) 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 (including
without limitation the fees and expenses of Xxxxx Xxxx & Xxxxxxxx and
Ernst & Young Corporate Finance LLC) 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
By: Foreign Holdings Ltd.,
its sole member
By: /S/ XXXX X. XXXXX By: /s/ XXXXXX X. XXXXXX
--------------------------------- ---------------------------
Title: Assistant Secretary Title:Vice President & Treasurer
XXXXXX XXXXXXX USA CORPORATION
By: /s/ XXXXXX X. XXXXXX
-------------------------
Title:Treasurer
XXXXXX XXXXXXX POWER GROUP, INC.
By: /s/ XXXXXX X. XXXXXX
-------------------------
Title:Treasurer
XXXXXX XXXXXXX ENERGY CORPORATION
By: /s/ XXXXXX X. XXXXXX
-------------------------
Title: Authorized Person
XXXXXX XXXXXXX LTD.
By: /s/ XXXXXX X. XXXXXX
---------------------------
Title:Vice President & Treasurer
FOREIGN HOLDINGS LTD.
By: /s/ XXXXXX X. XXXXXX
---------------------------
Title:Treasurer
XXXXXX XXXXXXX INC.
By: /s/ XXXXXX X. XXXXXX
---------------------------
Title:Vice President & Treasurer
XXXXXX XXXXXXX INTERNATIONAL
HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXXX
---------------------------
Title:Vice President & Treasurer
EQUIPMENT CONSULTANTS, INC.
XXXXXX XXXXXXX ASIA LIMITED
XXXXXX XXXXXXX CAPITAL & FINANCE CORPORATION
XXXXXX XXXXXXX CONSTRUCTORS, INC.
XXXXXX XXXXXXX DEVELOPMENT CORPORATION
XXXXXX XXXXXXX ENERGY MANUFACTURING, INC.
XXXXXX XXXXXXX ENERGY SERVICES, INC.
XXXXXX XXXXXXX ENVIRESPONSE, INC.
XXXXXX XXXXXXX ENVIRONMENTAL CORPORATION
XXXXXX XXXXXXX FACILITIES MANAGEMENT, INC.
XXXXXX XXXXXXX INTERNATIONAL CORPORATION
XXXXXX XXXXXXX POWER SYSTEMS, INC.
XXXXXX XXXXXXX PYROPOWER, INC.
XXXXXX XXXXXXX REAL ESTATE DEVELOPMENT CORP.
XXXXXX XXXXXXX REALTY SERVICES, INC.
XXXXXX XXXXXXX VIRGIN ISLANDS, INC.
XXXXXX XXXXXXX XXXX, INC.
FW MORTSHAL, INC.
FW TECHNOLOGIES HOLDING, LLC
HFM INTERNATIONAL, INC.
PROCESS CONSULTANTS, INC.
PYROPOWER OPERATING SERVICES COMPANY, INC.
By: /s/ XXXXXX X. XXXXXX
---------------------------
Title:Authorized Person
PERRYVILLE III TRUST
By: THE BANK OF NEW YORK, not in its
individual capacity but solely in
its capacity as the Owner Trustee
of the Perryville III Trust
By: /s/ XXXXXX MATE
-----------------------------------
Title: Assistant Vice President
BANK OF AMERICA, N.A.
By: /s/ X.X. XXXXX
------------------------------
Title: Managing Director
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ XXXXXXXXXXX XXXXXXX
------------------------------
Title: Senior Vice President
ABN AMRO BANK N.V.
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/ XXXX X. XXXXXX
------------------------------
Title: Vice President
NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
By: /s/ XXXXXXX XXXXX
-------------------------------
Title: Senior Vice President
NATIONAL WESTMINSTER BANK PLC,
NASSAU BRANCH
By: /s/ XXXXXXX XXXXX
-------------------------------
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By: /s/ XXXX X. XXXXXX
-------------------------------
Title: Managing Director
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By: /s/ XXXXX XXXXX
-------------------------------
Title: Managing Director
MARINER LDC
By: /s/ XXXX XXXX
-------------------------------
Title:Director
DEUTSCHE BANK AG NEW YORK
BRANCH AND/OR CAYMAN
ISLANDS BRANCH
By: /s/ XXXXXXX XXXXXXX
--------------------------------------
Title: Vice President
By: /s/ XXXXXX XXXXX
--------------------------------------
Title: Director
BNP PARIBAS
By: /s/ XXXXX XXX
--------------------------------------
Title: Vice President
By: /s/ XXXXXX XXXXXXXXXX
--------------------------------------
Title: Managing Director
PNC BANK, NATIONAL ASSOCIATION
By: /s/ XXXXXX X. XXXXXX
--------------------------------------
Title: Vice President
SOCIETE GENERALE, NEW YORK BRANCH
By: /s/ 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: /s/ XXXXXXXX XXXXX
-------------------------------------
Title: Senior Managing Director
LIBERTYVIEW FUND LLC
By: /s/ XXXXXX X. XXXXXXXX
-------------------------------------
Title: Managing Director
Chief Operations Officer
Liberty View Capital
Management, Inc.
ORIX MERCHANT BANKING, LLC
By: /s/ XXXXXXX X. XXXXXX
-------------------------------------
Title: President & CEO
