EXHIBIT 10.14
CONFORMED COPY
AMENDMENT NO. 1 AND WAIVER
AMENDMENT No. 1 and WAIVER ("THIS AMENDMENT") dated as of January 28,
2002 relating to the Second Amended and Restated Revolving Credit Agreement
dated as of May 25, 2001 (as the same has heretofore been or may hereafter be
amended from time to time, the "CREDIT AGREEMENT") among XXXXXX XXXXXXX LLC,
XXXXXX XXXXXXX USA CORPORATION, XXXXXX XXXXXXX ENERGY INTERNATIONAL, XXXXXX
XXXXXXX ENERGY CORPORATION, the Guarantors signatory thereto, the Lenders
signatory thereto, Bank of America, N.A., as Administrative Agent, FIRST UNION
NATIONAL BANK, as Syndication Agent, and ABN AMRO BANK N.V., as Documentation
Agent, arranged by BANC OF AMERICA SECURITIES LLC, as Lead Arranger and Book
Manager, and ABN AMRO BANK N.V., FIRST UNION CAPITAL MARKETS, GREENWICH NATWEST
STRUCTURED FINANCE INC. and TORONTO DOMINION BANK, as Arrangers.
The parties hereto agree as follows:
SECTION 1. DEFINED TERMS; REFERENCES. (a) Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit Agreement
has the meaning assigned to such term in the Credit Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Credit Agreement shall, after this Amendment becomes effective,
refer to the Credit Agreement as amended hereby.
(b) The following additional terms have the following meanings:
"SPECIAL CHARGE" means, collectively, the special charges
listed on Schedule A hereto and communicated in writing to the Lenders
on January 18, 2002.
"WAIVER PERIOD" means the period commencing on December 28,
2001 and ending on the earliest of (i) 12:00 Noon (New York City time)
on April 15, 2002, (ii) the date on which any of the conditions
specified in Section 2(d) ceases to be met and (iii) the date on which
the Waiver Period is terminated pursuant to Section 2(e).
SECTION 2. LIMITED WAIVER. (a) During the Waiver Period, the Required
Lenders hereby waive compliance by the Company with Sections 6.01(a), 6.01(b)
and 6.04 of the Credit Agreement, and any Event of Default or Potential Default
arising from its failure to comply with such Sections, but solely to the extent
such failure to comply is due to the Special Charge.
(b) During the Waiver Period, the Required Lenders hereby waive
compliance by the Company with Sections 5.01(a) and 5.01(c) of the Credit
Agreement and any Event of Default or Potential Default arising from its failure
to comply with such Sections.
(c) During the Waiver Period, the Required Lenders hereby waive as a
condition to issuance of a Performance Letter of Credit under the Credit
Agreement the requirement in Section 4.02(b) of the Credit Agreement that the
representation and warranty in Section 3.08 of the Credit Agreement be true and
correct, but solely to the extent the inaccuracy thereof is by reason of matters
disclosed to the Lenders in writing prior to the Amendment Effective Date (as
defined below).
(d) The waivers granted pursuant to subsections (a), (b) and (c) above
are subject to the conditions that, and the Company hereby agrees that, on and
after the Amendment Effective Date and for so longer thereafter as such waivers
remain in effect:
(i) neither the Company nor any of its Subsidiaries shall
incur any Indebtedness which is, or procure the issuance of any letter
of credit the reimbursement obligation in respect of which would be,
Guaranteed by or otherwise considered Indebtedness of any Credit Party
or any of their respective domestic Subsidiaries (collectively, the
"RESTRICTED ENTITIES"), other than Performance Letters of Credit issued
pursuant to the Credit Agreement; PROVIDED, however, that Parent may
guarantee performance bonds or performance letters of credit of any
Subsidiary other than a Restricted Entity;
(ii) none of the Borrowers shall borrow any Loan or request
the issuance of any Letter of Credit pursuant to the Credit Agreement
other than Performance Letters of Credit;
(iii) simultaneously with or prior to the issuance of any
Performance Letter of Credit under the Credit Agreement, the Company
shall Cash Collateralize the full amount of such Performance Letter of
Credit in accordance with the Credit Agreement;
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(iv) no Restricted Entity shall incur any Lien securing
Indebtedness, any letter of credit or any amounts payable in respect of
the Perryville Lease Agreement (as defined below) or the Receivables
Securitization (as defined below), except as contemplated by (iii)
above;
(v) no Restricted Entity shall make any Investment in any
Special Purpose Subsidiary;
(vi) the aggregate cash balances in all bank accounts
maintained by the Restricted Entities with any depositary institution
which is not a Lender shall not at any time exceed $1,000,000; and
(vii) neither the Company nor any of its Subsidiaries will
make any payment of principal of any Indebtedness of any Restricted
Entity other than Loans.
(e) If any of the events or conditions specified in clauses (i), (ii),
(iii) and (iv) below shall occur, the Required Lenders may terminate the Waiver
Period at their option by notice to the Company, such termination to be
effective immediately upon the giving of such notice. The events and conditions
referred to in the preceding sentence are:
(i) the Company shall not have delivered to the Lenders by
January 30, 2002, its business plan (as well as a commentary on the
proposed execution of such business plan), which shall include
financial projections (including income statement, balance sheet, cash
flow and other data), project backlog and other data by business unit
on a quarterly basis for fiscal year 2002 and on an annual basis for
fiscal year 2003;
(ii) the Company shall not have delivered to the Lenders
prior to or on the date of the meeting of Lenders referred to below,
its business plan, which shall include financial projections (including
income statement, balance sheet, cash flow and other data), project
backlog and other data by business unit on an annual basis for fiscal
years 2004 and 2005, and convened by March 1, 2002, a meeting of
Lenders at which meeting it shall review and respond to questions
concerning its business plan and propose the terms of a permanent
amendment to the Credit Agreement;
(iii) the Company or any Subsidiary shall fail to make one or
more payments in respect of any Indebtedness when due (without giving
effect to any applicable grace period), or any event or condition shall
occur which results in
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the acceleration of the maturity of any Indebtedness or enables (or,
with the giving of notice or lapse of time or both, would enable) the
holder of such Indebtedness or any person acting on such holder's
behalf to accelerate the maturity thereof; or
(iv) the Company shall have suffered there to be any
reduction in the amount of financing available to it and/or its
Subsidiaries under, or any default under or in connection with, or any
other event or condition which would permit a reduction in the amount
of financing available under, either (x) the $37,000,000 Participation
Agreement and Loan Facility dated as of December 16, 1994 among
National Westminster Bank plc, the other lenders named therein and
Perryville III Trust (the "PERRYVILLE LEASE AGREEMENT") or (y) the
Receivables Purchase Agreement among Xxxxxx Xxxxxxx Funding
Corporation, Xxxxxx Xxxxxxx Capital & Finance Corporation, Market
Street Funding Corporation and PNC Bank, National Association dated as
of September 25, 1998 (the "RECEIVABLES SECURITIZATION"), each as
amended prior to the Amendment Effective Date; PROVIDED, however, that
the Company may reduce the amount of financing available under the
Perryville Lease Agreement, but only to the extent ratably equivalent
to the reduction in outstanding unsecured exposure under the Credit
Agreement by virtue of expiration of Letters of Credit (or payment of
principal) during the Waiver Period.
The Company shall forthwith notify the Lenders of any event or condition
described above of which it has knowledge.
(f) The Company acknowledges that, upon formal approval by its Board of
Directors of the Special Charge, one or more Events of Default would exist but
for the waiver granted pursuant to subsection (a) above.
(g) Each of the waivers granted pursuant to subsections (a), (b) and
(c) above shall be limited precisely as written, shall not constitute a waiver
of compliance with, or an Event of Default or Potential Default arising under,
any provision of the Credit Agreement except those specified above and shall not
constitute a waiver of compliance with, or an Event of Default or Potential
Default under, such specified Sections at any time after such waiver ceases to
be effective. Each such waiver shall cease to be effective at the earliest of
(i) 12:00 Noon (New York City time) on April 15, 2002, (ii) the time any
condition specified in subsection (d) ceases to be met and (iii) the time the
Waiver Period is terminated pursuant to subsection (e).
SECTION 3. CERTAIN AMENDMENTS TO CREDIT AGREEMENT. (a) Section
5.01(f)(i) of the Credit Agreement is amended (i) by deleting the first proviso
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thereunder and (ii) by changing each reference to "10" in the second proviso
thereunder to "two";
(b) Section 6.11(iv) of the Credit Agreement is amended by deleting
clause (x) thereunder; and
(c) Section 7.01(d) of the Credit Agreement is amended by restating it
in its entirety as follows:
(d) Any Borrower shall default in the performance or observance of any
covenant contained in Article VI hereof.
SECTION 4. COOPERATION. The Company shall use its best efforts to give
Ernst & Young Corporate Finance LLC access to such information and personnel as
may be necessary or requested by them in completing the services contemplated by
their engagement letter.
SECTION 5. REPRESENTATIONS OF THE COMPANY. The Company represents and
warrants that (i) subject in the case of Section 3.08 to matters disclosed in
writing to the Lenders prior to the Amendment Effective Date, the
representations and warranties of the Company set forth in Article 3 of the
Credit Agreement will be true on and as of the Amendment Effective Date and (ii)
no Event of Default or Potential Default will have occurred and be continuing on
such date, in each case after giving effect to this Amendment.
SECTION 6. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. COUNTERPARTS. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 8. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective on the date when the following conditions are met (the "AMENDMENT
EFFECTIVE DATE"):
(a) the Administrative Agent shall have received from each of
the Borrowers and the Guarantors and Lenders comprising the Required
Lenders a counterpart hereof signed by such party or facsimile or other
written confirmation (in form satisfactory to the Administrative Agent)
that such party has signed a counterpart hereof;
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(b) the Administrative Agent shall have received evidence
satisfactory to it of the payment by the Company of all fees and
expenses owed by it to Ernst & Young Corporate Finance LLC and Xxxxxxxx
Consulting for which invoices have theretofore been rendered;
(c) the Administrative Agent shall have received an amendment
fee for the account of each Lender from which the Administrative Agent
shall have received a signed counterpart hereof (or satisfactory
confirmation of its signing a counterpart hereof) not later than the
date of satisfaction of the condition in clause (a) in an amount equal
to 0.25% of such Lender's Commitment; and
(d) the Company shall have paid all other fees and expenses
payable by the Company pursuant to any written agreement in connection
with this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
ATTEST: XXXXXX XXXXXXX LLC, as a Borrower
By: Foreign Holdings Ltd., its sole member
By /s/ Xxxx X. Xxxxx, Xx. By /s/ Xxxxxx Xxxxxxxxx
----------------------------------- ---------------------------------------
Name: Xxxx X. Xxxxx, Xx. Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Secretary Title: Vice President
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XXXXXX XXXXXXX USA CORPORATION, as a
Borrower
By /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
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XXXXXX XXXXXXX ENERGY INTERNATIONAL, INC.,
NOW KNOWN AS XXXXXX XXXXXXX POWER
GROUP, INC., as a Borrower
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
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XXXXXX XXXXXXX ENERGY CORPORATION, as a
Borrower
By /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
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XXXXXX XXXXXXX US HOLDINGS, INC.,
NOW KNOWN AS XXXXXX XXXXXXX, INC.,
as a Guarantor
By /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
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XXXXXX XXXXXXX INTERNATIONAL HOLDINGS,
INC., as a Guarantor
By /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
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FOREIGN HOLDINGS LTD., as a Guarantor
By /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
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XXXXXX XXXXXXX LTD., as a Guarantor
By /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
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BANK OF AMERICA, N.A., individually and as
Administrative Agent, LC Issuer and
Swingline Lender
By /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
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FIRST UNION NATIONAL BANK, individually
and as Syndication Agent
By /s/ Xxx X. Xxxxxxxx
---------------------------------------
Name: Xxx X. Xxxxxxxx
Title: Senior Vice President
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ABN AMRO BANK N.V., individually and as
Documentation Agent
By /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Group Vice President
By /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President
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TORONTO DOMINION (TEXAS), INC.
By /s/ Xxx X. Xxxxxx
---------------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President
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XXXXXXXX XXXXXXXXXXX XXXX XXX, XXX XXXX
BRANCH
By
---------------------------------------
Name:
Title:
NATIONAL WESTMINSTER BANK PLC, NASSAU
BRANCH
By
---------------------------------------
Name:
Title:
00
XXX XXXX XX XXXX XXXXXX
By /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
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BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By /s/ X. X. Xxx
---------------------------------------
Name: X. X. Xxx
Title: Vice President
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CITIBANK, N.A.
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
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DEUTSCHE BANK AG NEW YORK BRANCH
and/or CAYMAN ISLANDS BRANCH
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President
By /s/ Hans. C. Narberhaus
---------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
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BNP PARIBAS (successor by merger to Paribas)
By /s/ Xxxxx Xxx
---------------------------------------
Name: Xxxxx Xxx
Title: Vice President
By /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
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PNC BANK, NATIONAL ASSOCIATION
By /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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SOCIETE GENERALE, NEW YORK BRANCH
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
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WELLINGTON PARTNERS LIMITED PARTNERSHIP
By: Citadel Limited Partnership,
Portfolio Manager
By: GLB Partners, L.P., General Partner
By: Citadel Investment Group, L.L.C.,
General Partner
By /s/ Xxxx Xxxxx
---------------------------------------
Name: Xxxx Xxxxx
Title: Senior Managing Director
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LIBERTYVIEW FUND LLC
By /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
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SCHEDULE A
4th Quarter Charge 2001
Expected to result in a minimal net cash outlay
PRE-TAX AFTER-TAX
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CONTRACT RELATED: ($ in millions)
HRSGs (6 major Contracts) $42.4 $27.5
Xxxxx Refinery Warranty 11.1 7.2
Receivables (20 Contracts) 24.2 15.7
Claims Reassessment 37.0 24.1
RESTRUCTURING:
Coli Termination 20.0 13.0
Other Restructuring 21.6 14.0
Tax Valuation Allowance 155.9
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$257.4
FAS 142 (Goodwill) for $25.0 million will be applied in 1st quarter 2002
