EXHIBIT 10.23a
AMENDMENT NO. 1 AND CONSENT
THIS AMENDMENT NO. 1 AND CONSENT is being executed and delivered as of
January 12, 2004, by and among Chicago Bridge and Iron Company N.V., a
corporation organized under the laws of the Kingdom of the Netherlands (the
"Company"), certain Subsidiaries party thereto as Borrowers (the "Subsidiary
Borrowers"), Bank One, NA as Administrative Agent (the "Administrative Agent")
under the hereinafter identified and defined Credit Agreements and the lenders
party to said Credit Agreements. All capitalized terms used herein without
definition shall have the same meanings as set forth in the hereinafter
identified and defined Three-Year Credit Agreement.
WITNESSETH:
WHEREAS, the Company, the Subsidiary Borrowers, the Lenders
and the Administrative Agent are currently party to that certain Three-Year
Credit Agreement dated as of August 22, 2003 (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the "Three-Year
Credit Agreement"), and that certain Five-Year Credit Agreement dated as of
August 22, 2003 (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "Five-Year Credit Agreement," and, together with
the Three-Year Credit Agreement, the "Credit Agreements");
WHEREAS, certain Subsidiaries of the Company desire to enter
into a transaction pursuant to which a Subsidiary Guarantor will make an
intercompany unsecured loan in an amount not to exceed $60,000,000 to Xxxxxx
CBI, Limited (the "Xxxxxx Transaction");
WHEREAS, the Company has informed the Administrative Agent and
the Lenders of certain proposed transactions pursuant to which (in no particular
order) (i) certain purchasers, which may include members of the current
management teams of Callidus Technologies, L.L.C. and Callidus Technologies
International, L.L.C. (together, "Callidus") with an aggregate book value not in
excess of $12,000,000, acquire Callidus from the Company pursuant to a
transaction to be consummated on or before June 30, 2004 (the "Callidus Sale"),
(ii) Callidus enters into, and obtains extensions of credit under, a secured
credit facility with Bank of Oklahoma N.A. in an aggregate principal amount not
to exceed $10,000,000 (the "Callidus Credit Facility"), (iii) Callidus grants
liens and security interests over all or substantially all of the assets and
properties of Callidus to secure its obligations and liabilities under the
Callidus Credit Facility, (iv) Bank of Oklahoma N.A. is permitted to issue
letters of credit under the Callidus Credit Facility on behalf of Callidus as an
account party ("Callidus L/Cs") so long as the Callidus Sale has not been
consummated and, notwithstanding such consummation, Callidus L/Cs issued prior
to the consummation of the Callidus Sale shall be treated as additional
Indebtedness and Contingent Obligations permitted under the Credit Agreements,
and (v) substantially concurrently with the consummation of the Callidus Sale,
Callidus shall be released from its obligations under the Subsidiary Guaranty
and following such release neither Callidus Technologies, L.L.C. nor Callidus
Technologies International, L.L.C. shall be deemed to be a Subsidiary or a
Subsidiary Guarantor (the foregoing transactions and
events as described in this paragraph being referred to collectively as the
"Callidus Transaction," and, together with the Xxxxxx Transaction, the
"Transactions");
WHEREAS, the Company has requested that, notwithstanding
anything contained in the Credit Agreements, the Lenders consent (the "Consent")
to such Subsidiaries' consummation of the Transactions; and
WHEREAS, the Lenders party hereto are willing to grant the
Consent on the terms and conditions stated herein;
WHEREAS, the Borrowers also have requested the Lenders and the
Agent to amend the Credit Agreements in certain other respects;
WHEREAS, the Lenders and the Agent have agreed to amend the
Credit Agreements on the terms and conditions set forth in section 2 hereof.
NOW, THEREFORE, in consideration of the foregoing premises,
the terms and conditions stated herein and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the Borrowers and
the Lenders, such parties hereby agree as follows:
1. Consent. The Lenders hereby grant the Consent.
2. Amendment. Each Credit Agreement shall be and hereby is
amended as follows:
(a) Section 1.1 is amended to insert the following new
defined terms thereto:
"Callidus" is defined in the First Amendment.
"Callidus Credit Facility" is defined in the First
Amendment.
"Callidus L/Cs" is defined in the First Amendment.
"Callidus Sale" is defined in the First Amendment.
"First Amendment" means that certain Amendment No. 1
and Consent dated as of January 12, 2004 by and among
the Borrowers, the Lenders party thereto and the
Administrative Agent.
(b) The word "and" is deleted from the end of Section
7.3(A)(viii).
(c) Section 7.3(A) is amended to insert a new section
(ix) as follows:
(ix) Indebtedness in an aggregate principal amount
not in excess of $10,000,000 incurred as the direct
result of the issuance of the Callidus L/Cs; and
(d) The former Section 7.3(A)(ix) is renumbered as
Section 7.3(A)(x).
(e) The word "and" is deleted from the end of Section
7.3(B)(v).
(f) Section 7.3(B) is amended to insert a new section
(vi) as follows:
(vi) The Callidus Sale; and
(g) The former Section 7.3(B)(vi) is renumbered as
Section 7.3(B)(vii).
(h) Section 7.3(B)(vii) is amended to change the
reference to "clauses (i) through (v) above" to
"clauses (i) through (vi) above."
(i) Section 7.3(C) is amended to insert a new section
(iv) as follows:
(iv) Liens granted by Callidus Technologies, L.L.C.
or Callidus Technologies International, L.L.C. to
secure the Indebtedness permitted by Section
7.3(A)(ix) in connection with the issuance of the
Callidus L/Cs;
(j) The former Section 7.3(C)(iv) is renumbered as
Section 7.3(C)(v).
(k) Section 7.3(D) is amended to insert a new Section (x)
as follows:
(x) Investments resulting from the acceptance of
noncash consideration as a portion of the purchase
price from the Callidus Sale;
(l) The former Section 7.3(D)(x) is renumbered as Section
7.3(D)(xi).
(m) Section 7.3(E) is amended to delete the word "and"
before the letters "(iv)" and to add the following
language at the end:
and (v) Contingent Obligations consisting of
Indebtedness permitted by Section 7.3(A)(ix)
resulting from the issuance of the Callidus L/Cs.
3. Conditions of Effectiveness. This Consent and Amendment
shall be deemed to have become effective as of the date hereof, but such
effectiveness shall be subject to the following conditions: (i) the
Administrative Agent shall have received executed counterparts of this Consent
duly executed and delivered by the Company, the Subsidiary Borrowers and the
"Required Lenders" (under each of the Credit Agreements) and executed
counterparts of the Reaffirmation attached hereto duly executed and delivered by
the Subsidiary Guarantors; (ii) the indebtedness evidenced by the intercompany
loan under the Xxxxxx Transaction shall be expressly subordinate to the payment
in full in cash of the Obligations on terms satisfactory to the Administrative
Agent; (iii) the terms and conditions of each above-described component of the
Callidus Transaction, if consummated, shall be satisfactory to the
Administrative Agent at the time of such consummation; (iv) the Company shall
have paid to the Administrative Agent, for the ratable benefit of each Lender
which has delivered to the Administrative Agent or the
Administrative Agent's counsel its executed signature page hereto by such time
as is required by the Administrative Agent, an amendment fee of $2,500 for each
such consenting Lender and (v) no Default or Unmatured Default shall have
occurred and remain unwaived or uncured.
4. Representation and Warranties. Each Borrower hereby
represents and warrants that (i) all of the representations and warranties
contained in Article VI of each Credit Agreement are true and correct and (ii)
no Default or Unmatured Default is in effect.
5. No Implicit Waiver. Except as expressly set forth herein,
(i) the execution, delivery and effectiveness of this Amendment No. 1 and
Consent shall neither operate as a waiver of any rights, power or remedy of the
Administrative Agent or the Lenders under the Credit Agreements or any other
documents executed in connection with the Credit Agreements, nor constitute a
waiver of any provision of the Credit Agreements nor any other document executed
in connection therewith and (ii) the Credit Agreements shall remain in full
force and effect in accordance with their original terms.
6. GOVERNING LAW. THE ADMINISTRATIVE AGENT ACCEPTS THIS
AMENDMENT NO. 1 AND CONSENT, ON BEHALF OF ITSELF AND THE LENDERS, AT CHICAGO,
ILLINOIS BY ACKNOWLEDGING AND AGREEING TO IT THERE. ANY DISPUTE BETWEEN ANY
BORROWER AND THE ADMINISTRATIVE AGENT OR ANY LENDER ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH, THIS CONSENT AND AMENDMENT, THE CREDIT AGREEMENTS OR ANY OF THE
OTHER LOAN DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR
OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING
SECTION 735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS
OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
IN WITNESS WHEREOF, this Amendment No. 1 and Consent has been duly
executed as of the day and year first above written.
CHICAGO BRIDGE & IRON COMPANY N.V., as the
Company
By: CHICAGO BRIDGE & IRON COMPANY B.V.
Its: Managing Director
By:
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
Signature Page to Amendment No. 1 and Consent dated as of January 2004 to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
dated as of August 22, 2003
CHICAGO BRIDGE & IRON COMPANY
(DELAWARE), as a Subsidiary Borrower
By:
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
CB&I TYLER COMPANY, as a Subsidiary Borrower
By:
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
CBI SERVICES, INC., as a Subsidiary Borrower
By:
----------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Treasurer
CB&I CONSTRUCTORS, INC., as a Subsidiary
Borrower
By:
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
Signature Page to Amendment No. 1 and Consent dated as of January 2004 to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
dated as of August 22, 2003
BANK ONE, NA (having its principal office in
Chicago, Illinois), as Administrative Agent
and as a Lender
By:
----------------------------------------
Name:
Title:
BANK OF AMERICA, N.A., as Syndication Agent
and as a Lender
By:
----------------------------------------
Name:
Title:
BANK OF MONTREAL, as a Documentation Agent
and as a Lender
By:
----------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, ACTING THROUGH
ITS CAYMAN ISLANDS BRANCH, as a
Documentation Agent and as a Lender
By:
----------------------------------------
Name:
Title:
Signature Page to Amendment No. 1 and Consent dated as of January 2004 to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
dated as of August 22, 2003
XXXXX FARGO BANK TEXAS, N.A., as a Lender
By:
----------------------------------------
Name:
Title:
BNP PARIBAS, as a Lender
By:
----------------------------------------
Name:
Title:
FORTIS CAPITAL CORP., as a Lender
By:
----------------------------------------
Name:
Title:
SOUTHWEST BANK OF TEXAS, N.A., as a Lender
By:
----------------------------------------
Name:
Title:
WASHINGTON MUTUAL BANK, as a Lender
By:
----------------------------------------
Name:
Title:
Signature Page to Amendment No. 1 and Consent dated as of January 2004 to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
dated as of August 22, 2003
THE NORTHERN TRUST COMPANY, as a Lender
By:
----------------------------------------
Name:
Title:
KEYBANK NATIONAL ASSOCIATION, as a Lender
By:
----------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as a Lender
By:
----------------------------------------
Name:
Title:
REGIONS BANK, as a Lender
By:
----------------------------------------
Name:
Title:
ALLIED IRISH BANK, PLC, as a Lender
By:
----------------------------------------
Name:
Title:
Signature Page to Amendment No. 1 and Consent dated as of January 2004 to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
dated as of August 22, 2003
STANDARD CHARTERED BANK, as a Lender
By:
----------------------------------------
Name:
Title:
HIBERNIA NATIONAL BANK, as a Lender
By:
----------------------------------------
Name:
Title:
XXXXXX COMMERCIAL PAPER INC., as a Lender
By:
----------------------------------------
Name:
Title:
ARAB BANKING CORPORATION, as a Lender
By:
----------------------------------------
Name:
Title:
Signature Page to Amendment No. 1 and Consent dated as of January 2004 to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
dated as of August 22, 2003
REAFFIRMATION
Each of the undersigned hereby acknowledges receipt of a copy
of the foregoing Amendment No. 1 and Consent in connection with that certain
Three-Year Credit Agreement dated as of August 22, 2003 (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"Three-Year Credit Agreement"), and that certain Five-Year Credit Agreement
dated as of August 22, 2003 (as the same may be amended, restated, supplemented
or otherwise modified from time to time, the "Five-Year Credit Agreement," and,
together with the Three-Year Credit Agreement, the "Credit Agreements") by and
among Chicago Bridge and Iron Company N.V. (the "Company"), certain Subsidiaries
of the Company party thereto as Borrowers (the "Subsidiary Borrowers"), Bank
One, NA as Administrative Agent (the "Administrative Agent") under the Credit
Agreements and the lenders party to said Credit Agreements, which Amendment No.
1 and Consent is dated as of January 12, 2004 (the "Amendment and Consent").
Capitalized terms used in this Reaffirmation and not defined herein shall have
the meanings given to them in the Three-Year Credit Agreement. Without in any
way establishing a course of dealing by the Administrative Agent or any Lender,
each of the undersigned consents to the Amendment and Consent and reaffirms the
terms and conditions of the Guaranty and any other Loan Document executed by it
and acknowledges and agrees that such agreement and each and every such Loan
Document executed by the undersigned in connection with the Credit Agreements
remains in full force and effect and is hereby reaffirmed, ratified and
confirmed. All references to the Credit Agreements contained in the
above-referenced documents shall be a reference to the Credit Agreements as so
modified by the Amendment and Consent and as the same may from time to time
hereafter be amended, modified or restated.
CHICAGO BRIDGE & IRON COMPANY N.V.
By: CHICAGO BRIDGE & IRON COMPANY B.V.
Its: Managing Director
By
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
CHICAGO BRIDGE & IRON COMPANY
By
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
Signature Page to Amendment No. 1 and Consent dated as of January 2004 to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
dated as of August 22, 2003
CHICAGO BRIDGE & IRON COMPANY (DELAWARE)
By
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
CB&I TYLER COMPANY
By
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
CB&I CONSTRUCTORS, INC.
By
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
CBI SERVICES, INC.
By
--------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Treasurer
Signature Page to Amendment No. 1 and Consent dated as of January 2004 to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
dated as of August 22, 2003
XXXXXX CBI, LIMITED
By
--------------------------------
Name: Xxxxx X. House
Title: Treasurer
CBI VENEZOLANA, S.A.
By
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
CBI EASTERN ANSTALT
By
--------------------------------
Name: Xxxx X. Xxxxx
Title: Administrator
CBI CONSTRUCTORS PTY, LTD.
By
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Director
XXXXXXX FINANCE COMPANY B.V.
By
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
CB&I (EUROPE) B.V.
By
--------------------------------
Name: Xxx Xxxxxxx
Title: Director
Signature Page to Amendment No. 1 and Consent dated as of January 2004 to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
dated as of August 22, 2003
ARABIAN GULF MATERIAL SUPPLY COMPANY, LTD.
By
--------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
ASIA PACIFIC SUPPLY CO.
By
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
CBI COMPANY LTD.
By
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
CBI CONSTRUCCIONES S.A.
By
--------------------------------
Name: Antonio Medic
Title: Director
CBI CONSTRUCTORS LIMITED
By
--------------------------------
Name: Xxx Xxxxxxx
Title: Director
CBI HOLDINGS (U.K.) LIMITED
By
--------------------------------
Name: Xxx Xxxxxxx
Title: Director
Signature Page to Amendment No. 1 and Consent dated as of January 2004 to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
dated as of August 22, 2003
CBI OVERSEAS, LLC
By
--------------------------------
Name: Xxxx Xxxx Xxxx
Title: Treasurer
CENTRAL TRADING COMPANY, LTD.
By
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
CHICAGO BRIDGE & IRON (ANTILLES) N.V.
By
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
CHICAGO BRIDGE & IRON COMPANY B.V.
By
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
CMP HOLDINGS B.V.
By
--------------------------------
Name: Xxx Xxxxxxx
Title: Director
PACIFIC RIM MATERIAL SUPPLY COMPANY, LTD.
By
--------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
Signature Page to Amendment No. 1 and Consent dated as of January 2004 to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
dated as of August 22, 2003
XXXX-XXXXX INTERNATIONAL, L.L.C.
By
--------------------------------
Name: Xxxxx X. XxXxxxx III
Title: President and CEO
XXXX-XXXXX ENGINEERS, LTD.
By and through its General Partner,
Xxxx-Xxxxx Management, L.L.C.
By
--------------------------------
Name: Xxxxx X. XxXxxxx III
Title: President
XXXX-XXXXX HOLDINGS, L.L.C.
By
--------------------------------
Name: Xxxxx X. XxXxxxx III
Title: President and CEO
XXXX-XXXXX MANAGEMENT, L.L.C.
By
--------------------------------
Name: Xxxxx X. XxXxxxx III
Title: President
XXXX-XXXXX, X.X.
By and through its General Partner,
Xxxx-Xxxxx Management, L.L.C.
By
--------------------------------
Name: Xxxxx X. XxXxxxx III
Title: President
Signature Page to Amendment No. 1 and Consent dated as of January 2004 to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
dated as of August 22, 2003
MATRIX ENGINEERING, LTD.
By and through its General Partner,
Matrix Management Services, L.L.C.
By
--------------------------------
Name: Xxxxx X. XxXxxxx III
Title: Chairman of the Board and CEO
HBI HOLDINGS, L.L.C.
By
--------------------------------
Name: Xxxxx X. XxXxxxx III
Title: President and CEO
XXXX-XXXXX INTERNATIONAL MANAGEMENT, L.L.C.
By
--------------------------------
Name: Xxxxx X. XxXxxxx III
Title: Chairman of the Board and CEO
A&B BUILDERS, LTD.
By and through its General Partner,
Matrix Management Services, L.L.C.
By
--------------------------------
Name: Xxxxx X. XxXxxxx III
Title: Chairman of the Board and CEO
MATRIX MANAGEMENT SERVICES, L.L.C.
By
--------------------------------
Name: Xxxxx X. XxXxxxx III
Title: Chairman of the Board and CEO
Signature Page to Amendment No. 1 and Consent dated as of January 2004 to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
dated as of August 22, 2003
CALLIDUS TECHNOLOGIES INTERNATIONAL, L.L.C.
By
--------------------------------
Name: X. X. Xxxxxxxx
Title: President and CEO
CALLIDUS TECHNOLOGIES, L.L.C.
By
--------------------------------
Name: X. X. Xxxxxxxx
Title: President and CEO
CONSTRUCTORS INTERNATIONAL, L.L.C.
By
--------------------------------
Name: Xxxxx X. XxXxxxx III
Title: President and CEO
TPA XXXX-XXXXX, LTD.
By and through its General Partner,
Xxxx-Xxxxx Management, L.L.C.
By
--------------------------------
Name: Xxxxx X. XxXxxxx III
Title: President
SOUTHERN TROPIC MATERIAL SUPPLY COMPANY, LTD.
By
--------------------------------
Name: Xxxx X. Xxxxx
Title: Director
CB&I (NIGERIA) LIMITED
By
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Director
Signature Page to Amendment No. 1 and Consent dated as of January 2004 to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
dated as of August 22, 2003
CHICAGO BRIDGE & IRON (ESPANA) S.A.
By
--------------------------------
Name: Xxx Xxxxxxx
Title: Director
CBI (PHILLIPINES), INC.
By
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
CB&I XXXX XXXXX LIMITED
By
--------------------------------
Name: Xxx Xxxxxxxx
Title: Managing Director
XXXXX CONSTRUCTION GROUP, INC.
By
--------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Treasurer
CBI HUNGARY HOLDING LIMITED LIABILITY COMPANY
By
--------------------------------
Name: Xxx Xxxxxxx
Title: Managing Director
Signature Page to Amendment No. 1 and Consent dated as of January 2004 to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
dated as of August 22, 2003
