[CONFORMED COPY]
AMENDMENT NO. 2
AMENDMENT NO. 2 dated as of April 30, 2002 (this "AMENDMENT") to
AMENDMENT No. 1 and WAIVER dated as of January 28, 2002 (as the same has
heretofore been or may hereafter be amended from time to time, the "FIRST
AMENDMENT AND WAIVER") 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 FOSTER
WHEELER LLC, FOSTER WHEELER USA CORPORATION, FOSTER WHEELER POWER GROUP, INC.
(formerly known as FOSTER WHEELER ENERGY INTERNATIONAL, INC.), FOSTER WHEELER
ENERGY CORPORATION, the Guarantors signatory thereto, the Lenders signatory
thereto, BANK OF AMERICA, N.A., as Administrative Agent, WACHOVIA BANK, NATIONAL
ASSOCIATION (formerly known as 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.,
WACHOVIA SECURITIES, INC. (formerly known as 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. 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.
SECTION 2. AMENDMENTS TO FIRST AMENDMENT AND WAIVER. (a) The
definition of "SPECIAL CHARGE" in Section 1(b) of the First Amendment and Waiver
is amended by changing the amount of additional charges from "$50,000,000" to
"$80,000,000".
(b) Clause (i) of the definition of "WAIVER PERIOD" in Section 1(b) of
the First Amendment and Waiver is amended by changing "April 30, 2002" to "May
30, 2002".
(c) Section 2(a) of the First Amendment and Waiver is amended by
inserting at the end thereof "or, for purposes of compliance with Section
6.01(b)
of the Credit Agreement, the borrowing of up to an additional $70,000,000 of
Loans in the first quarter of 2002 under the Credit Agreement."
(d) Section 2(c) of the First Amendment and Waiver is amended by
inserting at the end thereof "or an additional $26,000,000 shortfall in
Consolidated Adjusted EBITDAR".
(e) Clause (i) of the second sentence of Section 2(g) of the First
Amendment and Waiver is amended by changing "April 30, 2002" to "May 30, 2002".
SECTION 3. 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 effective date of the First Amendment and
Waiver and the $30,000,000 shortfall in Consolidated Adjusted EBITDAR disclosed
to the Lenders at the bank meeting held on April 4, 2002 and an additional
$26,000,000 shortfall in Consolidated Adjusted EBITDAR, 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 4. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 5. 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 6. 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; and
(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 pursuant to the Credit Agreement or any written
agreement in connection with the First Amendment and Waiver (including
without
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limitation the fees and expenses of Davis Polk & Wardwell,
Ernst & Young Corporate Finance LLC and Peterson Consulting) for which
invoices have theretofore been rendered.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
ATTEST: FOSTER WHEELER LLC, as a Borrower
By: Foreign Holdings Ltd.,
its sole member
By /S/ ROBERT D. ISEMAN By /S/ STEVEN I. WEINSTEIN
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Name: Robert D. Iseman Name: Steven I. Weinstein
Title: Vice President Title: Vice President
FOSTER WHEELER USA CORPORATION,
as a Borrower
By /S/ LISA FRIES GARDNER
---------------------------------
Name: Lisa Fries Gardner
Title: Secretary
FOSTER WHEELER POWER GROUP, INC.
(formerly known as FOSTER WHEELER
ENERGY INTERNATIONAL, INC.),
as a Borrower
By /S/ ROBERT D. ISEMAN
---------------------------------
Name: Robert D. Iseman
Title: Treasurer
FOSTER WHEELER ENERGY CORPORATION,
as a Borrower
By /S/ LISA FRIES GARDNER
---------------------------------
Name: Lisa Fries Gardner
Title: Secretary
FOSTER WHEELER, INC. (formerly known as
FOSTER WHEELER US HOLDINGS, INC.),
as a Guarantor
By /S/ STEVEN I. WEINSTEIN
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Name: Steven I. Weinstein
Title: Vice President
FOSTER WHEELER INTERNATIONAL HOLDINGS,
INC., as a Guarantor
By /S/ STEVEN I. WEINSTEIN
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Name: Steven I. Weinstein
Title: Vice President
FOREIGN HOLDINGS LTD., as a Guarantor
By /S/ THOMAS R. O'BRIEN
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Name: Thomas R. O'Brien
Title: Director & Vice President
FOSTER WHEELER LTD., as a Guarantor
By /S/ STEVEN I. WEINSTEIN
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Name: Steven I. Weinstein
Title: Vice President
BANK OF AMERICA, N.A., individually and
as Administrative Agent, LC Issuer and
Swingline Lender
By /S/ F. A. ZAGAR
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Name: F.A. Zagar
Title: Managing Director
WACHOVIA BANK, NATIONAL ASSOCIATION,
individually and as Syndication Agent
By /S/ CHRISTOPHER TIERNEY
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Name: Christopher Tierney
Title: Senior Vice President
ABN AMRO BANK N.V., individually and as
Documentation Agent
By /S/ STEVEN C. WIMPENNY
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Name: Steven C. Wimpenny
Title: Group Senior Vice President
By /S/ PARKER H. DOUGLAS
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Name: Parker H. Douglas
Title: Group Vice President
TORONTO DOMINION (TEXAS), INC.
By /S/ ANN S. SLANIS
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Name: Ann S. Slanis
Title: Vice President
NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
By
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Title:
NATIONAL WESTMINSTER BANK PLC,
NASSAU BRANCH
By
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Title:
THE BANK OF NOVA SCOTIA
By
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Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By
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Title:
CITIBANK, N.A.
By /S/ MICHAEL C. BECKER
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Name: Michael C. Becker
Title: Director
DEUTSCHE BANK AG NEW YORK BRANCH and/or
CAYMAN ISLANDS BRANCH
By /S/ PATRICK DOWLING
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Name: Patrick Dowling
Title: Vice President
By /S/ GREGORY SHEFRIN
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Name: Gregory Shefrin
Title: Director
BNP PARIBAS (successor by merger to
Paribas)
By /S/ BARRY LIU
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Name: Barry Liu
Title: Vice President
By /S/ OLIVIER SERRA
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Name: Olivier Serra
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By /S/ DENNIS F. LENNON
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Name: Dennis F. Lennon
Title: Vice President
SOCIETE GENERALE, NEW YORK BRANCH
By /S/ MICHEL CHATAIN
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Name: Michel Chatain
Title: Managing Director
WELLINGTON PARTNERS LIMITED
PARTNERSHIP
By: Citadel Limited Partnership, its
Portfolio Manager
By: GLB Partners, L.P., its General
Partner
By: Citadel Investment Group, L.L.C.,
its General Partner
By /S/ BRAD COURI
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Name: Brad Couri
Title: Senior Managing Director
LIBERTYVIEW FUND LLC
By
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Title:
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