EXHIBIT 10.5
FOURTH AMENDMENT AND WAIVER
This Fourth Amendment and Waiver (this "Amendment") dated as of December
21, 2005, is by and among Willbros Group, Inc., a Republic of Panama corporation
(herein referred to as the "Company") and the Designated Subsidiaries; the
financial institutions parties hereto which are Banks under the Credit Agreement
(as defined below); and Calyon New York Branch (formerly known as Credit
Lyonnais New York Branch), as administrative agent for the Banks (in such
capacity, the "Agent"), and amends the Amended and Restated Credit Agreement
dated as of March 12, 2004, as previously amended by the First Amendment and
Waiver dated as of August 6, 2004, the Second Amendment and Waiver dated as of
July 19, 2005, and the Third Amendment and Waiver dated as of November 23, 2005
(the "Third Amendment"), among the Company, the Designated Subsidiaries from
time to time (WGI and such Designated Subsidiaries collectively, the "Obligors"
and individually, an "Obligor"); the several financial institutions from time to
time parties thereto as Banks, Calyon New York Branch (formerly known as Credit
Lyonnais New York Branch), as a Bank, as Issuing Bank (as defined herein), as
Agent, and as Lead Arranger and Book Runner; and CIBC, Inc., as Syndication
Agent (as previously amended and modified, the "Credit Agreement").
PRELIMINARY STATEMENTS
Whereas, the Company intends to issue new Convertible Notes before December
31, 2005 on terms reasonably satisfactory to the Agent, in connection with which
Willbros U.S.A., Inc. will guarantee the Company's obligations under such
Convertible Notes pursuant to an unsecured guaranty;
WHEREAS, after the issuance of such Convertible Notes, the Company will be
unable to comply with its covenant in Section 9.11(a) of the Credit Agreement to
maintain a ratio of Financial Indebtedness to Total Capitalization of no more
than 0.35 to 1.00, and its covenant in Section 9.13 of the Credit Agreement to
maintain a Fixed Charge Coverage Ratio of 3.00 to 1.00 for the fiscal quarter
ending June 30, 2006 and for each quarter thereafter, and has requested the
Banks to amend such covenants;
WHEREAS, the Company failed to comply with its covenant in Section 9.11(c)
to not permit its ratio of Senior Secured Financial Indebtedness to Adjusted
EBITDA as of the fiscal quarter ending September 30, 2005 to exceed 1.00 to 1.00
(the "Senior Secured Financial Indebtedness Default") and has requested the
Banks to waive such default;
WHEREAS, pursuant to the terms of the Third Amendment, the Banks previously
agreed to temporarily waive any Default or Event of Default that would occur
during the period through March 31, 2006 as a result of the Company's failure to
maintain a minimum cash balance of $15,000,000 (the "Prior Waiver");
WHEREAS, the Banks have determined to limit the Prior Waiver to the period
up to the date upon which the Total Commitment is permanently reduced by the Net
Cash Proceeds from the Convertible Notes issuance and to reinstate from such
date the Company's obligation to maintain a minimum cash balance of $15,000,000
in accordance with Section 4.8 of the Credit Agreement; and
WHEREAS, the Banks and the Obligors have agreed to such amendments and
waiver, subject to the terms and conditions set forth in this Amendment;
AGREEMENT
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows. Capitalized terms used but not
otherwise defined herein shall have the meanings assigned such terms in the
Credit Agreement.
Section 1. Waiver. The Banks hereby agree to waive the Senior Secured
Financial Indebtedness Default for the quarter ending September 30, 2005. The
express waiver set forth in this section is the only waiver provided by the
Agent and the Banks pursuant to this Amendment, and all other rights and
remedies of the Agent and the Banks under the Credit Agreement remain unchanged.
Section 2. Amendments of Credit Agreement. Subject to the satisfaction of
the conditions described in Section 4 hereof, the Credit Agreement is hereby
amended as follows:
(a) The defined term "Change of Control" in Section 1.1 of the Credit
Agreement is hereby amended as of the Amendment Effective Date by adding
the following clause to the end thereof: "or (c) the occurrence of any
Fundamental Change as such term is defined in each indenture governing
Convertible Notes".
(b) Section 9.11(a) of the Credit Agreement is hereby amended as of
September 30, 2005 by restating such subsection in its entirety as follows:
(a) The Company shall not permit the ratio of (i) the Financial
Indebtedness of the Company minus 100% of unrestricted cash and Cash
Equivalents of the Company on the Company's balance sheet (excluding
any such cash and Cash Equivalents in the Cash Collateral Account) to
(ii) Total Capitalization minus 100% of unrestricted cash and Cash
Equivalents of the Company on the Company's balance sheet (excluding
any such cash and Cash Equivalents in the Cash Collateral Account), at
the end of any fiscal quarter to exceed 0.50 to 1.00.
(c) Section 9.13 of the Credit Agreement is hereby amended as of the
Amendment Effective Date by restating such section in its entirety as
follows:
Fixed Charge Coverage Ratio. The Company shall not permit its Fixed
Charge Coverage Ratio, calculated at the end of each fiscal quarter on
and after June 30, 2006 for the four fiscal quarter period then ended,
to be less than 2.50 to 1.00.
Section 3. Additional Agreements. The Banks and the Obligors agree that the
following agreements shall apply as if fully incorporated into the terms of the
Credit Agreement:
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(a) No later than December 28, 2005, the Company shall provide to the
Agent evidence satisfactory to the Agent that the Company has received Net
Cash Proceeds of at least $30,000,000 from the sale of new Convertible
Notes, and failure to provide such satisfactory evidence by such date shall
automatically be deemed an Event of Default under the Credit Agreement, and
the Agent may exercise, or shall exercise at the request of the Required
Banks, any remedies provided under the terms of the Credit Agreement.
(b) Notwithstanding anything to the contrary in the Third Amendment,
from and after the date upon which the Company receives Net Cash Proceeds
from the sale of new Convertible Notes, the obligation of the Company under
Section 4.8 of the Credit Agreement to maintain a minimum cash balance of
$15,000,000 shall be in full force and effect.
(c) The Obligors shall provide within thirty (30) days of the date
hereof, the following corporate documents:
(i) (A) copies of the certificate or articles of incorporation or
other equivalent organizational documents, including all amendments
thereto, of each Obligor, certified as of a recent date by the
Secretary of State of the state of its organization or the foreign
equivalent thereof in each jurisdiction where such concept is
relevant, or (B) a certificate of the Secretary or Assistant Secretary
of such Obligor, certifying the full force and effect of the articles
of incorporation or other equivalent organizational documents
previously delivered to the Agent in connection with the Credit
Agreement provided such Obligor makes available a copy of such
articles of incorporation or other equivalent organizational document
to any Bank upon request;
(ii) a certificate of the Secretary, Assistant Secretary or other
officer of each Obligor certifying (A)(1) that attached thereto is a
true and complete copy of the bylaws or similar governing documents of
such Obligor as currently in effect or (2) the full force and effect
of the bylaws or similar governing documents of such Obligor
previously delivered to the Agent in connection with the Credit
Agreement, provided such Obligor makes available a copy of such bylaws
or similar governing document to any Bank upon request, (B) that
attached thereto is a true and complete copy of the resolutions duly
adopted by the Board of Directors or similar governing body of such
Obligor authorizing the execution, delivery and performance of this
Amendment and all other Credit Documents to be executed and delivered
by such Obligor after the date hereof, and (C) that such resolutions
have not been modified, rescinded or amended and are in full force and
effect; and
(iii) a certificate of another officer as to the incumbency and
specimen signature of the Secretary, Assistant Secretary or other
officer executing the certificate pursuant to clause (ii) above.
Section 4. Conditions to Effectiveness. This Amendment shall become
effective on the date upon which (the "Amendment Effective Date") the Agent has
confirmed (and has so notified the Company and the Banks) that it has determined
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the terms and conditions of the new Convertible Notes to be satisfactory and
received the following:
(a) counterparts hereof duly executed by the Obligors and the Required
Banks;
(b) a Certificate of the Company, signed on behalf of the Company by
its President or Chief Financial Officer, dated as of the Amendment
Effective Date, certifying that, after giving effect hereto, the following
statements shall be true:
(i) the representations and warranties of each Obligor contained
in the Credit Documents are correct in all material respects on and as
of such date (other than those representations and warranties that
expressly relate solely to a specific earlier date, which shall remain
correct as of such earlier date, or expressly relate to the Senior
Secured Financial Indebtedness Default), as though made on and as of
such date; and
(ii) no event has occurred and is continuing, or is anticipated
to occur, which constitutes (or would constitute when it occurs) a
Default, or an Event of Default or both unless waived by this
Amendment; and
(c) a Certificate of the Company, signed by the Secretary, Assistant
Secretary or other officer on behalf of the Company and the other Obligors,
certifying as to the incumbency and specimen signature of each officer of
each Obligor executing this Amendment and any other document delivered in
connection herewith.
Section 5. Amendment and Ratification. Upon the effectiveness hereof as
provided in the foregoing Section 3, this Amendment shall be deemed to be an
amendment and waiver to the Credit Agreement, and the Credit Agreement, as
modified hereby, is hereby ratified, approved and confirmed to be in full force
and effect in each and every respect. All references to the Credit Agreement in
any other document, instrument, agreement or writing shall hereafter be deemed
to refer to the Credit Agreement as modified hereby.
SECTION 6. Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.
Section 7. Descriptive Headings, Etc. The descriptive headings of the
several sections of this Amendment are inserted for convenience only and shall
not be deemed to affect the meaning or construction of any of the provisions
hereof.
Section 8. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
Section 9. Waiver of Jury Trial. Each of the parties hereto hereby
irrevocably and unconditionally waives, to the fullest extent it may effectively
do so under applicable law, any
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and all right to trial by jury in any action or proceeding arising out of or
relating to any Loan Document or the transactions contemplated hereby or
thereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective duly authorized officers as
of the Amendment Effective Date.
OBLIGORS:
WILLBROS GROUP, INC.
By:
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Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Treasurer
WILLBROS U.S.A., INC.
By:
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Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Treasurer
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[SIGNATURE PAGE TO FOURTH AMENDMENT]
WILLBROS INTERNATIONAL, INC.,
WILLBROS WEST AFRICA, INC.,
WILLBROS MIDDLE EAST, INC.
WILLBROS MARINE ASSETS, INC.
INTERNATIONAL PIPELINE EQUIPMENT, INC.,
WILLBROS CONSTRUCTORS, INC.,
WILLBROS OPERATING SERVICES, INC.,
WILLBROS RPI, INC.,
WILLBROS MSI CANADA INC. and
WILLBROS PROCESS ELECTRIC AND CONTROL,
INC.
By:
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Name: Gay Xxxxxxx Xxxxxx
Title: Treasurer
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WILLBROS (NIGERIA) LIMITED and
WILLBROS (OFFSHORE) NIGERIA LIMITED
By:
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Name: Gay Xxxxxxx Xxxxxx
Title: Authorized Representative
CONSTRUCTORA CAMSA, C.A. and
ESCA EQUIPMENT SERVICE C.A.
By:
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Name: Gay Xxxxxxx Xxxxxx
Title: Attorney-in-Fact
WILLBROS ENERGY SERVICES COMPANY,
WILLBROS ENGINEERS SLC, INC. (f/k/a
Willbros Process Engineering Design,
Inc.) and
WILLBROS MT. WEST, INC. (individually
and as successor by merger to
Willbros Pacific Industrial Electric,
Inc.)
By:
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Name: Gay Xxxxxxx Xxxxxx
Title: Vice President and Treasurer
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[SIGNATURE PAGE TO FOURTH AMENDMENT]
WILLBROS TRANSANDINA S.A.
By:
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Name: Gay Xxxxxxx Xxxxxx
Title: Alternate Director
WILLBROS ENGINEERS, INC.
By:
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Name: Gay Xxxxxxx Xxxxxx
Title: Assistant Treasurer
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AGENT:
CALYON NEW YORK BRANCH (formerly known
as Credit Lyonnais New York Branch)
By:
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Name:
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Title:
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ISSUING BANK:
CALYON NEW YORK BRANCH (formerly known
as Credit Lyonnais New York Branch)
By:
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Name:
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Title:
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LEAD ARRANGER AND BOOK RUNNER:
CALYON NEW YORK BRANCH (formerly known
as Credit Lyonnais New York Branch)
By:
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Name:
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Title:
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SYNDICATION AGENT:
CIBC INC.
By:
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Name:
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Title:
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BANKS:
CALYON NEW YORK BRANCH (formerly known
as Credit Lyonnais New York Branch)
By:
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Name:
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Title:
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[SIGNATURE PAGE TO FOURTH AMENDMENT]
ABU DHABI INTERNATIONAL BANK INC.
By:
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Name:
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Title:
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[SIGNATURE PAGE TO FOURTH AMENDMENT]
ARAB BANKING CORPORATION (B.S.C.)
By:
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Name:
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Title:
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By:
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Name:
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Title:
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[SIGNATURE PAGE TO FOURTH AMENDMENT]
THE BANK OF NOVA SCOTIA
By:
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Name:
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Title:
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[SIGNATURE PAGE TO FOURTH AMENDMENT]
BANK OF TEXAS, N.A.
By:
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Name:
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Title:
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[SIGNATURE PAGE TO FOURTH AMENDMENT]
CIBC INC.
By:
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Name:
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Title:
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COMMERCEBANK, N.A.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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[SIGNATURE PAGE TO FOURTH AMENDMENT]
COMPASS BANK
By:
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
[SIGNATURE PAGE TO FOURTH AMENDMENT]
JPMORGAN CHASE BANK
By:
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Name:
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Title:
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[SIGNATURE PAGE TO FOURTH AMENDMENT]
NATEXIS BANQUES POPULAIRES
By:
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Name: Xxx Xxxxxxx
Title: Vice President and Manager
By:
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Name: Xxxxxx x'Xxxxxx
Title: Senior Vice President and
Regional Manager
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RZB FINANCE, LLC
By:
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Name:
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Title:
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By:
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Name:
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Title:
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[SIGNATURE PAGE TO FOURTH AMENDMENT]
AMEGY BANK NATIONAL ASSOCIATION
(formerly known as Southwest Bank of
Texas, NA)
By:
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Name:
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Title:
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[SIGNATURE PAGE TO FOURTH AMENDMENT]
