EXHIBIT 10.2
EXECUTION COPY
AMENDMENT NO. 3
TO LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 3, dated as of July 31, 2003 (this "Amendment"),
to the Loan and Security Agreement, dated as of August 15, 2002, as amended by
Amendment No. 1 to Loan and Security Agreement, dated as of January 22, 2003,
and Amendment No. 2 to Loan and Security Agreement, dated as of February 24,
2003 (as so amended, the "Loan Agreement"), by and among, on the one hand, the
lenders party thereto (each a "Lender" and collectively, the "Lenders"), XXXXX
FARGO FOOTHILL, INC., a California corporation (f/k/a Foothill Capital
Corporation), as the arranger and administrative agent for the Lenders (the
"Agent"), and, on the other hand, XXXXXX XXXXXXX FUNDING II LLC, a Delaware
limited liability company (the "Borrower"), as successor by assignment to Xxxxxx
Xxxxxxx Funding LLC, a Delaware limited liability company (the "Original
Borrower"), pursuant to the Assignment and Assumption (Loan Agreement) referred
to below.
WHEREAS, the Original Borrower, the Agent and the Lenders are
parties to the Loan Agreement;
WHEREAS, on the date hereof, pursuant to the Assignment and
Assumption (Loan Agreement) dated as of the date hereof, by and among the
Original Borrower, as assignor, the Borrower, as assignee, the Lenders and the
Agent (the "Assignment and Assumption Agreement (Loan Agreement)"), the Original
Borrower has assigned to the Borrower, and the Borrower has assumed, all of the
Original Borrower's right, title and interest in, to, and under the Loan
Agreement as of the date set forth therein; and
WHEREAS, the Borrower, the Agent and the Lenders desire to
amend the Loan Agreement in accordance with the terms set forth herein;
NOW THEREFOR, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Definitions. Any capitalized term used herein and not
defined herein shall have the meaning assigned to it in the Loan Agreement.
2. Amendments. The Loan Agreement is hereby amended as
follows:
2.1. Preamble. The preamble to the Loan Agreement is
amended by deleting all of the words which follow the words "on the other hand,"
in the sixth and seventh lines of the preamble and substituting therefor the
words "XXXXXX XXXXXXX FUNDING II LLC, a Delaware limited liability company (the
"Borrower"), as successor by assignment to Xxxxxx Xxxxxxx Funding LLC, a
Delaware limited liability company (the "Original Borrower"), pursuant to the
Assignment and Assumption (Loan Agreement) (as hereinafter defined)."
2.2. Existing Definitions.
(a) The definition of the term "A/R Turnover
Period" in Section 1.1 of the Loan Agreement is hereby amended in its entirety
to read as follows:
"'A/R Turnover Period' means, as of the end
of any Fiscal Month, the number of days equal to the
product of (a) a fraction, the numerator of which
shall be the amount equal to the aggregate amount of
Accounts, excluding all Excluded Amounts, as of the
first day of such Fiscal Month, and the denominator
of which shall be the amount equal to the aggregate
amount of Collections with respect to Accounts,
excluding all Excluded Amounts, during such Fiscal
Month, times (b) the actual number of days in such
Fiscal Month.
(b) The definition of the term "Contract
Trial Balance" in Section 1.1 of the Loan Agreement is amended in its entirety
to read as follows:
"'Contract Trial Balance' means a monthly
report, detailing all open Contracts by contract
price, amounts billed (identified as progress,
retention, and advance xxxxxxxx), and the remaining
unbilled portion of each Contract, together with a
report that reflects any changes in earned revenue to
date, final estimated profits and actual costs to
date."
(c) The definition of the term "Delinquency
Ratio" in Section 1.1 of the Loan Agreement is amended in its entirety to read
as follows:
"'Delinquency Ratio' means, as of any date,
the ratio, expressed as a percentage, of (a) the
aggregate amount of all Accounts, excluding all
Excluded Amounts, as to which payment, or any part
thereof, remains unpaid for more than 90 days from
the original invoice date, to (b) the aggregate
amount of all Accounts, excluding all Excluded
Amounts."
(d) The definition of the term "Dilution" in
Section 1.1 of the Loan Agreement is amended by inserting, immediately following
each appearance of the word "Accounts" in clauses (a) and (b) of such
definition, the words ", exclusive of all Excluded Amounts,".
(e) The definition of the term "Eligible
Accounts" in Section 1.1 of the Loan Agreement is amended as follows:
(i) by deleting the introductory
paragraph to such definition in its entirety and
substituting therefor the following:
"'Eligible Accounts' means those Subject
Accounts acquired from time to time by Borrower from
any Originator pursuant to the Purchase Agreement
that comply with each of the representations and
warranties respecting Eligible Accounts made by
Borrower in the Loan Documents, and that are not
excluded as ineligible by virtue of one or more of
the criteria set forth below; provided, however, that
such criteria may be fixed and revised from time to
time by Agent in Agent's Permitted Discretion to
address the results of any audit performed by Agent
from time to time after the Closing Date.
Notwithstanding the proviso to the preceding
sentence, any Eligible Accounts existing on the
effective date of any such revision which, if not for
this sentence, would cease to be Eligible Accounts on
such date shall continue to be deemed Eligible
Accounts hereunder, subject to the other terms and
conditions set forth herein. Eligible Accounts shall
not include the following:";
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(ii) by deleting clauses (b), (n) and
(o) of such definition in their respective entireties and
substituting therefor, in each case, the words "[Intentionally
Omitted]";
(iii) by deleting the words "50%
complete" at the end of clause (v) of such definition and
substituting therefor the words "20% complete (percentage
complete to be determined as a percentage of (A) total
xxxxxxxx less advance xxxxxxxx, divided by (B) the contract
price),";
(iv) by deleting the word "or" at the
end of clause (x) of such definition, renumbering clause (y)
of such definition as clause (z) and inserting a new clause
(y) into such definition, to read as follows:
"(y) Accounts representing Pass-Through
Receipts, or any other Accounts, a portion of which
includes Pass-Through Receipts, or"; and
(v) by inserting a new paragraph at the
end of such definition, to read as follows:
"Notwithstanding the foregoing, at the
request of Borrower, the Agent and the Lenders may,
in their sole discretion, designate as an Eligible
Account any Subject Account (i) which would otherwise
be deemed ineligible pursuant to this definition,
provided that such Account is fully bonded, is
supported by 100% cash collateral, and complies with
such other terms as the Agent may reasonably require,
or (ii) which would be deemed ineligible solely
pursuant to clause (v) of this definition. Any such
designation by the Agent shall be in writing and
shall be effective only with respect to the Subject
Account specified in such writing. Prior to the
execution by the Agent and the Lenders of any such
writing, such Subject Account shall not be deemed an
Eligible Account for any purpose under the Loan
Documents."
(f) The definition of the term "Loan
Documents" in Section 1.1 of the Loan Agreement is amended by inserting,
immediately following the words "this Agreement," in the first line of such
definition, the words "the Assignment and Assumption (Loan Agreement),".
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(g) The definition of the term "Net Cash
Proceeds" in Section 1.1 of the Loan Agreement is amended by replacing the
parenthetical "(including any cash proceeds received by way of deferred payment
(other than in respect of interest)" with the following language: "(including
(i) any cash proceeds received by way of deferred payment (other than in respect
of interest), (ii) any cash retained by FW LLC or any of its Subsidiaries
related to any Asset Sale after the closing of such Asset Sale and (iii) any
cash distributed to FW LLC or any of its Subsidiaries in connection with the
closing of any Asset Sale)".
(h) The definition of the term "Senior Debt"
in Section 1.1 of the Loan Agreement is amended by replacing the word "and" at
the end of clause (f) thereof with a comma and adding a new clause (h) and a new
clause (i) at the end of such definition, to read as follows:
", (h) all Non-Recourse Project Debt and any
permitted guarantees in respect thereof and (i) up to
$15,000,000 of Indebtedness in respect of the Capital
Lease for a building in Finland."
(i) The definition of the term "Servicer" in
Section 1.1 of the Loan Agreement is amended in its entirety to read as follows:
"'Servicer' means Xxxxxx Xxxxxxx Inc., a
Delaware corporation, or any successor thereto."
(j) The definition of the term "Subordinated
Notes" in Section 1.1 of the Loan Agreement is amended by deleting the words
"each dated the date hereof" in the first and second lines of such definition
and substituting therefor the words "each dated the Third Amendment Date".
(k) The definition of the term "Testing
Period" in Section 1.1 of the Loan Agreement is amended by deleting the words
"fiscal month" at the beginning of the third line of such definition and
substituting therefor the words "Fiscal Month".
(l) The definition of the term "Transaction
Documents" in Section 1.1 of the Loan Agreement is amended by deleting the words
"and the" in the second line of such definition and substituting therefor the
words ", the Assignment and Assumption (Purchase Agreement), the Receivables
Transfer Agreement, the Reporting Agreement and each".
2.3. New Definitions.
(a) The definition of the new term
"Assignment and Assumption (Loan Agreement")" is inserted in Section 1.1 of the
Loan Agreement, to read as follows:
"'Assignment and Assumption (Loan
Agreement)' means the Assignment and Assumption
Agreement (Loan Agreement) dated as of the Third
Amendment Date, by and among the Original Borrower,
as assignor, the Borrower, as assignee, the Lenders
and the Agent."
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(b) The definition of the new term
"Assignment and Assumption (Purchase Agreement")" is inserted in Section 1.1 of
the Loan Agreement, to read as follows:
"'Assignment and Assumption (Purchase
Agreement)' means the Assignment and Assumption
Agreement (Purchase Agreement) dated as of the Third
Amendment Date, by and among the Original Borrower,
as assignor, the Borrower, as assignee, the Original
Servicer, the Servicer and the Originators."
(c) The definition of the new term "Excluded
Amounts" is inserted in Section 1.1 of the Loan Agreement, to read as follows:
"'Excluded Amounts' means, with respect to
an Account, or Collections made in respect thereof
(i) (A) in the case of the use of such term in the
definitions of "A/R Turnover Period" and "Delinquency
Rate" and in Section 7.20(a)(i), the amount of such
Account or such Collections to the extent that such
Account is set forth in Schedule E-1, or (B) in the
case of the use of such term in the definition of
"Dilution", the amount of such Account or such
Collections to the extent that such Account is set
forth in Schedule E-2, and (ii) any portion of such
Account or such Collections constituting Retention
Amounts."
(d) The definition of the new term "Exit
Funding Agreement" is inserted in Section 1.1 of the Loan Agreement, to read as
follows:
"'Exit Funding Agreement' means that certain
Exit Funding Agreement dated as of October 15, 1999,
by and between FW LLC (as successor-in-interest to
Xxxxxx Xxxxxxx Corporation) and SunTrust Bank,
Central Florida, National Association related to the
restructuring of certain indebtedness originally
incurred to finance a portion of the costs of
constructing the waste-to- energy facility located in
the Village of Xxxxxxx, Illinois."
(e) The definition of the new term "Fiscal
Month" is inserted in Section 1.1 of the Loan Agreement, to read as follows:
"'Fiscal Month' means each fiscal month of
Borrower, as described in Schedule F-1."
(f) The definition of the new term
"Non-Recourse Project Debt" is inserted in Section 1.1 of the Loan Agreement, to
read as follows:
"'Non-Recourse Project Debt' means
Indebtedness of any Special Purpose Subsidiary that
is without recourse to, or secured by any Lien on any
property or assets of, any other Person other than
(i) recourse in the nature of a guaranty of
completion or performance of an obligation which does
not itself constitute Indebtedness, (ii) recourse
against FW LLC under the Exit Funding Agreement and
(iii) Liens on the capital stock of such Special
Purpose Subsidiary."
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(g) The definition of the new term "Original
Borrower" is inserted in Section 1.1 of the Loan Agreement, to read as follows:
"'Original Borrower' has the meaning set
forth in the preamble to this Agreement."
(h) The definition of the new term "Original
Servicer" is inserted in Section 1.1 of the Loan Agreement, to read as follows:
"'Original Servicer' means Xxxxxx Xxxxxxx
Capital & Finance Corporation, a Delaware
corporation."
(i) The definition of the new term
"Pass-Through Receipts" is inserted in Section 1.1 of the Loan Agreement, to
read as follows:
"'Pass-Through Receipts' has the meaning set
forth in Section 2.7(a)."
(j) The definition of the new term
"Receivables Repurchase Agreement" is inserted in Section 1.1 of the Loan
Agreement, to read as follows:
"'Receivables Transfer Agreement' means the
Receivables Repurchase Agreement dated as of the
Third Amendment Date, by and among the Original
Borrower, the Borrower, the Originators and the
Servicer.
(k) The definition of the new term
"Reporting Agreement" is inserted in Section 1.1 of the Loan Agreement to read
as follows:
"'Reporting Agreement' means the letter
agreement dated as of the Third Amendment Date, among
the Agent, the Servicer, the Borrower and the
Originators."
(l) The definition of the new term
"Retention Amount" is inserted in Section 1.1 of the Loan Agreement, to read
as follows:
"'Retention Amount' means the amount
retained by an Account Debtor on a Contract, such
amount to be paid or released upon completion of the
underlying project and acceptance of the project by
the Account Debtor."
(m) The definition of the new term
"Specified Accounts" is inserted in Section 1.1 of the Loan Agreement, to read
as follows:
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"'Specified Accounts' means Eligible
Accounts that meet any of the following criteria:
(a) Accounts owed by an Account Debtor (or
its Affiliates) where 50% or more of all Accounts
owed by that Account Debtor (or its Affiliates) are
deemed ineligible under clause (a) of the definition
of "Eligible Accounts",
(b) Accounts with respect to which the
Account Debtor is a creditor of any Company, has or
has asserted a right of setoff, has disputed its
liability, or has made any claim with respect to its
obligation to pay the Account, to the extent of such
claim, right of setoff, or dispute, and
(c) Accounts with respect to an Account
Debtor whose total obligations owing to Borrower
exceed 25% of all Eligible Accounts, to the extent of
the obligations owing by such Account Debtor in
excess of such percentage.
In addition, in the event that the Agent,
exercising its Permitted Discretion, fixes and
revises the criteria set forth in the definition of
"Eligible Accounts" in this Section 1.1 to address
the results of any audit performed by Agent from time
to time after the Closing Date, then any Eligible
Accounts existing on the date of such revision which,
if not for the second sentence of the definition of
"Eligible Accounts", would cease to be Eligible
Accounts as a result of such revisions shall
constitute Specified Accounts for the purpose of this
Agreement."
(n) The definition of the new term
"Specified Reserve Amount" is inserted into Section 1.1 of the Loan Agreement,
to read as follows:
"'Specified Reserve Amount' means, as of any
date, an amount equal to 85% of the sum of (i) the
aggregate amount of all Specified Accounts on such
date and (ii) the aggregate amount of all customer
deposits and unapplied cash remitted by any
applicable Account Debtor to the extent such customer
deposits and unapplied cash are included in the
amount of Eligible Accounts."
(o) The definition of the new term "Third
Amendment Date" is inserted into Section 1.1 of the Loan Agreement, to read as
follows:
"'Third Amendment Date' means July 31,
2003."
2.4. Borrowing Base. Section 2.1(a) of the Loan Agreement
is amended by renumbering clause (y) thereof as clause (z) and inserting the
following new clause (y), to read as follows:
"(y) the Specified Reserve Amount on such
date, minus"
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2.5. Cash Management. Section 2.7(a) of the Loan Agreement
is amended by inserting a new paragraph at the end of such subsection, to read
as follows:
"Notwithstanding the foregoing, Collections
to be paid to subcontractors for goods and/or
services that, pursuant to the terms of any
commercial contract between an Originator and its
clients, such Originator pays such subcontractor (on
behalf of, and as agent for, such client) directly
from the clients' funds ("Pass-Through Receipts")
shall not be deposited in any Cash Management
Account. All Pass-Through Receipts shall be
identified as such and invoiced separately from any
other Accounts. Borrower shall deliver to Agent a
weekly report, in form and substance satisfactory to
the Agent, identifying all Pass-Through Receipts, and
demonstrating that such Pass-Through Receipts have
not been included in the Borrowing Base. Each such
report shall include a certification by Borrower that
none of the Eligible Accounts includes any
Pass-Through Receipts."
2.6. Collateral Reporting. Section 6.2 of the Loan
Agreement is amended as follows:
(a) clause (a) of such Section is renumbered
as clause (b) and is moved from opposite the word "Daily" to opposite the word
"Weekly";
(b) clause (b) of such Section is renumbered
as clause (a);
(c) clause (c) of such Section is amended to
read as follows:
"(c) (i) a detailed calculation of Collections
with respect to Accounts for the prior week,
and (ii) the report required under Section
2.7(a) regarding Pass-Through Receipts,";
and
(d) the parenthetical in the first column
following the word "Weekly" is amended by inserting after the word "Tuesday" at
the end of such parenthetical the words ", except with respect to item (e),
which shall be delivered in accordance with Section 2.1 of the Purchase
Agreement".
2.7. Affirmative Covenants.
(a) Section 6.3(b) of the Loan Agreement is
amended in its entirety to read as follows:
"(b) (i) as and when required under the
Guaranty, the statements and certificates required
pursuant to Section 7(b) thereof,
(ii) on a quarterly basis, within 15 days of
the end of each fiscal quarter of Borrower, a
certificate of Borrower and Servicer certifying as to
Borrower's compliance with the covenants set forth in
Section 6.6,
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(iii) if so required by Agent in its
discretion for any fiscal year of Borrower (by notice
delivered to Borrower not later than 15 days
following the end of such fiscal year), as soon as
available, but in any event within 90 days after the
end of such fiscal year, financial statements of
Borrower for such fiscal year, audited by independent
certified public accountants retained by either Agent
or Borrower, in each case reasonably acceptable to
the other party, and certified, without any
qualifications (including, without limitation, (x)
any going concern or like qualification or exception
(except to the extent such qualification or exception
results solely from the failure of any of the
Originators to qualify as a going concern) or (y) any
qualification as to the scope of such audit), by such
accountants to have been prepared in accordance with
GAAP (such audited financial statements to include a
balance sheet, income statement, and statement of
cash flow and, if prepared, such accountants' letter
to management), and
(iv) if so required by the Agent in its
discretion, at any time (but no more often than once
during any fiscal year of Borrower), a certificate
from independent certified public accountants or
other third-party consultants retained by either
Agent or Borrower, in each case reasonably acceptable
to the other party, addressed to Agent and the
Lenders stating that such accountants or consultants
have reviewed the operations and books and records of
the Borrower and other relevant information
concerning the Borrower and are not aware of the
existence of any Default or Event of Default under
Section 6.6 (i), (j), (k), (l) and (m), or such other
provisions of Section 6.6. as Agent may reasonably
request,
The fees and expenses of any accountants or
other consultants retained by Agent pursuant to
clauses (iii) or (iv) above shall be paid by Borrower
and shall constitute Lender Group Expenses, provided
that such fees and expenses shall not exceed $100,000
in any fiscal year."
2.8. Negative Covenants.
(a) Section 7.11 of the Loan Agreement is
amended by deleting the words "not less than $5,000,000" at the end of clause
(b) of the proviso to such Section and substituting therefor the words "not less
than $2,000,000".
(b) Section 7.13 of the Loan Agreement is
amended by deleting the words "not less than $5,000,000" at the end of clause
(i)(A)(y) of the proviso to such Section and substituting therefor the words
"not less than $2,000,000".
2.9. Financial Covenants.
(a) Section 7.20(a)(i) of the Loan Agreement
is amended in its entirety to read as follows:
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"(i) Minimum Collections.
(A) As of the end of any week, the average
amount of the weekly Collections (excluding (x) any
Pass-Through Receipts and (y) any Excluded Amounts
other than Retention Amounts) with respect to
Borrower's Accounts during the Testing Period ending
at the end of such week to be less than 40% of the
Revolver Usage as of the end of such week; and
(B) as of the end of any two-week period,
the average amount of the weekly Collections
(excluding (x) any Pass-Through Receipts and (y) any
Excluded Amounts other than Retention Amounts) with
respect to Borrower's Accounts during such two-week
period to be less than $5,000,000;".
(b) Section 7.20(b)(i) of the Loan Agreement
is amended in its entirety to read as follows:
"(i) Minimum EBITDA. On and after March 31,
2003, Consolidated Adjusted EBITDA for any fiscal
period set forth below to be less than the applicable
amount set forth below under the heading "Minimum
Amount":
Fiscal Period Minimum Amount Floor Amount
------------- -------------- ------------
Four Fiscal Quarters ended closest to $75,304,000 $62,846,000
3/31/03
Four Fiscal Quarters ended closest to $65,005,000 $65,005,000
6/30/03
Four Fiscal Quarters ended closest to $62,409,000 $62,409,000
9/30/03
Four Fiscal Quarters ended closest to $65,096,000 $65,096,000
12/31/03
Four Fiscal Quarters ended closest to $71,637,000 $71,637,000
3/31/04
Four Fiscal Quarters ended closest to $78,801,000 $78,801,000
6/30/04
Four Fiscal Quarters ended closest to $77,351,000 $85,531,000
9/30/04
Four Fiscal Quarters ended closest to $75,598,000 $93,043,000
12/31/04
Four Fiscal Quarters ended closest to $78,844,000 $94,173,000 "
3/31/05
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(c) Section 7.20(b)(ii) of the Loan
Agreement is amended in its entirety to read as follows:
"(ii) Senior Debt Ratio. From and after
March 31, 2003, the Senior Debt Ratio, at any date
during any period set forth below, to be more than
the applicable ratio set forth below opposite such
period under the heading "Maximum Ratio:
Fiscal Period Maximum Ratio Ceiling Amount
------------- ------------- --------------
The last day of the Fiscal Quarter 5.55 7.80
ended closest to 3/31/03 through the
day before the last day of the Fiscal
Quarter ended closest to 6/30/03
The last day of the Fiscal Quarter 7.05 7.05
ended closest to 6/30/03 through the
day before the last day of the Fiscal
Quarter ended closest to 9/30/03
The last day of the Fiscal Quarter 7.35 7.35
ended closest to 9/30/03 through the
day before the last day of the Fiscal
Quarter ended closest to 12/31/03
The last day of the Fiscal Quarter 7.00 7.00
ended closest to 12/31/03 through the
day before the last day of the Fiscal
Quarter ended closest to 3/31/04
The last day of the Fiscal Quarter 6.40 6.40
ended closest to 3/31/04 through the
day before the last day of the Fiscal
Quarter ended closest to 6/30/04
The last day of the Fiscal Quarter 5.80 5.80
ended closest to 6/30/04 through the
day before the last day of the Fiscal
Quarter ended closest to 9/30/04
The last day of the Fiscal Quarter 5.90 5.90
ended closest to 9/30/04 through the
day before the last day of the Fiscal
Quarter ended closest to 12/31/04
The last day of the Fiscal Quarter 6.05 6.05
ended closest to 12/31/04 through the
day before the last day of the Fiscal
Quarter ended closest to 3/31/05
The last day of the Fiscal Quarter 5.85 5.85"
ended closest to 3/31/05 through the
day before the last day of the Fiscal
Quarter ended closest to 6/30/05
2.10. Events of Default.
(a) Section 8.15 of the Loan Agreement is
amended by deleting the words "three (3) Business Days" at the end of such
Section and substituting therefor the words "five (5) Business Days".
(b) The paragraph immediately following
Section 8.15 of the Loan Agreement is amended by deleting the words "not less
than $5,000,000" in clause (b) of the proviso to such paragraph and substituting
therefor the words "not less than $2,000,000".
2.11. Schedules and Exhibits. (a) A new Schedule E-1, a new
Schedule E-2, a new Schedule F-1, a new Schedule 2.7(a), a new Schedule 5.3, a
new Schedule 5.4(b), a new Schedule 5.6, a new Schedule 5.7, and a new Schedule
5.14, in the form attached hereto as Annex I, Annex II, Annex III, Annex IV,
Annex V, Annex VI, Annex VII, Annex VIII, and Annex IX respectively, are hereby
added to the Loan Agreement.
(b) A new Exhibit A-1, a new Exhibit B-1, a
new Exhibit C-1, a new Exhibit C-2 and a new Exhibit C-3 in the form attached
hereto as Annex X, Annex XI, Annex XII, Annex XIII and Annex XIV, respectively,
are hereby added to the Loan Agreement..
3. Conditions. The effectiveness of this Amendment is
subject to the fulfillment, in a manner satisfactory to the Agent, of each of
the following conditions precedent (the date such conditions are fulfilled or
waived by the Lenders is hereafter referred to as the "Amendment Effective
Date"):
(a) The representations and warranties
contained herein, in Section 5 of the Loan Agreement and in each other Loan
Document and certificate or other writing delivered to the Agent or any Lender
pursuant hereto on or prior to the Amendment Effective Date shall be correct on
and as of the Amendment Effective Date as though made on and as of such date,
except to the extent that such representations and warranties expressly relate
solely to an earlier date (in which case such representations and warranties
shall be true and correct on and as of such date).
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(b) No Default or Event of Default shall
have occurred and be continuing on the Amendment Effective Date, or result from
this Amendment becoming effective in accordance with its terms.
(c) The Agent shall have received the
Amendment Fee (as hereinafter defined) in immediately available funds.
(d) The Agent and the Lenders shall have
executed this Amendment and received a counterpart of this Amendment, which
bears the signature of the Borrower.
(e) The Guarantor shall have executed and
delivered to the Agent an Acknowledgment and Consent in the form attached hereto
as Exhibit A.
(f) The Agent shall have received a fully
executed Assignment and Assumption (Loan Agreement), in form and substance
satisfactory to the Lenders.
(g) The Agent shall have received a fully
executed Amendment to the Purchase Agreement, in form and substance satisfactory
to the Lenders (the "Purchase Agreement Amendment").
(h) Each of the conditions precedent to the
effectiveness of the Purchase Agreement Amendment shall have been satisfied or
waived by the Lenders and the Purchase Agreement Amendment shall become
effective concurrently with the effectiveness of this Amendment.
(i) The Borrower shall have authorized the
Agent to submit for filing a UCC Financing Statement naming the Borrower as
debtor and the Agent as secured party, and a corresponding amendment to the
original UCC Financing Statement filed against the Original Borrower.
(j) All appropriate changes shall have been
made to the Cash Management Accounts to reflect the assignment of such accounts
by the Original Borrower to the Borrower, and all necessary Cash Management
Agreements shall have been entered into with respect thereto.
(k) The Agent shall have received one or
more opinions of Borrower's counsel addressed to the Agent and the Lenders, and
in form and substance satisfactory to the Agent, with respect to such matters as
the Agent may reasonably request.
(l) All legal matters incident to this
Amendment shall be satisfactory to the Agent, the Lenders and their counsel.
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(m) The Agent, the Lenders and their counsel
shall have received such other documents (including, but not limited to,
resolutions, officer's certificates and other corporate documents) as any such
Person may reasonably request.
4. Amendment Fee. The Borrower hereby agrees that, in
consideration of the willingness of the Agent and the Lenders to enter into this
Amendment, the Borrower shall pay to the Agent, for the benefit of the Lenders,
a fee in the amount of $300,000 in immediately available funds (the "Amendment
Fee"). The Amendment Fee (i) shall be fully earned by the Lenders and due and
payable upon the execution by the Borrower of this Amendment and (ii) shall be
non-refundable.
5. Waiver and Consent. In order to effectuate the
transactions contemplated by the Assignment and Assumption (Purchase Agreement)
and the Purchase Agreement Amendment, on the date hereof, the Original Borrower,
the Originators and the Borrower will carry out the Transfers (as defined in
Section 4 of the Purchase Agreement Amendment). The Agent and the Lenders hereby
consent to the Transfers and waive any Event of Default which would otherwise
occur under Section 8.2 or 8.9 of the Loan Agreement as a result of a breach of
Section 7.4, 7.8, 7.11 or 7.14 of the Loan Agreement by reason of the Transfers.
6. Representations and Warranties. The Borrower hereby
represents and warrants to the Agent and the Lenders as follows:
(a) The representations and warranties
herein, in Section 5 of the Loan Agreement, in the Assignment and Assumption
(Loan Agreement) and in each other Loan Document and certificate or other
writing delivered to the Agent or any Lender pursuant hereto on or prior to the
Amendment Effective Date are correct on and as of the Amendment Effective Date
as though made on and as of such date, except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties are true and correct on and as of
such date).
(b) No Default or Event of Default has
occurred and is continuing or would result from this Amendment or the Assignment
and Assumption (Loan Agreement) becoming effective in accordance with its terms.
(c) The Borrower (i) is duly organized and
existing and in good standing under the laws of the jurisdiction of its
organization, (ii) has all requisite power and authority to execute, deliver and
perform this Amendment and the Assignment and Assumption (Loan Agreement), and
to perform the Loan Agreement, as amended hereby, and (iii) is duly qualified to
do business in each jurisdiction in which the character of the properties owned
or leased by it or in which the transaction of its business makes such
qualification necessary except where the failure to be so qualified could not be
expected to have a Material Adverse Change.
(d) The execution, delivery and performance
by the Borrower of this Amendment and the Assignment and Assumption (Loan
Agreement), and the performance by the Borrower of the Loan Agreement, as
amended by this Amendment, (i) have been duly authorized by all necessary
corporate action, and (ii) do not and will not contravene the Borrower's
Governing Documents.
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(e) Except for the filing of the UCC
financing statements referenced in Section 3(i) above, the execution, delivery,
and performance by the Borrower of this Amendment and the Assignment and
Assumption (Loan Agreement), and the performance of the Loan Agreement, as
amended by this Amendment, do not and will not require any registration with,
consent, or approval of, or notice to, or other action with or by, any
Governmental Authority or other Person.
(f) This Amendment and the Assignment and
Assumption (Loan Agreement), when executed and delivered by the Borrower, and
the Loan Agreement, as amended by this Amendment, will be the legally valid and
binding obligations of the Borrower, enforceable against the Borrower in
accordance with their respective terms, except as enforcement may be limited by
equitable principles or by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or limiting creditors' rights generally.
7. Agreement. The Borrower hereby agrees that it shall
deliver to the Agent each of the reports required under Section 6.2 of the Loan
Agreement, as amended hereby, within sixty (60) days of the date hereof. The
Borrower agrees that until each of such reports has been delivered to the Agent
in accordance with such Section, the Lenders shall have no obligation to make
Advances to the Borrower.
8. Miscellaneous.
(a) Continued Effectiveness of the Loan
Agreement. Except as otherwise expressly provided herein, the Loan Agreement and
the other Loan Documents are, and shall continue to be, in full force and effect
and are hereby ratified and confirmed in all respects, except that on and after
the Amendment Effective Date (i) all references in the Loan Agreement to "this
Agreement", "hereto", "hereof", "hereunder" or words of like import referring to
the Loan Agreement shall mean the Loan Agreement as amended by this Amendment,
and (ii) all references in the other Loan Documents to the "Loan Agreement",
"thereto", "thereof", "thereunder" or words of like import referring to the Loan
Agreement shall mean the Loan Agreement as amended by this Amendment. Except as
expressly provided herein, the execution, delivery and effectiveness of this
Amendment shall not operate as an amendment of any right, power or remedy of the
Agent or the Lenders under the Loan Agreement or any other Loan Document, nor
constitute an amendment of any provision of the Loan Agreement or any other Loan
Document.
(b) Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which shall be deemed to be an original, but all
of which taken together shall constitute one and the same agreement.
(c) Headings. Section headings herein are
included for convenience of reference only and shall not constitute a part of
this Amendment for any other purpose.
(d) Governing Law. This Amendment shall be
governed by, and construed in accordance with, the law of the State of New York.
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(e) Costs and Expenses. The Borrower agrees
to pay on demand all reasonable fees, costs and expenses of the Agent in
connection with the preparation, execution and delivery of this Amendment and
any other related agreements, instruments and documents.
(f) Amendment as Loan Document. The Borrower
hereby acknowledges and agrees that this Amendment constitutes a "Loan Document"
under the Loan Agreement. Accordingly, it shall be an Event of Default under the
Loan Agreement if any representation or warranty made by the Borrower under or
in connection with this Amendment shall have been untrue, false or misleading in
any material respect when made.
(g) No Waiver. This Amendment is not a
waiver of, or consent to, any Default or Event of Default now existing or
hereafter arising under the Loan Agreement or any other Loan Document and the
Agent and the Lenders expressly reserve all of their rights and remedies under
the Loan Agreement and the other Loan Documents, under applicable law or
otherwise.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered as of the date first above written.
Borrower:
XXXXXX XXXXXXX FUNDING II LLC,
a Delaware limited liability company
By: /s/ Xxxx X. Xxxx
----------------------------------------------
Xxxx X. Xxxx
Title: Treasurer
Agent and Lenders:
XXXXX FARGO FOOTHILL, INC.,
a California corporation, as Agent and a Lender
By: /s/ Xxxxxx Xxxx
----------------------------------------------
Title: Vice President
ABLECO FINANCE LLC,
a Delaware limited liability company, as a Lender
By: /s/ Xxx X. Xxxxx
----------------------------------------------
Title: Senior Vice President
Exhibit A
ACKNOWLEDGMENT AND CONSENT
The undersigned, as Guarantor under the Guaranty (as defined
in the Loan Agreement referred to in Amendment No. 3 to Loan and Security
Agreement dated as of the date hereof (the "Amendment", all terms defined
therein being used herein as defined therein), to which this Acknowledgment and
Consent is attached), hereby (i) acknowledges and consents to the Amendment and
(ii) confirms and agrees that the Guaranty is, and shall continue to be, in full
force and effect and is hereby ratified and confirmed in all respects.
Dated: July 31, 2003
XXXXXX XXXXXXX LTD.,
a Bermuda limited company
By: /s/ Xxxx X. Xxxx
---------------------------------
Xxxx X. Xxxx
Title: Treasurer
Annex I
SCHEDULE E-1
Excluded Accounts
("A/R Turnover Period", "Delinquency Rate" and Section 7.20(a)(i))
Client Contract Number
Jacksonville Electric (JEA) 200761200
Raytheon Engineers (WGI-Red Oak) 200766800
NEPCO (Xxxxxxx) 200767800
PSEG Fossil LLC (Bergen) 200770600
Bechtel Power (Intergen No. America) 200774000 - Invoice nos.
126312, 128661, and
137480
PSEG Power LLC (Linden) 200774500
Bechtel Power-Mountainiew 210000400
Berrians I Gas -NRG 9210165300
Tribasa 1303806100
Annex II
SCHEDULE E-2
Excluded Accounts
("Dilution")
Client Contract Number
Jacksonville Electric (JEA) 200761200
PSEG Fossil LLC (Bergen) 200770600
Bechtel Power (Intergen No. America) 200774000 - Invoice nos.
126312, 128661, and
137480
PSEG Power LLC (Linden) 200774500
Berrians I Gas -NRG 9210165300
Annex III
SCHEDULE F-1
Fiscal Months
Annex IV
SCHEDULE 2.7(a)
Cash Management Bank
Annex V
SCHEDULE 5.3
Chief Executive Office, FEIN
Annex VI
Schedule 5.4.(b)
Capitalization of Borrower
Annex VII
Schedule 5.6
Litigation
Annex VIII
Schedule 5.7
No Material Adverse Change
Annex IX
Schedule 5.14
Demand Deposit Accounts of Borrower
Annex X
EXHIBIT A-1
Form of Assignment and Acceptance
Annex XI
EXHIBIT B-1
Form of Borrowing Base Certificate
Annex XII
EXHIBIT C-1
Form of Compliance Certificate - Borrower
Annex XIII
EXHIBIT C-2
Form of Compliance Certificate - Originator
Annex XIV
EXHIBIT C-3
Form of Compliance Certificate - Guarantor
