Exhibit 4.1
WAIVER AGREEMENT
This WAIVER AGREEMENT is made
and entered into this 2 nd day of
November, 2007, by and between Willbros Group, Inc., a Republic of
Panama corporation (the “Company”), and Portside Growth
and Opportunity Fund (“Portside”).
WHEREAS, the Company has duly issued
its 6.5% Convertible Senior Notes due 2012 in the aggregate
principal amount of $84,500,000 (the “Notes”) pursuant
to an Indenture (the “Indenture”) dated as of
December 23, 2005, among the Company, Willbros USA, Inc., a
Delaware corporation, as guarantor, and The Bank of New York, a New
York banking corporation (the “Trustee”);
WHEREAS, on May 16, 2007 and
May 23, 2007, the Company entered into conversion agreements
with four holders of the Notes pursuant to which, among other
things, the four holders converted their respective Notes into
shares of the Company’s common stock, $0.05 par value per
share;
WHEREAS, $32,050,000 in aggregate
principal amount of the Notes remain outstanding as of the date
hereof; and
WHEREAS, for the consideration and
under the terms and conditions set forth herein, Portside is
willing to consent to the temporary waiver and modification of
certain provisions of the Indenture substantially as set forth in
the form of First Supplemental Indenture attached hereto as Annex
I.
NOW, THEREFORE, in consideration of
the recitals and mutual covenants set forth or described herein,
the parties hereto, intending to be legally bound, hereby agree as
follows:
1.
Portside hereby represents and warrants to the Company that:
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(i) |
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Portside is the current holder of $19,500,000 in aggregate
principal amount of Notes; |
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(ii) |
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Portside has full power and authority to enter into this Waiver
Agreement; |
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(iii) |
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in evaluating whether to enter into this Waiver Agreement,
Portside has made its own independent appraisal of this Waiver
Agreement and the substance of the waiver set forth in the form of
First Supplemental Indenture attached hereto as Annex I and is not
relying on any statement, representation or warranty, express or
implied, made by the Trustee or the Company not contained in this
Waiver Agreement; and |
1
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(iv) |
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Portside is not a person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Company. |
The
representations and warranties of Portside herein shall be deemed
to be repeated and reconfirmed at the time the First Supplemental
Indenture is executed.
2. The
Company hereby represents and warrants to Portside that:
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(i) |
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The Company’s registration statement on Form S-1 (File
No. 333-135540) is effective and available for the resale of
the shares of Common Stock of the Company into which the Notes may
be converted; and |
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(ii) |
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after giving effect to the terms of this Waiver Agreement and
the First Supplemental Indenture, no Event of Default (as defined
in the Indenture) shall have occurred and be continuing as of the
date hereof. |
3.
Portside acknowledges that it is hereby giving its consent to the
modifications and amendments to the Indenture substantially in the
form and substance as set forth in the form of First Supplemental
Indenture, attached hereto as Annex I and with such changes thereto
as the Trustee may reasonably require, with respect to all
$19,500,000 in aggregate principal amount of its Notes.
4. This
Waiver Agreement shall become valid and binding upon Portside, and
shall not be revocable by Portside, upon (i) delivery of this
Waiver Agreement, executed by Portside, to the Company, (ii)
delivery of this Waiver Agreement, executed by the Company, to
Portside and (iii) delivery by the Company to Portside of
three hundred ninety thousand dollars ($390,000), by wire transfer
to one or more accounts designated by Portside. After the
deliveries described in the preceding sentence, the Company shall
offer to pay an aggregate of $251,000 to the holders of the other
Notes that remain outstanding as of the date hereof (each, an
“Other Holder” and, collectively, the “Other
Holders”), offering each Other Holder an amount equal to the
product of (a) $251,000 multiplied by (b) the aggregate
principal amount of such Other Holder’s Notes that remain
outstanding as of the date hereof divided by the aggregate
principal amount of all of the Other Holder’s Notes that
remain
