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 Docum
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