AMENDMENT NO. 3
Exhibit 10.38
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of June 20, 2006 among The Xxxx Group Inc. (the “Borrower”),
the subsidiaries of the Borrower listed on the signature pages hereto as “Guarantors” and BNP
Paribas, as administrative agent (in such capacity, the “Agent”) pursuant to authority
granted by the Required Lenders.
The Borrower, the “Guarantors” party thereto, the “Lenders” party thereto and the Agent are
parties to a Credit Agreement dated as of April 25, 2005 (as modified and supplemented and in
effect from time to time, the “Credit Agreement”), providing, subject to the terms and
conditions thereof, for extensions of credit (by means of loans and letters of credit) to be made
by said lenders to the Borrower in an aggregate principal or face amount not exceeding
$750,000,000.
The parties hereto wish to amend the Credit Agreement as hereinafter set forth and accordingly
hereby agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement are used herein as
defined therein.
Section 2. Amendments. Subject to the satisfaction of the conditions precedent
specified in Section 5 below, but effective as of the date hereof, the last sentence of Section
2.19.1 of the Credit Agreement shall be amended to read as follows:
“No Facility LC issued on or after the Effective Date shall have an expiry date later than
the fifth Business Day prior to the Facility Termination Date.”
Section 3. Representations and Warranties. The Borrower represents and warrants to
the Lenders that the representations and warranties set forth in Article V of the Credit Agreement
are true and correct on the date hereof as if made on and as of the date hereof (except to the
extent any such representation or warranty is stated to relate solely to an earlier date, in which
case such representation or warranty shall have been true and correct on and as of such earlier
date) and as if each reference in said Article V to “this Agreement” included reference to this
Amendment No. 3.
Section 4. Previously Issued Facility LCs. The letters of credit listed on Schedule
1 hereto shall be deemed to be Facility LCs duly issued under the Credit Agreement provided that
the terms and conditions thereof comply with the requirements of the Credit Agreement as hereby
amended.
Section 5. Conditions Precedent. The amendment set forth in Section 2 hereof and
the consent set forth in Section 4 hereof shall become effective, as of the date hereof, upon the
execution and delivery of counterparts of this Amendment No. 3 by the Borrower, the Guarantors and
the Agent pursuant to authority granted by the Required Lenders.
Section 6. Miscellaneous. Except as herein provided, the Credit Agreement and the
Security Agreement shall remain unchanged and in full force and effect. This Amendment No. 3 may
be executed in any number of counterparts, all of which taken together shall constitute one and the
same amendatory instrument and any of the parties hereto may execute this Amendment No. 3 by
signing any such counterpart. This Amendment No. 3 shall be governed by, and construed in
accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3 to be duly executed
and delivered as of the day and year first above written.
THE XXXX GROUP INC. |
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By: | ||||
Xxxxxx X. Xxxx | ||||
Executive Vice President and Chief Financial Officer |
GUARANTORS: WHIPPANY VENTURE I, L.L.C HYDRO POWER SOLUTIONS LLC |
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By: | ||||
Xxxxxx X. Xxxx | ||||
Executive Vice President | ||||
XXXX CONSTRUCTORS, INC. |
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By: | ||||
Xxxxxx Xxxxxxxxx | ||||
President | ||||
STONE & XXXXXXX MICHIGAN, INC. |
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By: | ||||
Xxxx X. Xxxxxxx | ||||
Vice President and Secretary | ||||
SO-XXXX GAS CO., LLC by its sole member, EMCON/OWT, Inc. |
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By: | ||||
Xxxxxx X. Xxxx | ||||
Executive Vice President, Assistant Treasurer and Assistant Chief Financial Officer |
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EMCON/OWT, INC. |
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By: | ||||
Xxxxxx X. Xxxx | ||||
Executive Vice President, Assistant Treasurer and Assistant Chief Financial Officer |
GUARANTORS (continued) AMERICAN PLASTIC PIPE AND SUPPLY, L.L.C. B.F. XXXX, INC. C.B.P. ENGINEERING CORP. EDS EQUIPMENT COMPANY, LLC EDS PUERTO RICO, INC. ENVIROGEN, INC. FIELD SERVICES, INC. LFG SPECIALTIES, L.L.C. MWR, INC. PROSPECT INDUSTRIES (HOLDINGS), INC. XXXX ALLOY PIPING PRODUCTS, INC. XXXX BENECO, INC. XXXX COASTAL, INC. XXXX CONNEX, INC. XXXX E & I INVESTMENT HOLDINGS, INC. XXXX E & I RUSSIA, INC. XXXX ENERGY DELIVERY SERVICES, INC. XXXX ENVIRONMENTAL, INC. XXXX ENVIRONMENTAL & INFRASTRUCTURE, INC. XXXX ENVIRONMENTAL INTERNATIONAL, INC. XXXX FABRICATORS, INC. XXXX FACILITIES, INC. XXXX FIELD SERVICES, INC. XXXX FT. XXXXXXX XXXX HOUSING, L.L.C. XXXX GLOBAL ENERGY SERVICES, INC. XXXX GRP OF CALIFORNIA XXXX INDUSTRIAL SUPPLY CO., INC. XXXX INFRASTRUCTURE, INC. XXXX INTELLECTUAL PROPERTY HOLDINGS, INC. XXXX INTERNATIONAL, INC. XXXX XX HOLDINGS, L.L.C. XXXX LITTLE ROCK HOUSING, L.L.C. XXXX LIQUID SOLUTIONS LLC XXXX MAINTENANCE, INC. XXXX POWER SERVICES GROUP, L.L.C. |
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By: | ||||
Xxxxxx X. Xxxx | ||||
Executive Vice President and Treasurer |
GUARANTORS (continued) XXXX WASTE SOLUTIONS, LLC |
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By: | ||||
Xxxxxx X. Xxxx | ||||
Executive Vice President and Chief Financial Officer |
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STONE & XXXXXXX — JSC MANAGEMENT CONSULTANTS, INC. |
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By: | ||||
Xxxxxx X. Xxxx | ||||
Executive Vice President, Senior Vice
President and Treasurer |
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BADGER® TECHNOLOGIES, L.L.C. BADGER® TECHNOLOGY HOLDINGS, X.XX. PIKE PROPERTIES I, INC. PIKE PROPERTIES II, INC. XXXX GLOBAL, L.L.C. XXXX TRANSMISSION & DISTRIBUTION SERVICES, INC. |
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By: | ||||
Xxxxxx X. Xxxx | ||||
Vice President and Treasurer | ||||
S C XXXXX, L.L.C. by its sole member, Stone & Xxxxxxx, Inc. |
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By: | ||||
Xxxxxx X. Xxxx | ||||
Executive Vice President and Treasurer |
GUARANTORS (continued) INTERNATIONAL CONSULTANTS, L.L.C. XXXX XXXXX HOUSING, L.L.C. XXXX CAPITAL INC. XXXX CAPITAL (NEVADA), INC. XXXX CENTCOM SERVICES, L.L.C. XXXX XXXXXXX HOUSING, L.L.C. XXXX HOME LOUISIANA, INC. XXXX MANAGED SERVICES, INC. XXXX MANAGEMENT SERVICES ONE, INC. XXXX XXXXXX CITY TERMINAL, INC. XXXX NAPTECH, INC. XXXX POWER SERVICES, INC. XXXX PROCESS AND INDUSTRIAL GROUP, INC. XXXX PROCESS FABRICATORS, INC. XXXX PROPERTY HOLDINGS, INC. XXXX SERVICES, L.L.C. XXXX SSS FABRICATORS, INC. XXXX SUNLAND FABRICATORS, INC. XXXX WORD INDUSTRIES FABRICATORS, INC. STONE & XXXXXXX ASIA, INC. STONE & XXXXXXX HOLDING ONE, INC. STONE & XXXXXXX HOLDING TWO, INC. STONE & XXXXXXX, INC. XXXXX & XXXXXXX INTERNATIONAL, INC. STONE & XXXXXXX INTERNATIONAL HOLDINGS, INC. STONE & WEBSTER MASSACHUSETTS, INC. STONE & XXXXXXX PROCESS TECHNOLOGY, INC. STONE & XXXXXXX MANAGEMENT CONSULTANTS, INC. STONE & XXXXXXX SERVICES, L.L.C. |
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By: | ||||
Xxxxxx X. Xxxx | ||||
Executive Vice President and Treasurer |
GUARANTORS (continued) STONE & XXXXXXX CONSTRUCTION, INC. |
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By: | ||||
Xxxxxx X. Xxxx | ||||
President and Executive Vice President | ||||
ARLINGTON AVENUE E VENTURE, LLC CAMDEN ROAD VENTURE, LLC GREAT SOUTHWEST PARKWAY VENTURE, LLC |
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By: | ||||
X.X. Xxxxxxxx, Xx. | ||||
President | ||||
STONE & XXXXXXX CONSTRUCTION SERVICES, L.L.C. |
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By: | ||||
Xxxxxx X. Xxxx | ||||
President and Executive Vice President | ||||
XXXX INTERNATIONAL MANAGEMENT SERVICES ONE, INC. XXXX INTERNATIONAL MANAGEMENT SERVICES TWO, INC. XXXX NORTHEAST HOUSING, L.L.C. XXXX NORTHWEST HOUSING, L.L.C. XXXX XXXXX & XXXXXXX PUERTO RICO, INC. |
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By: | ||||
Xxxxxx X. Xxxx | ||||
Vice President and Treasurer |
GUARANTORS (continued): LANDBANK PROPERTIES, L.L.C. |
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By: | ||||
X.X. Xxxxxxxx, Xx. | ||||
Chief Executive Officer and Chairman | ||||
XXXX ENVIRONMENTAL LIABILITY SOLUTIONS, L.L.C. |
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By: | ||||
X.X. Xxxxxxxx, Xx. | ||||
Chairman and Chief Executive Officer | ||||
THE LANDBANK GROUP, INC. |
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By: | ||||
X.X. Xxxxxxxx, Xx. | ||||
Chief Executive Officer and Chairman of the Board |
GUARANTORS (continued): BENICIA NORTH GATEWAY II, L.L.C. XXXXXXXX WETLANDS, L.L.C. XX XXXXXXX XX, L.L.C. JERNEE MILL ROAD, L.L.C. KATO ROAD II, L.L.C. XXX I, L.L.C. LANDBANK XXXXX, L.L.C. MILLSTONE RIVER WETLAND SERVICES, L.L.C. XXXXXXX VENTURE I, L.L.C. OTAY MESA VENTURES II, L.L.C. PLATTSBURG VENTURE, L.L.C. RARITAN VENTURE I, L.L.C. XXXX ALASKA, INC. XXXX AMERICAS, L.L.C. XXXX CALIFORNIA, L.L.C. XXXX CMS, INC. XXXX MEXICO, L.L.C. XXXX REMEDIATION SERVICES, L.L.C. |
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By: | ||||
X.X. Xxxxxxxx, Xx. | ||||
President | ||||
INTEGRATED SITE SOLUTIONS, L.L.C. by its sole member, Xxxx Environmental & Infrastructure, Inc. |
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By: | ||||
Xxxxxx X. Xxxx | ||||
Executive Vice President and Treasurer |
GUARANTORS (continued): NUCLEAR TECHNOLOGY SOLUTIONS, L.L.C. by its sole member, S C XXXXX, L.L.C. by its sole member, Stone & Xxxxxxx, Inc. |
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By: | ||||
Xxxxxx X. Xxxx | ||||
Executive Vice President and Treasurer | ||||
SELS ADMINISTRATIVE SERVICES, L.L.C. by its sole member, Xxxx Environmental Liability Solutions, L.L.C. |
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By: | ||||
X.X. Xxxxxxxx | ||||
Chairman and Chief Executive Officer |
BNP PARIBAS, as Agent |
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By: | ||||
Name: | ||||
Title: | ||||