EXHIBIT 10.31
SIXTH AMENDMENT
SIXTH AMENDMENT (this "Amendment"), dated as of March 7, 2003 among
XXXXXX SERVICES CORPORATION, a Delaware corporation (the "Borrower"), CANADIAN
IMPERIAL BANK OF COMMERCE, as administrative agent for the Lenders (the
"Administrative Agent"), and the lenders from time to time parties to the
Secured PIK/Term Credit Agreement referred to below (the "Lenders"). All
capitalized terms used herein and not otherwise defined herein shall have the
respective meanings provided such terms in the Secured PIK/Term Credit Agreement
referred to below.
W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders and Canadian Imperial Bank of
Commerce, as administrative agent (the "Administrative Agent") are parties to a
Credit Agreement, dated as of March 31, 2000 among the Borrower, the
Administrative Agent and the Lenders (as amended, modified or supplemented
through, but not including, the date hereof, the "Secured PIK/Term Credit
Agreement");
WHEREAS, the Borrower has requested certain amendments to the Credit
Agreement; and
WHEREAS, subject to the terms and conditions of this Amendment, the
Lenders are willing to grant such amendments.
NOW, THEREFORE, it is agreed:
1. The definition of "Permitted Lien" appearing in Section 8 of the
Secured PIK/Term Credit Agreement is hereby amended by (a) deleting the word
"and" immediately preceding sub-clause (v) thereof and inserting a comma in lieu
thereof, (b) deleting existing sub-clause (v) in its entirety and inserting the
following new sub-clauses (v) and (w) in lieu thereof:
"(v) the FEI LLC Lien and (w) Liens not otherwise permitted by the
foregoing clauses (a) through (v) to the extent attaching to tangible
properties and assets with an aggregate fair market value (to be
mutually agreed upon by the Borrower and the Administrative Agent in
good faith and based upon the facts and circumstances as of the date of
determination) not in excess of, and securing liabilities otherwise
permitted hereunder not in excess of, $2,500,000 in the aggregate.".
3. Section 8 of the Secured PIK/Term Credit Agreement is hereby further
amended by inserting the following new definitions:
"FEI LLC Lien" means such lien or liens in an amount not to exceed in
the aggregate $4,000,000 (plus interest, if any, accrued thereon) granted to
Fluor Enterprises, Inc. and/or Plant Performance Services, LLC in respect of the
indemnification obligations
of PSC Industrial Outsourcing, Inc., a Wholly-Owned Subsidiary of the Borrower,
under the PSD Asset Purchase Documents.
"Holdback Security Agreement" means the security agreement among the
Borrower, PSD Industrial Outsourcing, Inc., Fluor Enterprises, Inc. and Plant
Performance Services, LLC, dated as of March 7, 2003.
"PSD Asset Purchase Agreement" means the Membership Interests and Asset
Purchase Agreement among the Borrower, PSD Industrial Outsourcing, Inc., Fluor
Enterprises, Inc. and Plant Performance Services, LLC, dated as of March 7,
2003.
"PSD Asset Purchase Documents" means the PSD Asset Purchase Agreement
and the Holdback Security Agreement.
4. The Borrower hereby represents and warrants that (i) no Default or
Event of Default exists on the Sixth Amendment Effective Date (as defined
below), both before and after giving effect to this Amendment and (ii) all of
the representations and warranties contained in the Secured PIK/Term Credit
Agreement or the other Loan Documents (other than with respect to events that
have been expressly consented to in writing by the Lenders since the date on
which such representations and warranties were first made) shall be true and
correct in all material respects on and before the Sixth Amendment Effective
Date with the same effect as though such representations and warranties had been
made on and as of such date (it being understood that any representation or
warranty made as of a specific date shall be true and correct in all material
respects as of such specific date).
5. This amendment is limited as specified and shall not constitute a
modification, amendment or waiver of any other provision of the Secured PIK/Term
Credit Agreement or any other Loan Documents.
6. This Amendment may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Administrative Agent.
7. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
8. This Amendment shall become effective on the date (the "Sixth
Amendment Effective Date") when each of the Borrower and the Required Lenders
shall have signed a copy hereof (whether the same or different copies) and, in
each case, shall have delivered (including by way of telecopier) the same to the
Administrative Agent at the Notice Office.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date first above
written.
XXXXXX SERVICES CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Title: Vice President, Treasurer
CANADIAN IMPERIAL BANK OF COMMERCE,
As Administrative Agent
By: /s/ X. X. Xxxxxx
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Title: General Manager
ABN AMRO BANK CANADA
By: /s/ Xxxx Xxxxx
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Title: Xxxx Xxxxx
Senior Managing Director
AMERICAN REAL ESTATE HOLDINGS L.P.
By American Property Investors Inc.
By: /s/ Xxxxxx Xxxxxx
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Title:
THE BANK OF EAST ASIA (CANADA)
By: /s/ Xxxxxx Xx
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Title: Xxxxxx Xx
General Manager
By: /s/ Xxxxxxx Xxxxx
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Title: Xxxxxxx Xxxxx
Manager
Date: Feb. 28, 2003
CERBERUS CAPITAL MANAGEMENT, INC.
By: /s/ Xxxxx Xxxxx
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Title: SVP
CERBERUS PARTNERS, L.P.
By: /s/ Xxxxx Xxxxx
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Title: SVP
HIGH RIVER LIMITED PARTNERSHIP
By Burberry Corp., General Partner
By: /s/ Xxxxxx Xxxxxxx
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Title:
XXXXXXXXX CORP.
By: /s/ Xxxxx Xxxxx
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Title: SVP
XXXXXXXXX LLC
By: /s/ Xxxxx Xxxxx
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Title: SVP
