THIS WAIVER NO. 4
is being executed and delivered as of May 31, 2006, 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 ”),
JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA) as
Administrative Agent (the “ Administrative Agent
”) under the hereinafter identified and defined Credit
Agreement and the lenders party to said Credit Agreement. All
capitalized terms used herein without definition shall have the
same meanings as set forth in the Credit Agreement.
WHEREAS, the
Company, the Subsidiary Borrowers, the Lenders and the
Administrative Agent are currently party to that certain Amended
and Restated Credit Agreement dated as of May 12, 2005 (as the
same may be amended, restated, supplemented or otherwise modified
from time to time, the “ Credit Agreement
”);
WHEREAS, the
Borrowers have requested the Lenders and the Administrative Agent
to waive certain provisions of the Credit Agreement in certain
respects;
WHEREAS, the
Lenders and the Agent have agreed to waive certain provisions of
the Credit Agreement on the terms and conditions set forth in
Section 1 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.
Waiver . The Borrowers have informed the Lenders that
Defaults or Unmatured Defaults have occurred and are continuing, or
are about to occur, under Sections 7.1(A)(i)(a), 7.1(A)(ii),
7.1(A)(iii), 7.1(A)(iv), 8.1(B) and 8.1(C) of the Credit Agreement
as a result of the Company’s failure to timely (a) file
with the Commission its financial results and related documents for
the third and fourth quarters of its 2005 fiscal year, for its 2005
fiscal year and for the first quarter of its 2006 fiscal year and
(b) deliver to the Administrative Agent and the Lenders the
financial reports (including without limitation the plan and
forecast) and related documents required under the Credit Agreement
for or during such periods (collectively, the “ Specified
Defaults ”). In accordance with the provisions of
Section 9.2(i) of the Credit Agreement, the Borrowers have
requested that, subject to the terms hereof, the Required Lenders
waive the Specified Defaults and waive the application of the
default rate of interest provided under Section 2.10 of the
Credit Agreement. The Required Lenders hereby agree to such limited
waiver and furthermore agree that, solely during the period
commencing on November 14, 2005 and ending at the end of the
Waiver Period (as defined below) and notwithstanding anything
contained in Sections 2.1(A), 2.2(A), 3.2, 3.4, 3.5(A) and
other applicable Sections of the Credit Agreement to the contrary,
(x) Section 5.3(B) of the Credit Agreement shall not be
deemed to
apply to the
representations and warranties contained in Sections 6.4 and
6.10 of the Credit Agreement insofar as such Sections relate to the
Company’s internally prepared financial statements (and
related statements, reports, certificates and documents) for its
four fiscal quarter period ending December 31, 2005, which
have been delivered to the Lenders in connection with the prior
Waivers and the draft September 30, 2005 Form 10-Q and the
draft December 31, 2005 Form 10-K which are being delivered to
the Lenders in connection with this Waiver (collectively, the
“ Unaudited Statements ”) and the financial
information (and related statements, reports, certificates and
documents) which the Company has delivered to the Lenders on or
prior to December 31, 2005 and which the Company is currently
in the process of investigating as disclosed to the Lenders,
(y) the last sentence of Section 5.3 of the Credit
Agreement shall not be applicable and (z) the Company and the
Administrative Agent may agree to such modifications to the forms
(as set forth in the applicable Exhibits to the Credit Agreement)
of Borrowing/Election Notice, request for the issuance of a Letter
of Credit and compliance certificate as are reasonably deemed
appropriate by the Company and the Administrative Agent to give
effect to the foregoing clauses (x) and (y); provided
that this waiver shall (i) only remain in effect during
the period (the “ Waiver Period ”) commencing on
the date hereof and expiring on the earlier of (a) the
occurrence of any Default or Unmatured Default other than one of
the Specified Defaults and (b) the Waiver Expiration Date and
(ii) be subject to the receipt by the Administrative Agent of
evidence satisfactory to it that the requisite number of
noteholders party to the Note Purchase Agreement have duly executed
and delivered an agreement to substantially the same effect as this
waiver agreement such that no default, event of default or
unmatured default would exist under the Note Purchase Agreement
during the Waiver Period. As used herein, “ Waiver
Expiration Date ” means (a) September 30, 2006
with respect to the “plan and forecast” described in
Section 7.1(A)(iv) of the Credit Agreement and
(b) June 16, 2006 with respect to all other financial
statements and reports required under the Credit Agreement.
Furthermore, the parties hereto agree that from and after the date
hereof until the earlier of the end of the Waiver Period and the
date of delivery to the Administrative Agent and the Lenders of the
financial statements which are the subject of the Specified
Defaults, for purposes of calculating the Applicable Floating Rate
Margin, Applicable Eurodollar Margin, Applicable L/C Fee Percentage
and Applicable Commitment Fee Percentage under
Section 2.14(D)(ii), the Leverage Ratio shall be determined
based upon the Unaudited Statements.
Pursuant to the
provisions of Section 9.3 of the Credit Agreement, (a) no
delay or omission of the Lenders or the Administrative Agent to
exercise any right under the Loan Documents shall impair such right
or be construed to be a waiver of any Default or Unmatured Default
or an acquiescence therein, and the making of a Loan or the
issuance of a Letter of Credit notwithstanding the existence of a
Default or the inability of the Company or any other Borrower to
satisfy the conditions precedent to such Loan or issuance of such
Letter of Credit shall not constitute any waiver or acquiescence
and (b) any single or partial exercise of any such right shall
not preclude other or further exercise thereof or the exercise of
any other right, and no waiver, amendment or other variation of the
terms, conditions or provisions of the Loan Documents whatsoever
shall be valid unless in writing signed by the requisite number of
Lenders required pursuant to Section 9.2, and then only to the
extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law as a result of the
Specified Defaults are hereby reserved on behalf of the
Administrative Agent and the Lenders following the Waiver
Period.
2.
Conditions of Effectiveness . This Waiver shall be deemed to
have become effective as of the date hereof, but such effectiveness
shall be subject to the following conditions: (a) the
Administrative Agent shall have received (i) executed
counterparts of this Waiver duly executed and delivered by the
Company, the Subsidiary Borrowers and the Required Lenders and
executed counterparts of the Reaffirmation attached hereto duly
executed and delivered by the Subsidiary Guarantors and
(ii) the Unaudited Statements and (b) the Company shall
have paid to the Administrative Agent, for the 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 for each such consenting Lender.
3.
Representation and Warranties . Each Borrower hereby
represents and warrants that, other than in connection with the
Specified Defaults, (i) all of the representations and
warranties contained in Article VI of the 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 in
connection with the Specified Defaults, (i) the execution,
delivery and effectiveness of this Waiver shall neither operate as
a waiver of any rights, power or remedy of the Administrative
Agen
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