EXHIBIT 10.23b
EXHIBIT 10.24a
EXECUTION COPY
AMENDMENT NO. 2 AND CONSENT
THIS AMENDMENT NO. 2 AND CONSENT is being executed and delivered as
of May 13, 2004, 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"), Bank One, NA as Administrative Agent (the "Administrative Agent")
under the hereinafter identified and defined Credit Agreements and certain of
the lenders party to said Credit Agreements. All capitalized terms used herein
without definition shall have the same meanings as set forth in the hereinafter
identified and defined Three-Year Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Company, the Subsidiary Borrowers, the Lenders and the
Administrative Agent are currently party to that certain Three-Year Credit
Agreement dated as of August 22, 2003 (as amended, restated, supplemented or
otherwise modified from time to time, the "Three-Year Credit Agreement"), and
that certain Five-Year Credit Agreement dated as of August 22, 2003 (as amended,
restated, supplemented or otherwise modified from time to time, the "Five-Year
Credit Agreement," and, together with the Three-Year Credit Agreement, the
"Credit Agreements");
WHEREAS, Chicago Bridge & Iron Company, a Delaware corporation and a
Subsidiary Borrower (the "Issuer"), desires to enter into a transaction (the
"Convertible Note Offering") pursuant to which (i) the Issuer will issue, and
incur and maintain Indebtedness under, certain Convertible Senior Notes due 2024
in an aggregate principal amount not to exceed $172,500,000, such Convertible
Senior Notes being convertible into common shares of the Company and as
otherwise described in Schedule I hereto (the "Convertible Notes") and (ii) the
Company and certain Subsidiaries will guarantee the Indebtedness under the
Convertible Notes;
WHEREAS, the Company has informed the Administrative Agent and the
Lenders of its desire to prepay all of the Company's Indebtedness (accompanied
by the payment of all accrued interest thereon and all related make-whole
premiums) under the Note Purchase Agreement (the "Private Note Prepayment," and,
together with the Convertible Note Offering, the "Transactions");
WHEREAS, the Company has requested that, notwithstanding anything
contained in the Credit Agreements, the Lenders consent (the "Consent") to the
Transactions; and
WHEREAS, the Lenders party hereto are willing to grant the Consent
on the terms and conditions stated herein;
WHEREAS, the Borrowers have also requested the Lenders and the
Administrative Agent to amend the Credit Agreements in certain other respects;
WHEREAS, the Lenders and the Administrative Agent have agreed to
amend the Credit Agreements on the terms and conditions set forth in section 2
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. Consent. The Lenders party hereto hereby grant the Consent;
provided that (a) the Private Note Prepayment is consummated in full within 35
days of the date of the Convertible Note Offering and (b) the aggregate amount
of the make-whole premiums effected in connection with the Private Note
Prepayment does not exceed $8,000,000. The parties hereto acknowledge and agree
that, upon the effectiveness of this Amendment No. 2 and Consent and subject to
the continued effectiveness of the foregoing Consent, the Credit Agreements
(including without limitation Sections 7.3(A), 7.3(E) and 7.3(S)) shall be
deemed amended to permit, in addition to the matters otherwise permitted
thereunder, the Transactions.
2. Amendments. Each Credit Agreement shall be and hereby is
amended as follows:
(a) Section 1.1 is amended to insert the following new defined
terms thereto:
"Convertible Notes" is defined in the Second Amendment.
"Convertible Note Documents" means the Convertible Notes, the
indenture entered into in connection therewith and any and all
instruments and documents related to the foregoing.
"Note Documents" means the Convertible Note Documents and the
Note Purchase Agreement.
"Private Note Prepayment" is defined in the Second Amendment.
"Second Amendment" means that certain Amendment No. 2 and
Consent dated as of May 13, 2004 by and among the Borrowers,
the Lenders party thereto and the Administrative Agent.
(b) Section 1.1 is further amended to amend and restate the
following definitions appearing therein:
"Callidus Sale" is defined in the First Amendment, except that
(i) the reference to "$12,000,000" appearing therein shall be
deemed a reference to "$13,000,000" and (ii) the reference to
"June 30, 2004" appearing therein shall be deemed a reference
to "July 31, 2004".
"Consolidated Fixed Charges" means, for any period, the sum of
(i) Consolidated Long-Term Lease Rentals for such period and
(ii) consolidated interest expense of the Company and its
Subsidiaries (including capitalized interest and the interest
component of Capitalized Leases) for such period; but
excluding therefrom the aggregate amount of interest paid as
part of the Private Note Prepayment.
"EBIT" means, for any period, on a consolidated basis for the
Company and its Subsidiaries, the sum of the amounts for such
period, without duplication, calculated in each case in
accordance with Agreement Accounting Principles, of (i) Net
Income, plus (ii) Interest Expense to the extent deducted in
computing Net Income, plus (iii) charges against income for
foreign, federal, state and local taxes to the extent deducted
in computing Net Income, plus (iv) any other non-recurring
non-cash charges (excluding any such non-cash charges to the
extent any such non-cash charge becomes, or is expected to
become, a cash charge in a later period) to the extent
deducted in computing Net Income, plus (v) extraordinary
losses incurred other than in the ordinary course of business
to the extent deducted in computing Net Income, plus (vi) up
to $8,000,000 of the aggregate amount of the one-time
nonrecurring make-whole premium paid as part of the Private
Note Prepayment, minus (vii) any non-recurring non-cash
credits to the extent added in computing Net Income, minus
(viii) extraordinary gains realized other than in the ordinary
course of business to the extent added in computing Net
Income.
(c) Section 1.1 is further amended to amend the definition of
"Adjusted Indebtedness" by adding the following sentence at the end
thereof:
"In addition, solely during the period commencing on the date
of the Convertible Note Offering and ending (x) 35 days
thereafter or (y) if earlier, the date the Private Note
Prepayment is consummated in full Adjusted Indebtedness will
exclude, for purposes of calculating the Leverage Ratio, the
Indebtedness outstanding under the Note Purchase Agreement."
(d) Section 1.1 is further amended to amend the definitions of
"Contractual Obligations" and "Restricted Payments" by deleting the
references to "the Note Purchase Agreement" appearing therein and
substituting "any of the Note Documents" in lieu thereof.
(e) Section 7.2(K)(iii) is amended to delete the references to
"the Note Purchase Agreement" appearing therein and substitute "any of the
Note Documents" in lieu thereof.
(f) Section 7.3(A)(ix) is amended to delete the reference to
"$10,000,000" appearing therein and substitute "$12,000,000" in lieu
thereof.
(g) The former Section 7.3(A)(x) is renumbered as Section
7.3(A)(xi) and is amended to delete the reference to "(other than
Indebtedness incurred pursuant to clauses (i), (ii), (iv), (v), (vi),
(vii), (viii) and (ix) of this Section 7.3(A)" appearing therein and
substitute "(other than Indebtedness incurred pursuant to clauses (i),
(ii), (iv), (v), (vi), (vii), (viii), (ix) and (x) of this Section 7.3(A)"
in lieu thereof.
(h) A new Section 7.3(A)(x) is inserted to read as follows:
"Indebtedness outstanding under the Convertible Notes; and"
(i) Section 7.3(S) is amended to delete the reference to "(other
than permitted Restricted Payments listed on Schedule 7.3(S))" and insert
"(other than permitted Restricted Payments listed on Schedule 7.3(S) and
the Private Note Prepayment)" in lieu thereof.
(j) Section 7.3(T) is amended to delete the references to "Note
Purchase Agreement" and "the Note Purchase Agreement" appearing therein
and substitute "any of the Note Documents" in lieu thereof.
3. Conditions of Effectiveness. This Amendment No. 2 and Consent
shall be deemed to have become effective as of the date hereof, but such
effectiveness shall be subject to the conditions specified in the proviso
contained in Section 1 hereof and the following conditions: (i) the
Administrative Agent shall have received executed counterparts hereto duly
executed and delivered by the Company, the Subsidiary Borrowers and the
"Required Lenders" (under each of the Credit Agreements); (ii) the Convertible
Note Offering shall have been consummated on terms and conditions satisfactory
to the Administrative Agent; and (iii) no Default or Unmatured Default shall
have occurred and remain unwaived or uncured.
4. Representations, Warranties and Covenants. Each Borrower
hereby represents and warrants that (i) all of the representations and
warranties contained in Article VI of each Credit Agreement are true and correct
and (ii) no Default or Unmatured Default is in effect. Each Borrower hereby
covenants and agrees to deliver to the Administrative Agent, as soon as
practicable after the date hereof, counterparts to the Reaffirmation attached
hereto duly executed by the Subsidiary Guarantors.
5. No Implicit Waiver. Except as expressly set forth herein, (i)
the execution, delivery and effectiveness of this Amendment No. 2 and Consent
shall neither operate as a waiver of any rights, power or remedy of the
Administrative Agent or the Lenders under the Credit Agreements or any other
documents executed in connection with the Credit Agreements, nor constitute a
waiver of any provision of the Credit Agreements nor any other document executed
in connection therewith and (ii) the Credit Agreements shall remain in full
force and effect in accordance with their original terms.
6. GOVERNING LAW. THE ADMINISTRATIVE AGENT ACCEPTS THIS AMENDMENT
NO. 2 AND CONSENT, ON BEHALF OF ITSELF AND THE LENDERS, AT CHICAGO, ILLINOIS BY
ACKNOWLEDGING AND AGREEING TO IT THERE. ANY DISPUTE BETWEEN ANY BORROWER AND THE
ADMINISTRATIVE AGENT OR ANY LENDER ARISING OUT OF, CONNECTED WITH, RELATED TO,
OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH,
THIS CONSENT AND AMENDMENT, THE CREDIT AGREEMENTS OR ANY OF THE OTHER LOAN
DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING SECTION 735 ILCS
105/5-1 ET SEQ.
BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE
OF ILLINOIS.
[Signature Pages Follow]
IN WITNESS WHEREOF, this Amendment No. 2 and Consent has been duly
executed as of the day and year first above written.
CHICAGO BRIDGE & IRON COMPANY N.V., as the
Company
By: CHICAGO BRIDGE & IRON COMPANY B.V.
Its: Managing Director
By:-----------------------------------------
Name: Gerald M. Glenn
Title: Managing Director
Signature Page to Amendment No. 2 and Consent to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
CHICAGO BRIDGE & IRON COMPANY
(DELAWARE), as a Subsidiary Borrower
By:-----------------------------------------
Name: Richard A. Byers
Title: Vice President and Treasurer
CB&I TYLER COMPANY, as a Subsidiary Borrower
By:-----------------------------------------
Name: Richard A. Byers
Title: Vice President and Treasurer
CBI SERVICES, INC., as a Subsidiary Borrower
By:-----------------------------------------
Name: Terrence G. Browne
Title: Treasurer
CB&I CONSTRUCTORS, INC., as a Subsidiary
Borrower
By:-----------------------------------------
Name: Richard A. Byers
Title: Vice President and Treasurer
Signature Page to Amendment No. 2 and Consent to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
BANK ONE, NA (having its principal office in
Chicago, Illinois), as Administrative Agent
and as a Lender
By:-----------------------------------------
Name:
Title::
BANK OF AMERICA, N.A., as Syndication Agent
and as a Lender
By:-----------------------------------------
Name:
Title::
BANK OF MONTREAL, as a Documentation Agent
and as a Lender
By:-----------------------------------------
Name:
Title::
CREDIT SUISSE FIRST BOSTON, ACTING THROUGH
ITS CAYMAN ISLANDS BRANCH, as a Documentation
Agent and as a Lender
By:-----------------------------------------
Name:
Title::
Signature Page to Amendment No. 2 and Consent to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
WELLS FARGO BANK, N.A., as a Lender
By:-----------------------------------------
Name:
Title::
BNP PARIBAS , as a Lender
By:-----------------------------------------
Name:
Title::
By:-----------------------------------------
Name:
Title::
FORTIS CAPITAL CORP., as a Lender
By:-----------------------------------------
Name:
Title::
SOUTHWEST BANK OF TEXAS, N.A., as a Lender
By:-----------------------------------------
Name:
Title::
Signature Page to Amendment No. 2 and Consent to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
WASHINGTON MUTUAL BANK, as a Lender
By:-----------------------------------------
Name:
Title::
THE NORTHERN TRUST COMPANY, as a Lender
By:-----------------------------------------
Name:
Title::
KEYBANK NATIONAL ASSOCIATION, as a Lender
By:-----------------------------------------
Name:
Title::
JPMORGAN CHASE BANK, as a Lender
By:-----------------------------------------
Name:
Title::
Signature Page to Amendment No. 2 and Consent to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
REGIONS BANK, as a Lender
By:-----------------------------------------
Name:
Title::
ALLIED IRISH BANK, PLC, as a Lender
By:-----------------------------------------
Name:
Title::
STANDARD CHARTERED BANK, as a Lender
By:-----------------------------------------
Name:
Title::
HIBERNIA NATIONAL BANK, as a Lender
By:-----------------------------------------
Name:
Title::
LEHMAN COMMERCIAL PAPER INC., as a Lender
By:-----------------------------------------
Name:
Title::
Signature Page to Amendment No. 2 and Consent to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
ARAB BANKING CORPORATION, as a Lender
By:-----------------------------------------
Name:
Title::
By:-----------------------------------------
Name:
Title::
Signature Page to Amendment No. 2 and Consent to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
REAFFIRMATION
Each of the undersigned hereby acknowledges receipt of a copy of the
foregoing Amendment No. 2 and Consent in connection with that certain Three-Year
Credit Agreement dated as of August 22, 2003 (as amended, restated, supplemented
or otherwise modified from time to time, the "Three-Year Credit Agreement"), and
that certain Five-Year Credit Agreement dated as of August 22, 2003 (as amended,
restated, supplemented or otherwise modified from time to time, the "Five-Year
Credit Agreement," and, together with the Three-Year Credit Agreement, the
"Credit Agreements") by and among Chicago Bridge and Iron Company N.V. (the
"Company"), certain Subsidiaries of the Company party thereto as Borrowers (the
"Subsidiary Borrowers"), Bank One, NA as Administrative Agent (the
"Administrative Agent") under the Credit Agreements and the lenders party to
said Credit Agreements, which Amendment No. 2 and Consent is dated as of May 13,
2004 (the "Amendment and Consent"). Capitalized terms used in this Reaffirmation
and not defined herein shall have the meanings given to them in the Three-Year
Credit Agreement. Without in any way establishing a course of dealing by the
Administrative Agent or any Lender, each of the undersigned consents to the
Amendment and Consent and reaffirms the terms and conditions of the Guaranty and
any other Loan Document executed by it and acknowledges and agrees that such
agreement and each and every such Loan Document executed by the undersigned in
connection with the Credit Agreements remains in full force and effect and is
hereby reaffirmed, ratified and confirmed. All references to the Credit
Agreements contained in the above-referenced documents shall be a reference to
the Credit Agreements as so modified by the Amendment and Consent and as the
same may from time to time hereafter be amended, modified or restated.
CHICAGO BRIDGE & IRON COMPANY N.V.
By: CHICAGO BRIDGE & IRON COMPANY B.V.
Its: Managing Director
By -----------------------------------
Name: Gerald M. Glenn
Title: Managing Director
CHICAGO BRIDGE & IRON COMPANY
a Delaware corporation
By -----------------------------------
Name: Richard A. Byers
Title: Vice President and Treasurer
Signature Page to Amendment No. 2 and Consent to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
CHICAGO BRIDGE & IRON COMPANY (DELAWARE)
By --------------------------------
Name: Richard A. Byers
Title: Vice President and Treasurer
CB&I TYLER COMPANY
By --------------------------------
Name: Richard A. Byers
Title: Vice President and Treasurer
CB&I CONSTRUCTORS, INC.
By --------------------------------
Name: Richard A. Byers
Title: Vice President and Treasurer
CBI SERVICES, INC.
By --------------------------------
Name: Terrence G. Browne
Title: Treasurer
CHICAGO BRIDGE & IRON COMPANY
an Illinois corporation
By --------------------------------
Name: Richard A. Byers
Title: Vice President and Treasurer
Signature Page to Amendment No. 2 and Consent to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
HORTON CBI, LIMITED
By --------------------------------
Name: James W. House
Title: Treasurer
CBI VENEZOLANA, S.A.
By --------------------------------
Name: Mario D. Marquez
Title: Vice President
CBI EASTERN ANSTALT
By --------------------------------
Name: John R. Edmonds
Title: Administrator
CBI CONSTRUCTORS PTY, LTD.
By --------------------------------
Name: Vassily J. Calligeros
Title: Director
LEALAND FINANCE COMPANY B.V.
By --------------------------------
Name: Timothy J. Moran
Title: Managing Director
CB&I (EUROPE) B.V.
By --------------------------------
Name: Ray Buckley
Title: Director
Signature Page to Amendment No. 2 and Consent to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
ARABIAN GULF MATERIAL SUPPLY COMPANY, LTD.
By --------------------------------
Name: Harold Paul Mercer
Title: Vice President
ASIA PACIFIC SUPPLY CO.
By -------------------------------
Name: Richard A. Byers
Title: Vice President and Treasurer
CBI COMPANY LTD.
By --------------------------------
Name: Richard A. Byers
Title: Treasurer
CBI CONSTRUCCIONES S.A.
By --------------------------------
Name: Rick P. Nieland
Title: Director
CBI CONSTRUCTORS LIMITED
By --------------------------------
Name: Ray Buckley
Title: Director
CBI HOLDINGS (U.K.) LIMITED
By --------------------------------
Name: Ray Buckley
Title: Director
Signature Page to Amendment No. 2 and Consent to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
CBI OVERSEAS, LLC
By --------------------------------
Name: Wong Keem Ming
Title: Treasurer
CENTRAL TRADING COMPANY, LTD.
By --------------------------------
Name: Richard A. Byers
Title: Vice President and Treasurer
CHICAGO BRIDGE & IRON (ANTILLES) N.V.
By --------------------------------
Name: Gerald M. Glenn
Title: Managing Director
CHICAGO BRIDGE & IRON COMPANY B.V.
By --------------------------------
Name: Gerald M. Glenn
Title: Managing Director
CMP HOLDINGS B.V.
By --------------------------------
Name: Ray Buckley
Title: Director
PACIFIC RIM MATERIAL SUPPLY COMPANY, LTD.
By --------------------------------
Name: Harold Paul Mercer
Title: Director
Signature Page to Amendment No. 2 and Consent to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
HOWE-BAKER INTERNATIONAL, L.L.C.
By --------------------------------
Name: James R. McAdory III
Title: President and CEO
HOWE-BAKER ENGINEERS, LTD.
By --------------------------------
Name: James R. McAdory III
Title: President
HOWE-BAKER HOLDINGS, L.L.C.
By --------------------------------
Name: James R. McAdory III
Title: President and CEO
HOWE-BAKER MANAGEMENT, L.L.C.
By -------------------------------
Name: James R. McAdory III
Title:President
MATRIX ENGINEERING, LTD.
By and through its General Partner,
Matrix Management Services, L.L.C
By --------------------------------
Name: James R. McAdory III
Title: Chairman of the Board and CEO
Signature Page to Amendment No. 2 and Consent to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
HBI HOLDINGS, L.L.C.
By --------------------------------
Name: James R. McAdory III
Title: President and CEO
HOWE-BAKER INTERNATIONAL MANAGEMENT, L.L.C.
By --------------------------------
Name: James R. McAdory III
Title: Chairman of the Board and CEO
A&B BUILDERS, LTD.
By and through its General Partner,
Matrix Management services, L.L.C.
By --------------------------------
Name: James R. McAdory III
Title: Chairman of the Board and CEO
MATRIX MANAGEMENT SERVICES, L.L.C.
By --------------------------------
Name: James R. McAdory III
Title: Chairman of the Board and CEO
CONSTRUCTORS INTERNATIONAL, L.L.C.
By --------------------------------
Name: James R. McAdory III
Title: President and CEO
SOUTHERN TROPIC MATERIAL SUPPLY COMPANY, LTD.
By --------------------------------
Name: Harold Paul Mercer
Title: Director
Signature Page to Amendment No. 2 and Consent to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
CB&I (NIGERIA) LIMITED
By --------------------------------
Name: John R. Edmonds
Title: Director
CHICAGO BRIDGE & IRON (ESPANA) S.A.
By --------------------------------
Name: Ray Buckley
Title: Director
CBI (PHILLIPINES), INC.
By --------------------------------
Name: Alan R. Black
Title: Treasurer
CB&I JOHN BROWN LIMITED
By --------------------------------
Name: Colin L. Astin
Title: Director
MORSE CONSTRUCTION GROUP, INC.
By --------------------------------
Name: Terrence G. Browne
Title: Treasurer
CBI HUNGARY HOLDING LIMITED LIABILITY COMPANY
By --------------------------------
Name: Ray Buckley
Title: Managing Director
Signature Page to Amendment No. 2 and Consent to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement
CALLIDUS TECHNOLOGIES, L.L.C.
By --------------------------------
Name: W. P. Bartlett
Title: President and CEO
CALLIDUS TECHNOLOGIES INTERNATIONAL, L.L.C.
By --------------------------------
Name: W. P. Bartlett
Title: President and CEO
CBI LUXEMBOURG S.A.R.L.
By --------------------------------
Name: Ray Buckley
Title: Managing Director
CB&I FINANCE COMPANY LIMITED
By --------------------------------
Name: Alan R. Black
Title: Managing Director
Signature Page to Amendment No. 2 and Consent to
Chicago Bridge & Iron Company N.V. et al
Three-Year Credit Agreement and Five-Year Credit Agreement