Amendment No. 1 to Third Amended and Restated Term Loan and Revolving Credit Agreement among Foster Wheeler LLC, Subsidiaries, Guarantors, Lenders, and Bank of America, N.A.

Summary

This amendment updates the terms of a credit agreement between Foster Wheeler LLC, its subsidiaries, various guarantors, and a group of lenders led by Bank of America, N.A. The amendment modifies the definition of "Consolidated Net Income" to allow for certain charges to be excluded, and sets conditions for the amendment to take effect, including payment of fees and confirmation of no defaults. The agreement is governed by New York law and requires signatures from all key parties.

EX-10.8 10 exh10-8.txt AMENDED CREDIT AGREEMENT EXECUTION COPY AMENDMENT NO. 1 TO CREDIT AGREEMENT AMENDMENT NO. 1 dated as of November 8, 2002 to the Third Amended and Restated Term Loan and Revolving Credit Agreement dated as of August 2, 2002 (the "CREDIT AGREEMENT") among FOSTER WHEELER LLC (the "COMPANY"), the Borrowing Subsidiaries (as defined therein), the GUARANTORS party thereto, the LENDERS party thereto (the "LENDERS") and BANK OF AMERICA, N.A., as Administrative Agent (the "ADMINISTRATIVE AGENT") and Collateral Agent, and BANC OF AMERICA SECURITIES LLC, as Lead Arranger and Book Manager. W I T N E S S E T H : WHEREAS, the Company has requested that the Lenders agree to modify certain provisions of the Credit Agreement, and the undersigned Lenders have so agreed, all on the terms and conditions contained herein; NOW, THEREFORE, 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 CREDIT AGREEMENT. The definition of "Consolidated Net Income" in Section 1.01 of the Credit Agreement is amended by (i) replacing the word "and" at the end of clause (iii) thereof with a comma and (ii) adding the following text at the end thereof: and (v) (A) up to an aggregate of $180,000,000 of gross pretax charges (having an estimated Consolidated Adjusted EBITDA impact of $166,600,000) to be taken in the fiscal quarter ending closest to September 30, 2002, and (B) up to an aggregate of $63,235,000 of additional gross pretax charges that may be taken in the fiscal quarter ending closest to December 31, 2002 or in any fiscal quarter ending in 2003 (including the fiscal quarter ending closest to December 31, 2003), in each case in the individual amounts as described to the Lenders by the Company on November 1, 2002. SECTION 3 . REPRESENTATIONS OF THE COMPANY. The Company represents and warrants that (i) the representations and warranties set forth in the Loan Documents will be true and correct in all material respects on and as of the Amendment Effective Date (except with respect to representations and warranties which specifically refer to an earlier date, which shall be true and correct in all material respects as of such earlier date) and (ii) no Default will have occurred and be continuing on such date. 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 . EFFECTIVENESS. This Amendment shall become effective as of the Effective Date when the following conditions are met (the "AMENDMENT EFFECTIVE DATE"): (a) the Administrative Agent shall have received from each of the Company, each Borrowing Subsidiary, each other Guarantor and 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; (b) the Administrative Agent shall have received from the Company, for the account of each Lender that has evidenced its agreement hereto as provided in subsection (a) above by 12:00 p.m. (New York City time) on the later of (i) November 8, 2002 and (ii) the date on which the Administrative Agent issues a notice to the Lenders stating that the condition set forth in subsection (a) above has been satisfied, an amendment fee in an amount equal to 0.75% of such Lender's Credit Exposure; (c) the Administrative Agent shall have received a work fee for the account of the Administrative Agent in an amount as previously agreed between the Company and the Administrative Agent; and (d) 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 (including without limitation the fees and expenses of Davis Polk & Wardwell and Ernst & Young Corporate Finance LLC) for which invoices have theretofore been rendered. -2- 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 By: Foreign Holdings Ltd., its sole member By: /S/ JOHN A. DOYLE By: /s/ ROBERT D. ISEMAN --------------------------------- --------------------------- Title: Assistant Secretary Title:Vice President & Treasurer FOSTER WHEELER USA CORPORATION By: /s/ ROBERT D. ISEMAN ------------------------- Title:Treasurer FOSTER WHEELER POWER GROUP, INC. By: /s/ ROBERT D. ISEMAN ------------------------- Title:Treasurer FOSTER WHEELER ENERGY CORPORATION By: /s/ ROBERT D. ISEMAN ------------------------- Title: Authorized Person FOSTER WHEELER LTD. By: /s/ ROBERT D. ISEMAN --------------------------- Title:Vice President & Treasurer FOREIGN HOLDINGS LTD. By: /s/ ROBERT D. ISEMAN --------------------------- Title:Treasurer FOSTER WHEELER INC. By: /s/ ROBERT D. ISEMAN --------------------------- Title:Vice President & Treasurer FOSTER WHEELER INTERNATIONAL HOLDINGS, INC. By: /s/ ROBERT D. ISEMAN --------------------------- Title:Vice President & Treasurer EQUIPMENT CONSULTANTS, INC. FOSTER WHEELER ASIA LIMITED FOSTER WHEELER CAPITAL & FINANCE CORPORATION FOSTER WHEELER CONSTRUCTORS, INC. FOSTER WHEELER DEVELOPMENT CORPORATION FOSTER WHEELER ENERGY MANUFACTURING, INC. FOSTER WHEELER ENERGY SERVICES, INC. FOSTER WHEELER ENVIRESPONSE, INC. FOSTER WHEELER ENVIRONMENTAL CORPORATION FOSTER WHEELER FACILITIES MANAGEMENT, INC. FOSTER WHEELER INTERNATIONAL CORPORATION FOSTER WHEELER POWER SYSTEMS, INC. FOSTER WHEELER PYROPOWER, INC. FOSTER WHEELER REAL ESTATE DEVELOPMENT CORP. FOSTER WHEELER REALTY SERVICES, INC. FOSTER WHEELER VIRGIN ISLANDS, INC. FOSTER WHEELER ZACK, INC. FW MORTSHAL, INC. FW TECHNOLOGIES HOLDING, LLC HFM INTERNATIONAL, INC. PROCESS CONSULTANTS, INC. PYROPOWER OPERATING SERVICES COMPANY, INC. By: /s/ ROBERT D. ISEMAN --------------------------- Title:Authorized Person PERRYVILLE III TRUST By: THE BANK OF NEW YORK, not in its individual capacity but solely in its capacity as the Owner Trustee of the Perryville III Trust By: /s/ JOSEPH MATE ----------------------------------- Title: Assistant Vice President BANK OF AMERICA, N.A. By: /s/ F.A. ZAGAR ------------------------------ Title: Managing Director WACHOVIA BANK, NATIONAL ASSOCIATION By: /s/ CHRISTOPHER TIERNEY ------------------------------ Title: Senior Vice President ABN AMRO BANK N.V. By: /s/ STEVEN C. WIMPENNY ------------------------------ Title: Group Senior Vice President By: /s/ PARKER H. DOUGLAS ------------------------------ Title: Group Vice President TORONTO DOMINION (TEXAS), INC. By: /s/ JEAN K. PETTIT ------------------------------ Title: Vice President NATIONAL WESTMINSTER BANK PLC, NEW YORK BRANCH By: /s/ CHARLES GREER ------------------------------- Title: Senior Vice President NATIONAL WESTMINSTER BANK PLC, NASSAU BRANCH By: /s/ CHARLES GREER ------------------------------- Title: Senior Vice President THE BANK OF NOVA SCOTIA By: /s/ TODD S. MELLER ------------------------------- Title: Managing Director MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED By: /s/ KEVIN LYDON ------------------------------- Title: Managing Director MARINER LDC By: /s/ CHIP HOWE ------------------------------- Title:Director DEUTSCHE BANK AG NEW YORK BRANCH AND/OR CAYMAN ISLANDS BRANCH By: /s/ PATRICK DOWLING -------------------------------------- Title: Vice President By: /s/ STEVEN COHEN -------------------------------------- Title: Director BNP PARIBAS By: /s/ BARRY LIU -------------------------------------- Title: Vice President By: /s/ ROBERT MUNCZINSKI -------------------------------------- Title: Managing Director PNC BANK, NATIONAL ASSOCIATION By: /s/ DENNIS F. LENNON -------------------------------------- Title: Vice President SOCIETE GENERALE, NEW YORK BRANCH By: /s/ GORDON R. EADON -------------------------------------- Title: 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/ BRADFORD COURI ------------------------------------- Title: Senior Managing Director LIBERTYVIEW FUND LLC By: /s/ GEORGE T. HARTIGAN ------------------------------------- Title: Managing Director Chief Operations Officer Liberty View Capital Management, Inc. ORIX MERCHANT BANKING, LLC By: /s/ CHARLES D. HOOKER ------------------------------------- Title: President & CEO