Chicago Bridge & Iron 8K Entry into a Material Definitive Agreement | SEC 28 Oct 15

EXHIBIT 2.5

AMENDMENT NO. 4 TO TERM LOAN AGREEMENT

This Amendment No. 4 to Term Loan Agreement (this “Amendment”), dated as of October 27, 2015, is made by and amongCHICAGO BRIDGE & IRON COMPANY N.V., a corporation organized under the laws of the Kingdom of the Netherlands (the “Company”),CHICAGO BRIDGE & IRON COMPANY (DELAWARE), a Delaware corporation (the “Borrower”),BANK OF AMERICA, N.A., a national banking association organized and existing under the laws of the United States (“Bank of America”), in its capacity as administrative agent for the Lenders (as defined in the Credit Agreement) (in such capacity, the “Administrative Agent”), and each of the Lenders signatory hereto.

W I T N E S S E T H:

WHEREAS, each of the Company, the Borrower, the Administrative Agent, and the Lenders have entered into that certain Term Loan Agreement dated as of December 21, 2012 (as amended by that certain Amendment No. 1 to the Term Loan Agreement dated as of October 28, 2013, Amendment No. 2 to the Term Loan Agreement dated as of December 31, 2014, Amendment No. 3 to the Term Loan Agreement, dated as of July 8, 2015, and as hereby amended and as from time to time further amended, modified, supplemented, restated, or amended and restated, the “Credit Agreement”; capitalized terms used in this Amendment not otherwise defined herein shall have the respective meanings given thereto in the Credit Agreement as amended hereby), pursuant to which the Lenders have made available to the Borrower a senior unsecured term loan credit facility in an original aggregate principal amount of $1,000,000,000; and

WHEREAS, the Company has entered into the Guaranty pursuant to which it has guaranteed certain or all of the obligations of the Borrower under the Credit Agreement and the other Loan Documents; and

WHEREAS, the Borrower has requested that the Administrative Agent and the Lenders agree to amend the Credit Agreement in certain respects, which the Administrative Agent and the Lenders party hereto are willing to do on the terms and conditions contained in this Amendment;

NOW, THEREFORE, in consideration of the premises and further valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

1.Amendments to Credit Agreement. Subject to the terms and conditions set forth herein, the Credit Agreement (exclusive of Schedules and Exhibits thereto) is amended as follows:

(a)Section 1.1 of the Credit Agreement is hereby amended by adding the following new definition in its proper alphabetical order:

‘“Project Bluefin” means, collectively, the acquisition by a direct, wholly owned subsidiary of Westinghouse Electric Company LLC (“WECLLC”) of all of the issued and outstanding shares of capital stock or membership interests of certain direct and indirect subsidiaries of the Company (the “Transferred Companies”) pursuant to that certain Purchase Agreement by and among the Company, the Transferred Companies, WECLLC and a direct, wholly owned subsidiary of WECLLC, as amended, and all transactions and Dispositions pursuant thereto and in connection therewith.”’

(b)Section 7.3(b) of the Credit Agreement is hereby amended by:

(1) removing the phrase “; and” at the end ofsubsection (v) and replacing it with “;”;

(2) restatingsubsection (vi) in its entirety to read as follows:

“(vi) Dispositions in connection with Project Bluefin; and”; and

(3) adding newsubsection (vii) to read in its entirety as follows:

“(vii) other leases, sales or other Dispositions of assets if such transaction (a) is for consideration consisting at least eighty percent (80%) of cash, (b) is for not less than fair market value (as determined in good faith by the Company’s board of directors), and (c) involves assets that, together with all other assets of the Company and its Subsidiaries previously leased, sold or disposed of (other than pursuant toclauses (i) through(vi) above) as permitted by thisSection 7.3(b) (x) during the twelve-month period ending with the month in which any such lease, sale or other disposition occurs, do not constitute a Substantial Portion of the assets of the Company and its Subsidiaries and (y) since the Closing Date do not exceed fifteen percent (15%) of consolidated tangible assets of the Company and its Subsidiaries, in each case when combined with all such other transactions during such period (each such transaction being valued at book value).”

(c)Section 7.4(a) of the Credit Agreement is hereby amended by adding the following proviso to the end of the first sentence of such subsection:

“;provided that for the period of four consecutive fiscal quarters ending December 31, 2015, March 31, 2016, June 30, 2016 and September 30, 2016, the Company shall not permit the Leverage Ratio to be greater than 3.25 to 1.00.”

(d)Section 7.4(c) of the Credit Agreement is hereby amended by restatingsubsection (c) in its entirety to read as follows:

“(c)Minimum Consolidated Net Worth. The Company shall not permit its Consolidated Net Worth at any time on or after September 30, 2015 to be less than the greater of (a) the sum of (i) seventy-five percent (75%) of the actual net worth of the Company and its Subsidiaries on a consolidated basis as of September 30, 2015plus (ii) fifty percent (50%) of the sum of Consolidated Net Income (if positive) earned in each fiscal quarter, commencing with the fiscal quarter ending on December 31, 2015, and (b) the minimum amount of Consolidated Net Worth that the Company shall be required to maintain under any instrument, agreement or indenture pertaining to any Material Indebtedness.”

2.Amendments to Compliance Certificate.Exhibit G to the Credit Agreement is hereby amended and restated in its entirety as set forth inAnnex I hereto.

3.Effectiveness; Conditions Precedent. This Amendment and the amendments to the Credit Agreement provided inSections 1 and2 hereof shall be effective as of the date first written above upon the satisfaction of the following conditions precedent:

(a) the Administrative Agent shall have received counterparts of this Amendment, duly executed by the Company, each Borrower, and the Required Lenders, which counterparts may be delivered by telefacsimile or other electronic means (including .pdf);

(b) the Administrative Agent shall have received satisfactory evidence of the execution and effectiveness of the Purchase Agreement by and among the Company, certain direct and indirect subsidiaries of the Company, Westinghouse Electric Company LLC and a direct, wholly owned subsidiary of Westinghouse Electric Company LLC related to Project Bluefin; and

(c) all fees and expenses of the Administrative Agent (including the fees and expenses of counsel to the Administrative Agent) to the extent due and payable underSection 11.7 of the Credit Agreement and for which invoices have been presented a reasonable period of time prior to the effectiveness hereof shall have been paid in full (which fees and expenses may be estimated to date without prejudice to final settling of accounts for such fees and expenses).

4.Representations and Warranties. In order to induce the Administrative Agent and the Lenders to enter into this Amendment, the Company represents and warrants to the Administrative Agent and the Lenders as follows:

(a) The representations and warranties made by the Company inArticle VI of the Credit Agreement are true and correct in all material respects on and as of the date hereof, except to the extent that such representations and warranties expressly relate to an earlier date;

(b) This Amendment has been duly authorized, executed and delivered by the Company and the Borrower and constitutes a legal, valid and binding obligation of such parties, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting the rights of creditors, and subject to equitable principles of general application; and

(c) After giving effect to this Amendment, no Default or Event of Default has occurred and is continuing, or would result from the effectiveness of this Amendment.

5.Consent of the Company. The Company hereby consents, acknowledges and agrees to the amendments and other matters set forth herein and hereby confirms and ratifies in all respects the Guaranty to which it is a party (including without limitation the continuation of the Company’s payment and performance obligations thereunder upon and after the effectiveness of this Amendment and the amendments, waivers and consents contemplated hereby) and the enforceability of the Guaranty against the Company in accordance with its terms.

6.Entire Agreement. This Amendment, together with all the Loan Documents (collectively, the “Relevant Documents”), sets forth the entire understanding and agreement of the parties hereto in relation to the subject matter hereof and supersedes any prior negotiations and agreements among the parties relating to such subject matter. No promise, condition, representation or warranty, express or implied, not set forth in the Relevant Documents shall bind any party hereto, and no such party has relied on any such promise, condition, representation or warranty. Each of the parties hereto acknowledges that, except as otherwise expressly stated in the Relevant Documents, no representations, warranties or commitments, express or implied, have been made by any party to the other in relation to the subject matter hereof or thereof. None of the terms or conditions of this Amendment may be changed, modified, waived or canceled orally or otherwise, except in writing and in accordance withSection 9.2 of the Credit Agreement.

7.Full Force and Effect of Credit Agreement. Except as hereby specifically amended, waived, modified or supplemented, the Credit Agreement is hereby confirmed and ratified in all respects and shall be and remain in full force and effect according to its respective terms.

8.Governing Law. This Amendment shall in all respects be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts executed and to be performed entirely within such State, and shall be further subject to the provisions ofSections 11.12 and11.13 of the Credit Agreement.

9.Enforceability. Should any one or more of the provisions of this Amendment be determined to be illegal or unenforceable as to one or more of the parties hereto, all other provisions nevertheless shall remain effective and binding on the parties hereto.

10.References. All references in any of the Loan Documents to the “Credit Agreement” shall mean the Credit Agreement, as amended hereby.

11.Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the Company, the Borrower, the Administrative Agent and each of the Guarantors and Lenders, and their respective successors, legal representatives, and assignees to the extent such assignees are permitted assignees as provided inSection 14.1 of the Credit Agreement.

12.No Novation. Neither the execution and delivery of this Amendment nor the consummation of any other transaction contemplated hereunder is intended to constitute a novation of the Credit Agreement or of any of the other Loan Documents or any obligations thereunder.

13.Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by telecopy or other electronic means (including .pdf) shall be effective as delivery of a manually executed counterpart of this Amendment.

14.FATCA. For purposes of determining withholding Taxes imposed under the Foreign Account Tax Compliance Act (FATCA), from and after the effective date of this Amendment, it is understood and agreed that the Administrative Agent may treat (and the Lenders hereby authorize the Administrative Agent to treat) the Loans as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).

15.Acknowledgment of Release. Pursuant toSection 12.10 of the Credit Agreement, the Administrative Agent hereby acknowledges the release of each of CB&I Contractor’s Inc. (f/k/a Shaw Constructors, Inc.), CB&I Stone & Webster Construction, Inc. (f/k/a Stone & Webster Construction, Inc.), CB&I Stone & Webster, Inc. (f/k/a Stone & Webster, Inc.) and CB&I Stone & Webster Asia, Inc. (f/k/a Stone & Webster Asia, Inc.) from its obligations under the Guaranty concurrent with, and conditioned upon, the consummation of Project Bluefin.

[Signature pages follow.]

IN WITNESS WHEREOF, the parties hereto have caused this instrument to be made, executed and delivered by their duly authorized officers as of the day and year first above written.


BORROWER:

CHICAGO BRIDGE & IRON COMPANY (Delaware),
as the Borrower

By:		/s/ Michael S. Taff
		Name: Michael S. Taff
		Title: Authorized Signatory

[Amendment No. 4 to Term Loan Agreement]


COMPANY:

CHICAGO BRIDGE & IRON COMPANY N.V.

By:		CHICAGO BRIDGE & IRON COMPANY B.V., its Managing Director

By:		/s/ Michael S. Taff
		Name: Michael S. Taff
		Title: Authorized Signatory

[Amendment No. 4 to Term Loan Agreement]


ADMINISTRATIVE AGENT:

BANK OF AMERICA, N.A., as Administrative Agent

By:		/s/ Bridgett J. Manduk Mowry
		Name: Bridgett J. Manduk Mowry
		Title: Vice President

Chicago Bridge & Iron