EXHIBIT 10.1(b)(iv)
-------------------
AMENDMENT NO. 4
TO CREDIT AGREEMENT
AMENDMENT NO. 4 (this "Amendment No. 4"), dated as of June 30, 2000,
under the Credit Agreement dated as of June 30, 1997, by and among XXXXX
CORPORATION, a Delaware corporation (the "Company"), the Signatory Lenders party
thereto (the "Lenders") and THE BANK OF NEW YORK, as Agent (the "Agent"), as
amended by Amendment No. 1 to Credit Agreement, dated as of August 18, 1999,
Amendment No. 2 to Credit Agreement, dated as of December 20, 1999, and
Amendment No. 3 to Credit Agreement, dated as of March 31, 2000 (the "Credit
Agreement").
RECITALS
--------
I. Capitalized terms used herein which are not herein defined shall
have the respective meanings ascribed thereto in the Credit Agreement.
II. Pursuant to the letter of understanding dated as of May 26, 2000 by
and among the Company and the lending institutions party thereto (the "Letter of
Understanding"), the Company requested the Lenders to permit the Company to make
certain Investments, Acquisitions and/or Capital Expenditures in an aggregate
principal amount not to exceed $37,500,000 (the "Balaji Investment") in
connection with the Balaji power project in Tamil Nadu, India (the "Balaji
Project"). Pursuant to the Letter of Understanding, the Company informed the
Lenders that in order to preserve the Balaji Project, the Company has paid a
portion of the Balaji Investment in the amount of $6,500,000.
III. The Company has requested the Lenders to permit the Company to
make certain additional Investments, Acquisitions and/or Capital Expenditures in
an aggregate amount not to exceed $20,346,639.50 in connection with the Haripur,
Bangladesh power project, which additional Investments, Acquisitions and/or
Capital Expenditures are not provided for in the Projections attached to
Amendment No. 3 as Schedule A during the period from the date of such
projections through July 31, 2000.
IV. The Company has requested that the Agent and the Lenders (a) waive
certain covenants set forth in the Credit Agreement in connection with the sale
by the Company on May 31, 2000 of the Jazzland entertainment park, (b) agree to
the treatment and allocation of the consideration received by the Company in
respect of such sale and (c) amend certain other covenants and provisions of the
Credit Agreement.
V. The Agent and the Lenders have advised the Company that they are
willing to agree to the Company's request subject to the terms and conditions
set forth herein.
Accordingly, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT
1.1 Additional Definitions. Section 1.1 of the Credit Agreement is
hereby amended by adding the following defined terms in the appropriate
alphabetical order:
"Amendment No. 4": Amendment No. 4 to Credit Agreement, dated as of
June 30, 2000, among the Company, the Lenders party thereto and the
Agent.
"Amendment No. 4 Effective Date": the date on which the conditions
set forth in Section 2.1 of Amendment No. 4 are satisfied.
"Balaji Investment": the Investments, Acquisitions and/or Capital
Expenditures by the Company or any Subsidiary in connection with the
Balaji Project in an aggregate amount not to exceed $37,500,000
(including, without limitation, all Investments, Acquisitions and/or
Capital Expenditures made or incurred on or before the Amendment No.
4 Effective Date).
"Balaji L/C": as defined in paragraph 2.25(g).
"Balaji Project": the Balaji power project in Tamil Nadu, India.
"Balaji Reserve": as defined in paragraph 2.25(g).
"Efficacy Certificate": as defined in paragraph 7.15.
"Haripur L/C": as defined in paragraph 2.25(h).
"Haripur Project": the Haripur 115 megawatt barge-mounted power
project in Haripur, Bangladesh.
"Haripur Reserve": as defined in paragraph 2.25(h).
"Jazzland Sale": as defined in paragraph 7.14.
"June Efficacy Payment": the payment received by the Company in the
sum of $18,696,017 by wire transfer from the Xxxxxxxxx law firm on
June 23, 2000.
"Xxxxxx Facility Agreement": the Facility Agreement dated as of
December 30, 1998 by and among NEPC Consortium Power Ltd., as
borrower, the lenders party thereto and Xxxxxx Bank PLC, New York
Branch, as agent for such lenders, as amended to the Amendment No. 4
Effective Date.
"Xxxxx Efficacy Payment": an amount equal to $9,967,636, subject to
adjustment, representing the portion of the June Efficacy Payment
and an efficacy payment received by the Company in December 1999
that the Company is entitled to retain, as more particularly set
forth in the Efficacy Certificate.
"Removed Projects": as defined in paragraph 8.12(b).
"Sumitomo Facility Events": the non-monetary event by Xxxxx Aviation
(Hong Kong) Limited under the Loan Facility dated June 2, 1998 by
Sumitomo Bank, Limited in favor of Xxxxx Aviation (Hong Kong)
Limited and the non-monetary event by Xxxxx Services Corporation
under its Guarantee issued in connection with such loan facility
leading to the occurrence of an Event of Default under this
Agreement, in each case as described in the memorandum dated June
19, 2000 by the Company to O'Melveny & Xxxxx, counsel to the
Steering Committee.
1.2 Proceeds Disbursement Request. The definition of "Proceeds
Disbursement Request" set forth in Section 1.1 of the Credit Agreement is hereby
deleted in its entirety and the following substituted therefor:
"Proceeds Disbursement Request": a notice of the Company in the
form of Exhibit A to Amendment No. 4, specifying (i) the aggregate
amount of Net Cash Proceeds requested to be disbursed from the
Disbursement Account, (ii) the requested disbursement date, (iii)
the intended use of such Net Cash Proceeds (including, without
limitation, if such Net Cash Proceeds are intended to be used in
connection with the Balaji Project or the Haripur Project) and (iv)
the amount of the Balaji Reserve and the Haripur Reserve, in each
case as of the date of such Proceeds Disbursement Request, and
certifying, representing and warranting that (w) no Default or Event
of Default has occurred and is continuing, (x) such Net Cash
Proceeds shall be used in accordance with and for the purposes and
in the categories and in the amounts set forth in the Projections
except as otherwise permitted by paragraph 8.14 of this Agreement
(or if such Net Cash Proceeds are to be used in connection with (1)
the Balaji Project, that such Net Cash Proceeds shall be used to
fund obligations of the Company or any of its Subsidiaries under the
instruments, documents and agreements governing the Balaji
Investment as in effect on the Amendment No. 4 Effective Date or to
pay or secure reimbursement obligations of the Company in respect of
the Balaji L/C or (2) the Haripur Project, that such Net Cash
Proceeds shall be used to fund obligations of the Company or any of
its Subsidiaries under the Xxxxxx Facility Agreement or the Haripur
L/C), and (y) if such Net Cash Proceeds are to be used in connection
with (1) the Balaji Project, after giving effect to the application
of the requested disbursement the aggregate amount of Investments,
Acquisitions and Capital Expenditures made or committed to be made
by the Company and its Subsidiaries in the Balaji Project does not
exceed $37,500,000 or (2) the Haripur Project, after giving effect
to the application of the requested disbursement the aggregate
amount of funds disbursed from the Disbursement Account applied in
connection with the Haripur Project does not exceed $20,346,639.50.
1.3 Projections. The definition of "Projections" set forth in
Section 1.1 of the Credit Agreement is hereby deleted in its entirety and the
following substituted therefor:
"Projections": the projections of the Company dated July 7, 2000
delivered to the Agent and the Lenders in the form of Schedule A to
Amendment No. 4.
1.4 Disbursement Account, Reserve Account and Collateral for
Subfacility. Section 2.25 of the Credit Agreement is hereby amended by adding
new subsections 2.25(g) and 2.25(h) at the end thereof to read in their entirety
as follows:
(g) Balaji Reserve. On the Amendment No. 4 Effective Date,
the Agent shall establish, and the Company hereby consents to the
establishment by the Agent of, a reserve out of the Disbursement
Account in the amount of $30,000,000 (the "Balaji Reserve") to
provide for the payment by the Company of the Balaji Investment not
paid prior to the Amendment No. 4 Effective Date and to provide for
cash collateral for one or more letters of credit that the Company
and/or its Subsidiaries may be required to deliver or cause to be
delivered in connection with the Balaji Project (the "Balaji L/C"),
the aggregate amount available for drawing under which shall not
exceed the lesser of (x) $30,000,000 and (y) the then remaining
unpaid amount of the Balaji Investment. Notwithstanding anything to
the contrary in this Agreement, the Company shall not be permitted
to request the release of or receive any funds on deposit in or
credited to (x) the Balaji Reserve except as specifically provided
in this paragraph 2.25(g) or (y) the Disbursement Account (other
than the Balaji Reserve) or the Reserve Account in respect of any
obligations of the Company or any of its Subsidiaries relating to
the Balaji Project or the Balaji Investment. In the event that the
Company or any of its Subsidiaries becomes obligated to make any
payment with respect to the Balaji Investment or pay any
reimbursement obligation with respect to the Balaji L/C after the
Amendment No. 4 Effective Date, the Company may request that the
Agent release funds out of the Balaji Reserve by delivering to the
Agent a Proceeds Disbursement Request pursuant to paragraph 2.25(c).
The Balaji Reserve shall be reduced from time to time after the
Amendment No. 4 Effective Date by the amount disbursed from the
Balaji Reserve pursuant hereto. In the event that the obligations of
the Company and its Subsidiaries under the terms of the Balaji
Investment have been satisfied or reduced and the obligation to
deliver the Balaji L/C is terminated or reduced or the Balaji L/C
expires, is reduced or is cancelled (and no other replacement credit
support is required to be provided by the Company or any of its
Subsidiaries under the terms of the Balaji Investment), upon the
delivery by the Company to the Agent of evidence in form and
substance satisfactory to the Agent of such satisfaction, reduction,
termination, expiry or cancellation, the Balaji Reserve shall be
reduced to the extent of such reduction or eliminated, as the case
may be. The creation and maintenance of the Balaji Reserve shall not
alter or affect the determination of the timing and extent to which
Net Cash Proceeds are to be deposited into the Reserve Account in
accordance with the terms of this Agreement.
(h) Haripur Reserve. On the Amendment No. 4 Effective Date,
the Agent shall establish, and the Company hereby consents to the
establishment by the Agent of, a reserve out of the Disbursement
Account in the amount of $20,346,639.50 (the "Haripur Reserve") to
provide for the capital contribution by the Company or a Subsidiary
of the Company in connection with the repayment of the outstanding
balance due and payable under the Xxxxxx Facility Agreement in an
amount not to exceed $16,815,986.00 and to provide for cash
collateral for a debt service reserve account letter of credit that
the Company or such Subsidiary may deliver or cause to be delivered
in connection with the Haripur Project (the "Haripur L/C"), the
aggregate amount available for drawing under which shall not exceed
$3,530,653.50. Notwithstanding anything to the contrary in this
Agreement, the Company shall not be permitted to request the release
of or receive funds on deposit in or credited to (x) the Haripur
Reserve except as specifically provided in this paragraph 2.25(h) or
(y) the Disbursement Account (other than the Haripur Reserve) or the
Reserve Account in respect of any obligations of the Company or any
of its Subsidiaries relating to the Haripur Project. The Company may
request that the Agent release funds out of the Haripur Reserve by
delivering to the Agent a Proceeds Disbursement Request pursuant to
paragraph 2.25(c). The Haripur Reserve shall be reduced from time to
time after the Amendment No. 4 Effective Date by the amount
disbursed from the Haripur Reserve pursuant hereto. In the event
that the obligations of the Company and its Subsidiaries under the
terms of the instruments, documents and agreements governing the
Company's Investment, Capital Expenditure or Acquisition in the
Haripur Project to deliver the Haripur L/C is terminated or reduced
or the Haripur L/C expires, is reduced or is cancelled (and no other
replacement credit support issued by a non-Affiliate is required to
be provided by the Company or any of its Subsidiaries under such
instrument, documents and agreements), upon the delivery by the
Company to the Agent of evidence in form and substance satisfactory
to the Agent of such reduction, termination, expiry or cancellation,
the Haripur Reserve shall be reduced to the extent of such reduction
or eliminated, as the case may be. The creation and maintenance of
the Haripur Reserve shall not alter or affect the determination of
the timing and the extent to which Net Cash Proceeds are to be
deposited into the Reserve Account in accordance with the terms of
this Agreement.
1.5 Additional Subsidiaries. Section 7.12 of the Credit Agreement
encaptioned "Additional Subsidiaries" is hereby renumbered Section 7.13.
1.6 Affirmative Covenants. Section 7 of the Credit Agreement is
hereby amended by adding the following new Sections 7.14, 7.15 and 7.16 to read
in their entirety as follows:
7.14 Jazzland Sale.
Deposit in the Reserve Account directly on the date of receipt
thereof by the Company or any Subsidiary, any cash proceeds
(including, without limitation, any proceeds from drawings under any
letter of credit issued in connection with the sale of the Jazzland
entertainment park (the "Jazzland Sale") naming the Company or any
Subsidiary as a beneficiary) received from the Jazzland Sale, to be
held and disbursed in accordance with paragraph 2.25. The Company
shall provide the Agent with not less than 30 days prior written
notice of the termination or expiration of any such letter of
credit.
7.15 Efficacy Payment.
On or before the Amendment No. 4 Effective Date, deposit in the
Reserve Account $6,000,000 of the Xxxxx Efficacy Payment, to be held
and disbursed in accordance with paragraph 2.25, and deliver to the
Agent and O'Melveny & Xxxxx LLP, counsel to the Steering Committee,
a certificate (the "Efficacy Certificate") of the chief financial
officer of the Company in form and substance satisfactory to the
Agent setting forth in reasonable detail the determination of the
amount of the total efficacy payments (including the June Efficacy
Payment), the amount of the Xxxxx Efficacy Payment and the amounts
payable to other Persons (including a list of such Persons) from the
total efficacy payments. The Company shall use the balance of the
Xxxxx Efficacy Payment not required to be deposited in the Reserve
Account pursuant to this paragraph for working capital purposes in
accordance with the Projections, and payment of professional fees
and other expenses in connection with the restructuring of the
Credit Facility Indebtedness.
7.16 Removed Projects.
On or before July 25, 2000, deliver to the Agent a certificate
from an officer of the Company dated the date of delivery thereof
certifying that attached thereto are true, correct and complete
copies of all instruments, documents and agreements entered into by
the Company or any of its Subsidiaries in connection with or
relating to the Removed Projects.
1.7 Investments, Loans, Advances and Guarantees. Section 8.11 of the
Credit Agreement is hereby amended by deleting clause (viii) thereof in its
entirety and substituting the following therefor:
(viii) the Investment in the Haripur Project described in
paragraph 2.25(h) and the Investments described in the exception to
paragraph 8.12(a).
1.8 Acquisitions. Section 8.12 of the Credit Agreement is hereby
deleted in its entirety and the following substituted therefor:
8.12 Acquisitions.
(a) At any time, make, or enter into an agreement to make (or
permit any Subsidiary to make or enter into an agreement to make),
any Acquisition or make any deposit in connection with any potential
Acquisition except for (i) the Acquisition, or any deposit by the
Company or any Subsidiary in connection with the Acquisition, of any
interest in the Balaji Project and (ii) activities in respect of the
acquisition or development of new facilities, projects or
investments for the Company's energy business, so long as (1) any
activity engaged in by the Company or any Subsidiary or any
agreement entered into by the Company or any Subsidiary with respect
to such activities may be terminated or cancelled by the Company or
such Subsidiary without liability to the Company or such Subsidiary
other than the forfeiture of any deposit made by the Company or such
Subsidiary, and (2) any deposits made by the Company or any of its
Subsidiaries (irrespective of the form of the deposit, including
without limitation, cash deposits or bonds) in respect of the
activities or agreements described in this paragraph 8.12(a)(ii)
shall not exceed $2,500,000 in the aggregate.
(b) Notwithstanding anything to the contrary set forth in
paragraphs 8.11, 8.12(a) or 8.14, at any time make, continue or
commit to any Investments, Acquisitions and/or Capital Expenditures
relating to the following projects (collectively, the "Removed
Projects"):
(i) The $28,000,000 investment in Gulf Electric Public Company
Limited (Thailand) described in Amendment No. 3 and the projections
attached to Amendment No. 3 as Schedule A;
(ii) The $4,000,000 investment in the Maheshwar hydro station
project in Madhya Pradesh, India set forth in the projections
attached to Amendment No. 3 as Schedule A;
(iii) The $5,200,000 investment in the Muscat water treatment
plant in Muscat, Oman set forth in the projections attached to
Amendment No. 3 as Schedule A; and
(iv) The $1,000,000 investment in the Bongaigon coal plant
project in Assam, India set forth in the projections attached to
Amendment No. 3 as Schedule A.
2. CONDITIONS TO EFFECTIVENESS OF AMENDMENT.
2.1 The effectiveness of the amendments and waivers set forth in
this Amendment No. 4 is subject to the prior or simultaneous fulfillment of the
following conditions:
(a) The Agent shall have received this Amendment No. 4 executed
by (i) a duly authorized officer or officers of the Company and (ii) the
Required Lenders;
(b) The Agent shall have received such other documents as it
shall have reasonably requested consistent with the terms hereof;
(c) The representations and warranties set forth in Section 3
hereof shall be true and correct on and as of the Amendment No. 4 Effective
Date;
(d) Holders of Indebtedness under each Covenant Credit Facility
shall have executed, to the extent required by each such Covenant Credit
Facility, waivers or amendments to such credit facilities satisfactory to the
Agent and the Required Lenders containing amendments to the covenants and
related definitions in such credit facilities identical to those set forth in
Section 1 of this Amendment No. 4;
(e) The Agent shall have received payment of all of its
out-of-pocket expenses, including the reasonable fees and expenses of its
counsel Xxxxx, Xxxxxx & Xxxxxx, LLP incurred in connection with this Amendment
No. 4;
(f) The Agent shall have received an amendment to the Xxxxxx
Facility Agreement in form and substance satisfactory to the Agent executed by
the parties to the Xxxxxx Facility Agreement extending the maturity date of the
Tranche B Loan (as defined in the Xxxxxx Facility Agreement) to July 31, 2000;
(g) The Agent shall have received the Efficacy Certificate and
$6,000,000 of the Xxxxx Efficacy Payment shall have been deposited in the
Reserve Account; and
(h) The Agent shall have received confirmation that each of
O'Melveny & Xxxxx LLP, counsel to the Steering Committee, and Ernst & Young
Restructuring LLC, financial advisor to the Steering Committee, shall have
received payment of their respective reasonable fees and expenses incurred
through June 30, 2000.
2.2 The date on which the conditions set forth in Section 2.1 are
satisfied is the "Amendment No. 4 Effective Date".
3. ACKNOWLEDGMENTS, REPRESENTATIONS AND WARRANTIES AND AGREEMENTS.
3.1 The Company represents and warrants to the Agent and each Lender
that:
(a) the Projections attached hereto as Schedule A reflect only
(i) the permanent removal of the Removed Projects from the projections attached
to Amendment No. 3 as Schedule A, and (ii) the addition to the projections
attached to Amendment No. 3 as Schedule A of (A) the Balaji Investment, (B) the
repayment during July 2000 of the outstanding principal balance due and payable
by the Company under the Xxxxxx Facility Agreement in an aggregate amount not to
exceed $16,815,986 and the deletion of such payment during the month of August
2000 and (C) the issuance of the Haripur L/C, and no other additions, deletions
or other modifications have been made to the projections attached to Amendment
No. 3 as Schedule A;
(b) neither the Company nor any Subsidiary shall suffer any
liability or cost as a result of removing from the Projections, and not making,
continuing or committing to any Investments, Acquisitions and/or Capital
Expenditures with respect to, the Removed Projects;
(c) neither the Company nor any of its Subsidiaries has any
obligation to make, whether on the date of this Amendment No. 4 or hereafter
arising, any Investment, Acquisition and/or Capital Expenditures with respect to
the Removed Projects other than such obligations the breach of which would not
result in any liability or cost to the Company or any of its Subsidiaries;
(d) the Balaji Investment shall not exceed the aggregate amount
of $37,500,000;
(e) the Balaji Investment from and after the Amendment No. 4
Effective Date shall not exceed the aggregate amount of $31,000,000;
(f) not more than $2,500,000 (in addition to the initial
$6,500,000 of the Balaji Investment initiated in May 2000) of the Balaji
Investment shall be paid, or is required to be paid, by the Company and/or any
Subsidiary during the period commencing on the Amendment No. 4 Effective Date
and ending on July 31, 2000;
(g) other than the making of the capital contribution in
connection with the repayment of $16,815,986 under the Xxxxxx Facility Agreement
in July 2000 and the issuance of the Haripur L/C, neither the Company nor any of
its Subsidiaries have any obligation to make any Investment, Acquisition or
Capital Expenditure with respect to or in connection with the Haripur Project;
(h) as of the Amendment No. 4 Effective Date, all of the
Accounts, other than the Debt Service Reserve Account (as such terms are defined
in the Finance Agreement dated as of July 14, 1999 between NEPC Consortium Power
Ltd., as borrower, and Overseas Private Investment Corporation, as lender (as
amended to the Amendment No. 4 Effective Date, the "OPIC Facility Agreement")),
required to be funded have been fully funded in accordance with the terms of the
Collateral Account Agreement (as defined in the OPIC Facility Agreement);
(i) the aggregate maximum liability of the Company and its
Subsidiaries in respect of the Debt Service Reserve Account (as defined in
Section 3.1(h)) is $3,530,653.50;
(j) as of the Amendment No. 4 Effective Date, the Haripur
Project is commercially operable on natural gas; and
(k) no default, event of default or material breach by the
Company or any of its Subsidiaries has occurred and is continuing (or would
result after giving effect to the transactions contemplated by this Amendment
No. 4) under (i) the Xxxxxx Facility Agreement, (ii) the OPIC Facility
Agreement, (iii) the Shareholders Agreement dated as of October 21, 1998 by and
among Xxxxx One Limited, Haripur LTD., Wartsila NSD Operations, Inc., EPED A
Company and NEPC Consortium Power Ltd., as amended to the Amendment No. 4
Effective Date, or (iv) any other instruments, documents or agreements entered
into in connection therewith.
3.2 The Company represents and warrants to the Agent and each Lender
that it has received the June Efficacy Payment and that the Company is entitled
to retain $9,967,636 of the total efficacy payments, as more fully set forth in
the Efficacy Certificate.
3.3 The Company shall, immediately after the date hereof, use its
best efforts with O'Melveny & Xxxxx LLP, as counsel to the Steering Committee,
and Ernst & Young Restructuring LLC, as financial advisor to the Steering
Committee, to establish cash management procedures pursuant to which all excess
cash from the Company's and its Subsidiaries' operations and Investments in Asia
shall be deposited in the Reserve Account (subject to resolution of dividend and
taxation issues to the satisfaction of the Company and the Agent) to be held in
the Reserve Account pursuant to Section 2.25 of the Credit Agreement.
3.4 The Company represents and warrants to the Agent and the Lenders
that the reconciliation statement attached hereto as Schedule B sets forth a
true and complete list of: (i) each Permitted Disposition which has occurred on
or before the Amendment No. 4 Effective Date; (ii) the Net Cash Proceeds
received by the Company or any Subsidiary in connection with each such Permitted
Disposition; (iii) the amount and date of each disbursement from the
Disbursement Account requested by the Company; (iv) the aggregate amount of
Restructuring Costs (described in reasonable detail in accordance with the
categories set forth in the definition of Restructuring Costs); (v) the amount
available for disbursement from the Disbursement Account as of the Amendment No.
4 Effective Date; and (vi) the aggregate amount of Net Cash Proceeds deposited
in the Reserve Account. The Company acknowledges and agrees that as of the date
hereof approximately $115,000,000 has been deposited in the Disbursement
Account, which sum constitutes that maximum amount permitted to be deposited in
the Disbursement Account pursuant to the terms of the Credit Agreement and that
all Net Cash Proceeds received by the Company or any Subsidiary after the
Amendment No. 4 Effective Date shall be deposited in the Reserve Account
(including, without limitation, any amount received in connection with a
Permitted Disposition that closed prior to the date hereof) and which sum may be
subject to adjustment in accordance with the definition of "Restructuring Costs"
set forth in Amendment No. 3.
3.5 The Company hereby (a) reaffirms and admits the validity and
enforceability of the Credit Agreement and the other Loan Documents and all of
its obligations thereunder, and (b) represents and warrants to the Agent and
each Lender: (i) as of the date hereof, to the best of its knowledge, there
exists no Default or Event of Default (other than the Default and Event of
Default resulting from Sumitomo Facility Events); and (ii) the Company has full
corporate power and authority to enter into, execute, deliver and carry out the
terms of this Amendment No. 4 and this Amendment No. 4 has been duly authorized
by all proper and necessary corporate action and are not in violation of its
Restated Certificate of Incorporation or By-Laws.
3.6 All references to "this Agreement" in the Credit Agreement and
to "the Credit Agreement" in the other Loan Documents shall be deemed to refer
to the Credit Agreement as amended by this Amendment No. 4.
3.7 Except as specifically set forth herein, the Credit Agreement
and the other Loan Documents shall remain in full force and effect in accordance
with their terms. The consent and limited waiver set forth in Section 4 hereof
are limited solely to the matters described therein and no other term or
provision of the Credit Agreement is implicitly or explicitly waived hereby.
3.8 The Company hereby acknowledges that nothing contained in this
Amendment No. 4 or the Credit Agreement as amended hereby constitutes a
commitment by the Agent or any of the Lenders to issue the Balaji L/C, the
Haripur L/C or any other letter of credit.
3.9 Notwithstanding anything herein to the contrary, the Company
acknowledges and agrees that neither it nor any Subsidiary shall request or have
the right to request the release, use or disbursement of any funds in the
Reserve Account and, without limiting the generality of Section 3.5(a) of this
Amendment No. 4, the set off rights of the Agent in connection with the
Disbursement Account and the Reserve Account as set forth in the Credit
Agreement remain in full force and effect in accordance with the terms of the
Credit Agreement and are hereby reaffirmed and ratified.
3.10 Except for the reimbursement of professional fees described in
Section 2.1 of this Amendment No. 4 and the reimbursement of professional fees
provided for in the amendments to the Covenant Credit Facilities being executed
and delivered substantially contemporaneously with this Amendment No. 4, neither
the Company nor any Subsidiary has paid, has agreed to pay or is obligated to
pay any fees of any nature to the Agent, any Lender or any agent or lender under
any Covenant Credit Facility in connection with the amendments and waivers
contemplated hereby and thereby.
4. CONSENT AND WAIVER
The Lenders, in consideration of the deposit in the Reserve Account
of $6,000,000 from the Xxxxx Efficacy Payment in accordance with Section 7.15 of
the Credit Agreement, hereby:
4.1 Jazzland. (a) Consent to, and waive any non-compliance with
Section 8.6 of the Credit Agreement resulting from, the Jazzland Sale for Net
Cash Proceeds in an amount less than 90% of the minimum Net Cash Proceeds set
forth on Schedule B-1 to Amendment No. 3 with respect to such Property and (b)
agree that no deposit was made or deemed made to the Disbursement Account or the
Reserve Account upon the closing of the Jazzland Sale; provided, that, (i) to
the extent the Company receives any cash proceeds (including, without
limitation, any proceeds from drawings under any letter of credit issued in
connection with the Jazzland Sale naming the Company or any Subsidiary as a
beneficiary) in connection with the Jazzland Sale (regardless of when received),
such cash proceeds shall be deposited directly on the date of receipt by the
Company or any Subsidiary in the Reserve Account to be held and disbursed in
accordance with Section 2.25 of the Credit Agreement, (ii) the aggregate amount
of Capital Expenditures incurred by the Company and its Subsidiaries in
connection with the Jazzland entertainment park (including, without limitation,
cost overruns) shall not exceed $122,000,000 and (iii) the cost overruns with
respect to the Jazzland entertainment park shall not exceed $12,000,000.
4.2 Proceeds Disbursement Request. Consent to the release by the
Agent of the Net Cash Proceeds to the Company on June 23, 2000 with respect to
the Proceeds Disbursement Request dated June 19, 2000.
4.3 Certain Waivers. Waive (i) the Default and Event of Default
resulting from the Sumitomo Facility Events and (ii) from the Amendment No. 4
Effective Date through July 31, 2000, the condition precedent to the release of
Net Cash Proceeds from the Disbursement Account and to the borrowing of
Liquidity Loans that no Default or Event of Default has occurred and is
continuing; provided, that (a) the aggregate amount released from the
Disbursement Account and borrowed under the Liquidity Subfacility from the
Amendment No. 4 Effective Date through July 31, 2000 shall not exceed $7,374,000
irrespective of whether a Default or Event of Default has occurred or is
continuing, (b) no Liquidity Loans may be borrowed under the Liquidity
Subfacility prior to the withdrawal by the Company of $7,374,000 from the
Disbursement Account in accordance with the terms of the Credit Agreement, (c)
the Company may withdraw from the Haripur Reserve in accordance with Section
2.25(h) of the Credit Agreement the sum of $16,815,986.00 to fund the capital
contribution by the Company or a Subsidiary of the Company in connection with
the repayment of the outstanding balance due and payable under the Xxxxxx
Facility Agreement, and (d) the Company may withdraw from the Balaji Reserve in
accordance with Section 2.25(g) of the Credit Agreement up to $2,500,000 to fund
the portion of the Balaji Investment required to be paid by the Company or a
Subsidiary of the Company on or before July 31, 2000. The Company expressly
acknowledges and agrees that as of the Amendment No. 4 Effective Date, the
amount permitted and available to be disbursed from the Disbursement Account
(after giving effect to the Balaji Reserve and the Haripur Reserve) is not less
than $7,374,000.
5. MISCELLANEOUS.
5.1 This Amendment No. 4 may be executed by facsimile and in any
number of counterparts, each of which shall be an original and all of which
shall constitute one agreement. It shall not be necessary in making proof of
this Amendment No. 4 to produce or account for more than one counterpart signed
by the party to be charged.
5.2 This Amendment No. 4 is being delivered in and is intended to be
performed in the State of New York and shall be construed and enforceable in
accordance with, and be governed by, the internal laws of the State of New York
without regard to principles of conflict of laws.
5.3 The Company acknowledges and agrees that if and to the extent it
maintains any defenses to its obligations under the Credit Agreement and the
other Loan Documents arising through and including the date hereof, such
defenses are hereby waived and released as a specific condition to the
agreements of the Agent and the Lenders set forth herein, which waiver and
release are unconditional and without limitation.
The parties hereto have caused this Amendment No. 4 to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
XXXXX CORPORATION
By:
------------------------------
Title:
---------------------------
AMENDMENT NO. 4 - REVOLVING CREDIT AGREEMENT
--------------------------------------------
THE BANK OF NEW YORK,
Individually and as Agent
By:
------------------------------
Title:
---------------------------
BANK OF AMERICA, N.A.
By:
------------------------------
Title:
---------------------------
THE CHASE MANHATTAN BANK
By:
------------------------------
Title:
---------------------------
DEUTSCHE BANK AG
New York and/or Cayman
Islands Branches
By:
------------------------------
Title:
---------------------------
By:
------------------------------
Title:
---------------------------
AMENDMENT NO. 4 - REVOLVING CREDIT AGREEMENT
--------------------------------------------
UBS AG
Stamford Branch
By:
------------------------------
Title:
---------------------------
By:
------------------------------
Title:
---------------------------
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By:
------------------------------
Title:
---------------------------
By:
------------------------------
Title:
---------------------------
THE BANK OF NOVA SCOTIA
By:
------------------------------
Title:
---------------------------
AMENDMENT NO. 4 - REVOLVING CREDIT AGREEMENT
--------------------------------------------
CREDIT LYONNAIS NEW YORK
BRANCH
By:
------------------------------
Title:
---------------------------
By:
------------------------------
Title:
---------------------------
FLEET NATIONAL BANK
By:
------------------------------
Title:
---------------------------
FIRST UNION NATIONAL BANK
By:
------------------------------
Title:
---------------------------
SCHEDULE A
TO AMENDMENT NO. 4 TO CREDIT AGREEMENT
Projections
-----------
SCHEDULE B
TO AMENDMENT NO. 4 TO CREDIT AGREEMENT
Reconciliation
--------------
EXHIBIT A
TO AMENDMENT NO. 4 TO CREDIT AGREEMENT
Form of Proceeds Disbursement Request
-------------------------------------
__________, 2000
The Bank of New York
Agency Function Administration
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: _________________
Re: Credit Agreement dated as of June 30, 1997 by and among Xxxxx
Corporation, the Lenders party thereto and The Bank of New
York, as Agent, as Amended
--------------------------
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of June 30, 1997 by
and among Xxxxx Corporation (the "Company"), the Lenders party thereto and The
Bank of New York, as Agent (the "Agent"), as amended by Amendment No. 1 to
Credit Agreement dated as of August 18, 1999, Amendment No. 2 to Credit
Agreement dated as of December 20, 1999, Amendment No. 3 to Credit Agreement
dated as of March 31, 2000 and Amendment No. 4 to Credit Agreement dated as of
June __, 2000 (as amended, and as it may from time to time be further amended,
modified, supplemented or replaced from time to time, the "Credit Agreement").
Terms not otherwise defined herein shall have the respective meanings ascribed
thereto in the Credit Agreement.
1. Pursuant to paragraph [2.25(c)]/[2.25(g)]/[2.25(h)] of the Credit
Agreement, the Company hereby requests that the Agent release to the Company on
_________, 2000 Net Cash Proceeds in the amount of $__________ (the "Requested
Proceeds") from the [Disbursement Account]/[Balaji Reserve established under the
Disbursement Account]/[Haripur Reserve established under the Disbursement
Account].
2. The Requested Proceeds shall be used by the Company [to fund its
obligations in connection with the Balaji Project]/[to fund its obligations in
connection with the Haripur Project] as follows:
3. The Company has not previously requested a release of Net Cash
Proceeds from the Disbursement Account during the current calendar week.
4. The amount of the Balaji Reserve as of the date hereof, after giving
effect to the receipt by the Company of the amounts requested in this Proceeds
Disbursement Request is $_________.
5. The Company certifies, represents and warrants that on the date
hereof, and after giving effect to the release of the Requested Proceeds:
(a) There exists no Default or Event of Default.
(b) The Requested Proceeds shall be used [in accordance with
and for the purposes and in the amounts set forth in the Projections, except as
otherwise permitted by the Credit Agreement]/[in connection with the Balaji
Project to fund obligations of the Company or any of its Subsidiaries under the
instruments, documents and agreements governing the Balaji Investment as in
effect on the Amendment No. 4 Effective Date/to secure reimbursement obligation
of the Company in respect of the Balaji L/C]/[in connection with the Haripur
Project to fund obligations of the Company or any of its Subsidiaries under the
Xxxxxx Facility Agreement/to secure reimbursement obligations of the Company in
respect of the Haripur L/C].
[(c) After giving effect to the application of the Requested
Proceeds, the aggregate amount of Investments, Acquisitions and Capital
Expenditures made or committed to be made by the Company and its Subsidiaries in
connection with the Balaji Project does not exceed $37,500,000.]/[After giving
effect to the application of the Requested Proceeds, the aggregate amount of
funds disbursed from the Disbursement Account applied in connection with the
Haripur Project does not exceed $20,346,639.50.]
6. Including the amounts requested in this Proceeds Disbursement
Request, the aggregate amount of the Net Cash Proceeds received by the Company
as of the date hereof (including, without limitation, Net Cash Proceeds received
in respect of the Balaji Reserve) is $_______________.
The Company has caused this certificate to be executed by its duly
authorized officer on the date first-above written.
XXXXX CORPORATION
By:
-----------------------------------
Title: Chief Financial Officer
