Exhibit 10
FIFTH AMENDMENT AND WAIVER
This Fifth Amendment and Waiver (this "Amendment") dated as of March 31,
2006, 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, the Third Amendment and Waiver dated as of November 23, 2005, and
the Fourth Amendment and Waiver dated as of December 21, 2006, among the
Company, the Designated Subsidiaries from time to time (the Company 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 believes that it will fail to timely deliver its
audited annual financial statements for the year ended December 31, 2005,
together with the required accounting firm opinion and the certificates
contemplated by Sections 8.1(a) and 8.2(a), respectively, of the Credit
Agreement (such financial statements and accompanying opinion and certificates
referred to collectively herein as the "2005 Year-End Financials"), and the
Company has advised the Banks that the accounting firm opinion required under
Section 8.1(a), when delivered, will not have been prepared by a "nationally
recognized independent public accounting firm" as required under such Section
8.1(a);
WHEREAS, for fiscal quarter ending December 31, 2005, the aggregate Capital
Expenditures of the Obligors was approximately US$9,422,0000, and as a result
the Company has failed to comply with its covenant in Section 9.21 to not permit
the Obligors' aggregate Capital Expenditures for such fiscal quarter to exceed
US$7,500,000 in the aggregate (the "Capital Expenditures Default"), but the
Company expects the aggregate Capital Expenditures of the Obligors for fiscal
quarter ending March 31, 2006 to be not more than US$7,500,000, less than the
permitted expenditures of up to US$10,000,000 for such quarter.
WHEREAS, the Company has requested the Banks (i) to waive the Event of
Default that will occur as a result of its failure to timely deliver the 2005
Year-End Financials; (ii) to waive the Capital Expenditures Default; and (iii)
to amend certain provisions of the Credit Agreement; and the Banks have agreed
to such waivers, amendments, and consent, 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. Waivers. The Banks hereby agree to waive, as of the Amendment
Effective Date described in Section 3 below, (i) the Event of Default that will
be caused by the Company's failure to timely deliver the 2005 Year-End
Financials, provided such waiver will terminate unless the 2005 Year-End
Financials are delivered to the Agent by no later than June 22, 2006, and such
delivery has been confirmed by the Agent to the Borrower and the Banks on or
before such date; and (ii) the Capital Expenditures Default. The express waivers
set forth in this Section 1 are the only waivers 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 and the Credit Documents remain
unchanged.
Section 2. Amendments of Credit Agreement. The Credit Agreement is hereby
amended, as of the Amendment Effective Date described in Section 3 below, as
follows:
(a) Section 1.01. The definition of the term "GAAP" in Section 1.01 of
the Credit Agreement is hereby amended by deleting the language "the
independent accountants of recognized national standing regularly retained
by such Person" and substituting "the independent accountants regularly
retained by such Person" therefor.
(b) Section 8.1(a). Section 8.1(a) of the Credit Agreement is hereby
amended by deleting the language "KPMG Peat Marwick or another nationally
recognized independent public accounting firm" and substituting "GLO CPAs,
LLP or another independent public accounting firm acceptable to the Agent"
therefor.
(c) Section 9.20. Clauses (vi), (vii) and (viii) of Section 9.20 of
the Credit Agreement are hereby amended by restating such clauses in their
entirety as follows:
(vi) $18,000,000, for the period beginning on October 1, 2005 and
ending on March 31, 2006, (vii) $20,000,000, for the period beginning
on October 1, 2005 and ending on April 30, 2006, and (viii)
$22,000,000, for the period beginning on October 1, 2005 and ending on
May 31, 2006.
(d) Section 9.21. Clause (ii) of Section 9.21 of the Credit Agreement
is hereby amended by restating such clause in its entirety as follows:
(ii) for the period of two fiscal quarters ending March 31, 2006, to
exceed $17,500,000 in the aggregate.
Section 3. 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 received
the following:
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(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), 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 4. Amendment and Ratification. Upon the Amendment Effective Date,
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 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.
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.
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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, Chief
Financial Officer and Treasurer
WILLBROS U.S.A., INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Treasurer
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WILLBROS INTERNATIONAL, INC.,
WILLBROS WEST AFRICA, INC.,
WILLBROS MIDDLE EAST, INC.
WILLBROS MARINE ASSETS, INC.
INTERNATIONAL PIPELINE EQUIPMENT, INC.,
WILLBROS CONSTRUCTORS, INC., and
WILLBROS MSI CANADA INC.
By: /s/ Gay Xxxxxxx Xxxxxx
------------------------------------
Name: Gay Xxxxxxx Xxxxxx
Title: Treasurer
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WILLBROS (NIGERIA) LIMITED and
WILLBROS (OFFSHORE) NIGERIA LIMITED
By: /s/ Gay Xxxxxxx Xxxxxx
------------------------------------
Name: Gay Xxxxxxx Xxxxxx
Title: Authorized Representative
CONSTRUCTORA CAMSA, C.A. and
ESCA EQUIPMENT SERVICE C.A.
By: /s/ Gay Xxxxxxx Xxxxxx
------------------------------------
Name: Gay Xxxxxxx Xxxxxx
Title: Attorney-in-Fact
WILLBROS ENERGY SERVICES COMPANY,
WILLBROS MT. WEST, INC. (individually
and as successor by merger to Willbros
Pacific Industrial Electric, Inc.),
WILLBROS GOVERNMENT SERVICES, INC.
(f/k/a Willbros Operating Services
Inc.),
WILLBROS RPI, INC., and
WILLBROS PROCESS ELECTRIC AND CONTROL,
INC.
By: /s/ Gay Xxxxxxx Xxxxxx
------------------------------------
Name: Gay Xxxxxxx Xxxxxx
Title: Vice President and Treasurer
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[SIGNATURE PAGE TO FIFTH AMENDMENT]
WILLBROS TRANSANDINA S.A.
By: /s/ Gay Xxxxxxx Xxxxxx
------------------------------------
Name: Gay Xxxxxxx Xxxxxx
Title: Alternate Director
WILLBROS ENGINEERS, INC. (individually
and as successor by merger to Willbros
Engineers SLC, Inc.)
By: /s/ Gay Xxxxxxx Xxxxxx
------------------------------------
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: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
ISSUING BANK:
CALYON NEW YORK BRANCH (formerly known
as Credit Lyonnais New York Branch)
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
LEAD ARRANGER AND
BOOK RUNNER:
CALYON NEW YORK BRANCH (formerly known
as Credit Lyonnais New York Branch)
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
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BANKS:
CALYON NEW YORK BRANCH (formerly known
as Credit Lyonnais New York Branch)
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
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ABU DHABI INTERNATIONAL BANK INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
----------------------------------
Title: Vice President
---------------------------------
By: /s/ Xxxx S. Kolfa
------------------------------------
Name: Xxxx S. Kolfa
----------------------------------
Title: Executive Vice President
---------------------------------
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ARAB BANKING CORPORATION (B.S.C.)
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
----------------------------------
Title: General Manager
---------------------------------
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
----------------------------------
Title: VP Head of Credit
---------------------------------
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THE BANK OF NOVA SCOTIA
By: /s/ X. Xxxxxx
------------------------------------
Name: X. Xxxxxx
Title: Assistant Agent
[SIGNATURE PAGE TO FIFTH AMENDMENT]
BANK OF TEXAS, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
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COMMERCEBANK, N.A.
By: /s/ Xxxxx Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx Ramesh
----------------------------------
Title: Vice President -- Oil & Gas Banking
---------------------------------
By: /s/ Xxxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxx
----------------------------------
Title: Senior Vice President & Manager -- Houston
---------------------------------
[SIGNATURE PAGE TO FIFTH AMENDMENT]
JPMORGAN CHASE BANK
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO FIFTH AMENDMENT]
NATEXIS BANQUES POPULAIRES
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President and Manager
By: /s/ Xxxxx X. Xxxxxxx, III
------------------------------------
Name: Xxxxx X. Xxxxxxx, III
Title: Vice President and Manager
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RZB FINANCE, LLC
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
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AMEGY BANK NATIONAL ASSOCIATION
(formerly known as Southwest Bank of
Texas, NA)
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
[SIGNATURE PAGE TO FIFTH AMENDMENT]
