Contract
EXHIBIT
10.1
WAIVER
AND AGREEMENT dated as of July 13, 2007 (this “Waiver”),
to
the Second Amended and Restated Credit Agreement dated as of June 14, 2005
(as
amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”),
among
Washington Group International, Inc., a Delaware corporation (the “Borrower”),
the
Lenders (as defined in Article I of the Credit Agreement) and Credit Suisse
(formerly known as Credit Suisse First Boston), as administrative agent (in
such
capacity, the “Administrative
Agent”)
and as
collateral agent (in such capacity, the “Collateral
Agent”)
for
the Lenders.
A. Pursuant
to the Credit Agreement, the Lenders and the Issuing Bank have extended, and
have agreed to extend, credit to the Borrower.
B. The
Borrower has requested that the Requisite Lenders waive compliance by the
Borrower with its obligation to (i) maintain a minimum Fixed Charge Coverage
Ratio, as of the quarter ended June 29, 2007, of at least 1.5 to 1.0 and (ii)
not make or incur, or permit to be made or incurred, Capital Expenditures during
the Fiscal Year of 2007, in the aggregate, in excess of the amount of $69.3
million.
C. The
Requisite Lenders are willing to grant such waiver, pursuant to the terms and
on
the conditions set forth herein.
D. Capitalized
terms used but not defined herein shall have the meanings assigned to them
in
the Credit Agreement.
Accordingly,
in consideration of the mutual agreements herein contained and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION
1. Waiver
and Agreement.
The
Requisite Lenders hereby waive (i) the requirement contained in Section 5.2
of
the Credit Agreement to maintain for the four Fiscal Quarters ending on June
29,
2007 a Fixed Charge Coverage Ratio of at least 1.5 to 1.0, and (ii) the
prohibition contained in Section 5.4 of the Credit Agreement on making or
incurring Capital Expenditures during the 2007 Fiscal Year in excess of $69.3
million (which amount includes certain carryover amounts from Fiscal Year 2006),
to the extent such failure to comply with such Sections 5.2 and 5.4 of the
Credit Agreement is a direct result of the developments described in the letter
dated July 3, 2007 from the Borrower to the Administrative Agent; and
provided
that the
Borrower shall be required to be in compliance with Sections 5.2 (other than
with respect to the four Fiscal Quarter period ending June 29, 2007) and 5.4
as
of September 28, 2007.
SECTION
2. Representations
and Warranties.
To
induce the other parties hereto to enter into this Waiver, the Borrower
represents and warrants to each of the Lenders, the Administrative Agent, the
Issuing Bank and the Collateral Agent that (a) the representations and
warranties set forth in Article III of the Credit Agreement are true and
correct in all material respects on and as of the date hereof, except to the
extent such representations and warranties expressly relate to an earlier date;
and (b) no Default or Event of Default has occurred and is continuing,
except to the extent such Default or Event of Default expressly relates to
Sections 5.2 or 5.4 of the Credit Agreement as specifically referred to
herein.
SECTION
3. Effectiveness.
This
Waiver shall become effective as of the date set forth above on the date on
which the Administrative Agent shall have received counterparts of this Waiver
that, when taken together, bear the signatures of (a) the Borrower and
(b) Requisite Lenders.
SECTION
4. Effect
of Waiver.
Except
as expressly set forth herein, this Waiver shall not by implication or otherwise
limit, impair, constitute a waiver of, or otherwise affect the rights and
remedies of the Lenders, the Issuing Bank, the Collateral Agent or the
Administrative Agent under the Credit Agreement or any other Loan Document,
and
shall not alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document, all of which are ratified and affirmed
in
all respects and shall continue in full force and effect. Nothing herein shall
be deemed to entitle any Loan Party to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any other Loan
Document in similar or different circumstances. This Waiver shall apply and
be
effective only with respect to the provisions of the Credit Agreement
specifically referred to herein. After the date hereof, any reference to the
Credit Agreement shall mean the Credit Agreement as modified hereby. This Waiver
shall constitute a “Loan Document” for all purposes of the Credit Agreement and
the other Loan Documents.
SECTION
5. Counterparts.
This
Waiver may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall constitute
but one and the same contract. Delivery of an executed counterpart of a
signature page of this Waiver by facsimile transmission shall be as effective
as
delivery of a manually executed counterpart hereof.
SECTION
6. Applicable
Law.
THIS
WAIVER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE
STATE OF NEW YORK.
SECTION
7. Headings.
The
headings of this Waiver are for purposes of reference only and shall not limit
or otherwise affect the meaning hereof.
[Remainder
of page intentionally left blank]
IN
WITNESS WHEREOF, the parties hereto have caused this Waiver to be duly executed
by their duly authorized officers, all as of the date and year first above
written.
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WASHINGTON
GROUP
INTERNATIONAL,
INC.,
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By
/s/ Xxxxxx X. Xxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxx
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Title:
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Executive
Vice President and
Chief
Financial Officer
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CREDIT
SUISSE, CAYMAN ISLANDS
BRANCH,
individually and as
Administrative
Agent
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by
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/s/
Xxxxxx Xxxx
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Name:
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Xxxxxx
Xxxx
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Title:
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Managing
Director
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/s/
Xxxxxx X. Xxxxxxx
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by
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Name:
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Xxxxxx
X. Xxxxxxx
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Title:
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Associate
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SIGNATURE
PAGE TO WAIVER AND AGREEMENT TO THE WASHINGTON GROUP INTERNATIONAL,
INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF JUNE 14,
2005.
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Name
of Lender:
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Bank
of America, N.A.
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by
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/s/
Xxxxxx X. Xxxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxxx
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Title:
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Managing
Director
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SIGNATURE
PAGE TO WAIVER AND AGREEMENT TO THE WASHINGTON GROUP INTERNATIONAL,
INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF JUNE 14,
2005.
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Name
of Lender:
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Commerzbank
AG, New York and Grand Cayman Branches
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by
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/s/
Yangling Xxxxxx Si
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Name:
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Yangling
Xxxxxx Si
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Title:
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Vice
President
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by
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/s/
Xxxxxxx Xxxxxx
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Name:
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Xxxxxxx
Xxxxxx
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Title:
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Assistant
Treasurer
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SIGNATURE
PAGE TO WAIVER AND AGREEMENT TO THE WASHINGTON GROUP INTERNATIONAL,
INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF JUNE 14,
2005.
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Name
of Lender:
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HSBC
Bank USA, National Association
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by
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/s/
Xxxxx Xxxxx
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Name:
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Xxxxx
Xxxxx
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Title:
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First
Vice President
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SIGNATURE
PAGE TO WAIVER AND AGREEMENT TO THE WASHINGTON GROUP INTERNATIONAL,
INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF JUNE 14,
2005.
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Name
of Lender:
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KeyBank
National Association
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by
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/s/
Xxxxx Xxxxxx
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Name:
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Xxxxx
Xxxxxx
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Title:
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Vice
President
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SIGNATURE
PAGE TO WAIVER AND AGREEMENT TO THE WASHINGTON GROUP INTERNATIONAL,
INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF JUNE 14,
2005.
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Name
of Lender:
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LaSalle
Bank National Association
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by
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/s/
Xxxxx Xxxxxxxxxxx
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Name:
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Xxxxx
Xxxxxxxxxxx
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Title:
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SVP
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SIGNATURE
PAGE TO WAIVER AND AGREEMENT TO THE WASHINGTON GROUP INTERNATIONAL,
INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF JUNE 14,
2005.
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United
Overseas Bank Limited, New York Agency
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by
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/s/
Xxxxxx Xxx
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Name:
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Xxxxxx
Xxx
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Title:
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SVP
& GM
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by
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/s/
Xxxxx Xxxxx
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Name
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Xxxxx
Xxxxx
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Title:
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AVP
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SIGNATURE
PAGE TO WAIVER AND AGREEMENT TO THE WASHINGTON GROUP INTERNATIONAL,
INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF JUNE 14,
2005.
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Name
of Lender:
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BNP
Paribas
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by
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/s/
Xxxxxxxxx Xxxxx
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Name:
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Xxxxxxxxx
Xxxxx
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Title:
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Managing
Director
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by
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/s/
Xxxxx Xxxxxxx
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Name:
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Xxxxx
Xxxxxxx
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Title:
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Vice
President
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SIGNATURE
PAGE TO WAIVER AND AGREEMENT TO THE WASHINGTON GROUP INTERNATIONAL,
INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF JUNE 14,
2005.
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Name
of Lender:
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Wachovia
Bank, N.A.
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by
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/s/
Xxxx X. Xxxxxx
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Name:
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Xxxx
X. Xxxxxx
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Title:
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Director
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SIGNATURE
PAGE TO WAIVER AND AGREEMENT TO THE WASHINGTON GROUP INTERNATIONAL,
INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF JUNE 14,
2005.
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Name
of Lender:
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KBC
Bank N.V.
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by
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/s/
Xxxxxx X. Xxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxx
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Title:
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First
Vice President
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by
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/s/
Xxxx Xxxxxx
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Name:
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Xxxx
Xxxxxx
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Title:
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Vice
President
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SIGNATURE
PAGE TO WAIVER AND AGREEMENT TO THE WASHINGTON GROUP INTERNATIONAL,
INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF JUNE 14,
2005.
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Name
of Lender:
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Fifth
Third Bank
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by
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/s/
Xxxxxx Xxxxx
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Name:
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Xxxxxx
Xxxxx
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Title:
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Relationship
Manager
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SIGNATURE
PAGE TO WAIVER AND AGREEMENT TO THE WASHINGTON GROUP INTERNATIONAL,
INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF JUNE 14,
2005.
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Name
of Lender:
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The
Bank of New York
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by
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/s/
Xxxxxx Xxxxxx
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Name:
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Xxxxxx
Xxxxxx
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Title:
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Vice
President
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