EXHIBIT 10.1
FIRST AMENDMENT AND WAIVER
THIS FIRST AMENDMENT AND WAIVER (this "Amendment") dated as of August
6, 2004 (the "Amendment Effective Date"), is by and among Willbros Group, Inc.,
a Republic of Panama corporation (herein referred to as the "Company"); 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, 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
PRELIMINARY STATEMENTS
WHEREAS, the Company has requested a revision to and waiver of certain
covenants under the Credit Agreement and the calculation of the Net Borrowing
Base.
WHEREAS, the Company has requested the Banks to enter into this
Amendment in connection with the foregoing;
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 waive (and ratify any prior
waivers for) any Default or Event of Default that may have occurred as a result
of noncompliance by the Company with its covenant in Section 9.11(b)(ii) for
the quarter ending June 30, 2004 prior to amendment of said section and
covenant as provided herein.
Section 2. Amendment of Credit Agreement. The Credit Agreement is
hereby amended, effective as of the Amendment Effective Date, as follows:
(a) Section 1.1. The following defined terms are hereby amended and
restated in their entirety as set forth below:
"Fixed Charge Coverage Ratio" means, for any period, the ratio of
(i) Adjusted EBITDA less Net Capital Expenditures (as defined below)
to (ii) fixed charges (where fixed charges include Consolidated
Interest Expense, scheduled
principal repayments and cash dividends paid in the trailing four
quarters of the Company). For purposes of this definition, "Net
Capital Expenditures" equals Capital Expenditures in the trailing four
quarters of the Company minus cash and cash equivalents as reported on
the most recent quarterly financial statement of the Company in excess
of $10,000,000 (provided that in no event may Net Capital Expenditures
be less than zero).
"Net Borrowing Base" means, for any day of determination thereof:
(a) if the Company has provided a timely Borrowing Base
Certificate in accordance with Section 4.2 hereof on or prior to such
day, an amount equal to the "Net Borrowing Base" set forth in the most
recently delivered Borrowing Base Certificate, which shall be
calculated to equal the lesser of (i) the Gross Borrowing Base less
Local Debt as of the Calculation Date of such Borrowing Base
Certificate or (ii) an amount equal to a multiple of Adjusted EBITDA
less Local Debt as of the Calculation Date of such Borrowing Base
Certificate, where the multiple for Adjusted EBITDA will be as
follows:
(A) for the four quarter period ending June 30, 2004, six (6),
(B) for the four quarter period ending September 30, 2004, five
(5),
(C) for the four quarter period ending December 31, 2004, five
(5),
(D) for the four quarter period ending March 31, 2005, four (4),
(E) for the four quarter period ending Xxxx 00, 0000, xxxx (0),
(X) for the four quarter period ending on the last day of any
fiscal quarter on and after September 30, 2005, three and one
half (3.5); and
(b) if the Company has failed to provide a timely Borrowing Base
Certificate in accordance with Section 4.2 on or prior to such day, an
amount equal to 80% of the Net Borrowing Base in effect on the day
immediately prior to the date such Borrowing Base Certificate should
have been delivered to the Agent in accordance with Section 4.2
hereof.
(b) Section 9.11(b). Section 9.11(b) is amended and restated in its
entirety as follows:
(b) The Company shall not permit the ratio of its Financial
Indebtedness to Adjusted EBITDA at the end of each fiscal quarter,
calculated for the four quarter period then ended, to exceed (i) 4.00
to 1.00 for the fiscal quarter ending September 30, 2004, (ii) 4.00 to
1.00 for the fiscal quarter ending December 31, 2004, (iii) 3.00 to
1.00 for the fiscal quarter ending March 31, 2005, (iv) 3.00 to 1.00
for the fiscal quarter ending June 30, 2005, and (v) 2.00 to 1.00 for
each quarter ending thereafter.
(c) Section 9.13. Section 9.13 is amended and restated in its entirety
as follows:
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9.13 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 September 30, 2004 for the four fiscal quarter
period then ended, to be less than (i) 1.75 to 1.00 for the fiscal
quarter ending September 30, 2004, (ii) 1.75 to 1.00 for the fiscal
quarter ending December 31, 2004, (iii) 2.50 to 1.00 for the fiscal
quarter ending March 31, 2005, (iv) 2.50 to 1.00 for the fiscal
quarter ending June 30, 2005, and (v) 3.00 to 1.00 for each quarter
ending thereafter.
Section 3. Conditions to Effectiveness. This Amendment shall become
effective as of the Amendment Effective Date when the Agent has confirmed (and
have so notified the Company and the Banks) that it has received:
(i) counterparts hereof duly executed by the Obligors and the
Required Banks;
(ii) a Certificate of the Company, signed on behalf of the Company
by its President or Chief Financial Officer, dated as of the
date hereof, certifying that, after giving effect hereto, the
following statements shall be true:
(A) 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), as though made on
and as of such date; and
(B) no event has occurred and is continuing which constitutes a
Default, an Event of Default or both unless waived by this Amendment;
Section 4. 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 5. 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 6. 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 7. 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.
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Section 8. 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 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.
[Remainder of Page Intentionally Left Blank]
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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 /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President & Treasurer
WILLBROS U.S.A., INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President &
Treasurer
WILLBROS INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
WILLBROS WEST AFRICA, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
WILLBROS (NIGERIA) LIMITED
By: /s/ J. Xxxxxxx Xxxxxxx
--------------------------------------
Name: J. Xxxxxxx Xxxxxxx
Title: Managing Director
WILLBROS (OFFSHORE) NIGERIA LIMITED
By: /s/ J. Xxxxxxx Xxxxxxx
--------------------------------------
Name: J. Xxxxxxx Xxxxxxx
Title: Managing Director
WILLBROS MIDDLE EAST, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
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WILLBROS RPI, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President & Treasurer
CONSTRUCTORA CAMSA, C.A.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Principal Director
WILLBROS OPERATING SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Secretary
WILLBROS ENERGY SERVICES COMPANY
By: /s/ J. Xxxxx Xxxx
--------------------------------------
Name: J. Xxxxx Xxxx
Title: President
WILLBROS MARINE ASSETS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
INTERNATIONAL PIPELINE EQUIPMENT, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
WILLBROS TRANSANDINA S.A.
By: /s/ J. Xxxxxxx Xxxxxxx
--------------------------------------
Name: J. Xxxxxxx Xxxxxxx
Title: Managing Director
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WILLBROS ENGINEERS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
ESCA EQUIPMENT SERVICE C.A.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Principal Director
WILLBROS MSI CANADA INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President & Treasurer
WILLBROS CONSTRUCTORS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
WILLBROS PACIFIC INDUSTRIAL ELECTRIC,
INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
WILLBROS PROCESS ENGINEERING DESIGN, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
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WILLBROS PROCESS ELECTRIC AND CONTROL, INC.
By: /s/ J. Xxxxx Xxxx
--------------------------------------
Name: J. Xxxxx Xxxx
Title: President
WILLBROS MT. WEST, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President & Treasurer
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AGENT:
CALYON NEW YORK BRANCH (formerly known as
Credit Lyonnais New York Branch)
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
ISSUING BANK:
CALYON NEW YORK BRANCH (formerly known as
Credit Lyonnais New York Branch)
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
LEAD ARRANGER AND
BOOK RUNNER:
CALYON NEW YORK BRANCH (formerly known as
Credit Lyonnais New York Branch)
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
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SYNDICATION AGENT:
CIBC INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Director
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BANKS:
CALYON NEW YORK BRANCH (formerly known as
Credit Lyonnais New York Branch)
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
00
XXX XXXXX INTERNATIONAL BANK INC.
By:
Name:
Title:
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ARAB BANKING CORPORATION (B.S.C.)
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: General Manager
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
00
XXX XXXX XX XXXX XXXXXX
By: /s/ M. D. Xxxxx
--------------------------------------
Name: M. D. Xxxxx
Title: Agent Operations
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BANK OF TEXAS, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
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CIBC INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Director
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COMMERCEBANK, N.A.
By: /s/ Xxxxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Senior Vice President
By: /s/ Xxxxx Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx Ramesh
Title: Senior Vice President
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COMPASS BANK
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
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JPMORGAN CHASE BANK
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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NATEXIS BANQUES POPULAIRES
By: /s/ Xxx Xxxxxxx
--------------------------------------
Name: Xxx Xxxxxxx
Title: Vice President and Manager
By: /s/ Xxxxxx d/Herbes
\ --------------------------------------
Name: Xxxxxx x'Xxxxxx
Title: Senior Vice President and
Regional Manager
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RZB FINANCE, LLC
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Name: Xxxxxx Xxxxx
Title: President
By: /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: Group Vice President
00
XXXXXXXXX XXXX XX XXXXX, NA
By: /s/ C. Xxxx Xxxxxxx
-------------------------------------
Name: C. Xxxx Xxxxxxx
Title: Vice President
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