EX-10 2 k8amex.htm AMEND 3 TO 5 YR REVOLVING CREDIT AGREEMENT

 

EXECUTION COPY

 

 

 

AMENDMENT NO. 3 TO THE

FIVE YEAR REVOLVING CREDIT AGREEMENT

 

 

Dated as of January 11, 2008

 

AMENDMENT NO. 3 TO THE FIVE YEAR REVOLVING CREDIT AGREEMENT (this “Third Amendment”), among KBR HOLDINGS, LLC, a Delaware limited liability company (the “Borrower”), the banks, financial institutions and other institutional lenders parties to the Credit Agreement referred to below (collectively, the “Banks”), and Citibank, N.A., as paying agent (the “Agent”) for the Banks.

 

PRELIMINARY STATEMENTS

(1) The Borrower, the Banks and the Agent have entered into a Five Year Revolving Credit Agreement, dated as of December 16, 2005 (as amended, amended and restated, supplemented or otherwise modified through the date hereof, the “Credit Agreement”). Capitalized terms not otherwise defined in this Third Amendment have the same meanings as specified in the Credit Agreement.

(2) The Borrower and the Required Banks have agreed to amend the Credit Agreement as hereinafter set forth.

SECTION 1. Amendments to Credit Agreement. The Credit Agreement is, effective as of the date hereof and subject to the satisfaction of the conditions precedent set forth in Section 2, hereby amended as follows:

 

(a)

Section 2.19 (a) is amended by inserting immediately before the semi-colon the phrase “ and, in such notice to the Agent, indicate whether the Borrower wishes the Commitment Increase to be comprised in whole or in part from increases in the Revolving Credit Commitments of the Banks or from the Revolving Credit Commitments of one or more Eligible Assignees”.

 

(b)

Clauses (b) and (c) of Section 2.19 (b) are amended by deleting the clauses in their entirety and substituting therefor the following clauses:

“(b) In the event that the Borrower has indicated its wish for the Commitment Increase to be comprised in whole or in part from increases in the Revolving Credit Commitments of the Banks, the Agent shall promptly notify the Banks of a request by the Borrower for a Commitment Increase, which notice shall include (i) the proposed amount of such requested Commitment Increase, (ii) the proposed Increase Date and (iii) the date by which a Bank wishing to participate in the Commitment Increase must commit to an increase in the amount of their respective

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

Revolving Credit Commitments (the “Commitment Date”). In such event that the Borrower wishes the Commitment Increase to be in whole or in part from one or more Eligible Assignees, the Borrower may extend offers to one or more Eligible Assignees to so participate. Each such Bank and/or Eligible Assignee, as the case may be, shall, in its sole discretion, give written notice to the Agent on or prior to the Commitment Date of the amount by which it is willing to commit to such Commitment Increase.

(c) Promptly following each Commitment Date, the Agent shall notify the Borrower of the amount by which each Bank and/or Eligible Assignee, as the case may be, is willing to commit to such Commitment Increase, and the Borrower will promptly notify the Agent of the Commitment Increase that it wishes to allocate to such Bank (each an “Increasing Lender”) or Eligible Assignee (each such Eligible Assignee, an “Assuming Lender”), as the case may be; provided, however, that the Revolving Credit Commitment of each such Eligible Assignee shall be in an amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof. The Borrower, at its discretion, may withdraw its request for a Commitment Increase at any time prior to the Increase Date.”

 

(c)

Section 2.19 (d) is amended by deleting the entire phrase prior to the semi-colon and substituting therefor the following phrase:

“On each Increase Date, each Assuming Lender shall become a Bank party to this Agreement with a Revolving Credit Commitment, and the Revolving Credit Commitment of each Increasing Lender shall be increased by, in each case, the amount of the Commitment Increase allocated to it by the Borrower”.

 

(d)

Section 5.02 (g) is amended by deleting subsection (x) thereof and substituting subsection (x) in its entirety with the following:

“Borrower may declare and pay a dividend and/or purchase any of its Equity Interests in an aggregate amount not to exceed $400 million (such amount, as decreased by any such dividends and/or purchases, the “Distribution Cap”), provided that no such dividends or purchases shall be made from the proceeds of a Borrowing hereunder. In the event that the Borrower issues additional Equity Interests in the form of common stock after the Borrower shall have paid any such dividends and/or made any such purchases, the Distribution Cap shall be replenished by (i) the amount of the net cash proceeds of the issuance of any such Equity Interests and/or (ii) the amount of any portion of the purchase price for an Investment permitted by Section 5.02(f)(ii) paid by the issuance of any such Equity Interests, so long as, in the case of either of clauses (i) and (ii), the Distribution Cap does not exceed $400 million at any time. ”

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

SECTION 2. Conditions of Effectiveness. This Third Amendment shall become effective as of the date first above written when, and only when, the Agent shall have received counterparts of this Third Amendment executed by the Borrower and the Required Banks or, as to any of the Banks, advice satisfactory to the Agent that such Bank has executed this Third Amendment and the consent attached hereto executed by each Relevant Party (other than the Borrower). This Third Amendment is subject to the provisions of Section 8.01 of the Credit Agreement.

SECTION 3. Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:

(a)       the representations and warranties contained in each Loan Document are correct on and as of the date hereof (except (i) those representations and warranties contained in (A) Section 4.01(i) of the Credit Agreement to the extent such matters are subject to, and covered by, (x) the Indemnity Agreement and (y) the Disclosed Litigation, and (B) Section 4.01(f) of the Credit Agreement and (ii) those other representations and warranties that expressly relate solely to a specific earlier date, which shall remain correct as of such earlier date) after giving effect to this Third Amendment, as though made on and as of the date hereof; and

(b)       no event has occurred and is continuing, after giving effect to this Third Amendment, which constitutes a Default or an Event of Default.

SECTION 5. Reference to and Effect on the Loan Document.

(a)          On and after the effectiveness of this Third Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the Notes and each of the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as amended by this Third Amendment.

(b)          The Credit Agreement and each of the other Loan Documents, as specifically amended by this Third Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.

(c)          The execution, delivery and effectiveness of this Third Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Bank or the Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.

SECTION 6. Costs and Expenses. The Borrower agrees to pay on demand all costs and expenses of the Agent in connection with the preparation, execution, delivery and administration, modification and amendment of this Third Amendment and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees and expenses of counsel for the Agent) in accordance with the terms of Section 8.04 of the Credit Agreement.

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

SECTION 7. Execution in Counterparts. This Third Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Third Amendment by telecopier shall be effective as delivery of a manually executed counterpart of this Third Amendment.

SECTION 8. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.

[signature page follows]

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.

KBR HOLDINGS, LLC

 

 

By

/s/ Chip E. Schneider

 

Title: Vice President & Treasurer

 

CITIBANK, N.A.,

as Paying Agent and as Bank

 

 

By

/s/ James E. Reilly, Jr.  

 

Title: Attorney-in-Fact

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

ABU DHABI INTERNATIONAL BANK INC.

 

By: /s/ David J. Young

 

Name: David J. Young

 

Title: Vice President

 

By: /s/ Nagy S. Kolta

 

Name: Nagy S. Kolta

 

Title: Executive Vice President

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

AUSTRALIA AND NEW ZEALAND BANKING

 

GROUP LIMITED

 

By: /s/ Damodar Menon

 

Name: Damodar Menon

 

Title: Director

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

CITIBANK, N.A.

 

By: /s/ James F. Reilly, Jr.

 

Name: James F. Reilly, Jr.

 

Title: Attorney-in-Fact

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

CREDIT SUISSE, CAYMAN ISLANDS BRANCH

 

By: /s/ Vanessa Gomez

 

Name: Vanessa Gomez

 

Title: Director

 

By: /s/ Morenikeji Ajayi

 

Name: Morenikeji Ajayi

 

Title: Associate

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

HSBC SECURITIES (USA) INC.

 

By: /s/ Mercedes Ahumada

 

Name: Mercedes Ahumada

 

Title: Assistant Vice President

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

ING BANK N.V.

 

By: /s/ Rene Weijers

 

Name: Rene Weijers

 

Title: Managing Director

 

By: /s/ Russell Boon

 

Name: Russell Boon

 

Title: Senior Relationship Manager

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

JPMORGAN CHASE BANK, N.A.

 

By: /s/ Kevin J. Utsey

 

Name: Kevin J. Utsey

 

Title: Vice President

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

LEHMAN COMMERCIAL PAPER INC.

 

By: /s/ Maria M. Lund

 

Name: Maria M. Lund

 

Title: Authorized signatory

 

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

LLOYDS TSB BANK PLC

 

By: /s/ Mario Del Duca

 

Name: Mario Del Duca

 

Title: Assoc. Director, Corp. Banking USA

 

By: /s/ Windsor R. Davies

 

Name: Windsor R. Davies

 

Title: Managing Director, Corp. Banking USA

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

MERRILL LYNCH BANK USA

 

By: /s/ Louis Alder

 

Name: Louis Alder

 

Title: Director

 

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

MIZUHO CORPORATE BANK, LTD.

 

By: /s/ James R. Fayen

 

Name: James R. Fayen

 

Title: Deputy General Manager

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

NATIONAL BANK OF KUWAIT, S.A.K.

 

By: /s/ Robert J. McNeill

 

Name: Robert J. McNeill

 

Title: General Manager

 

By: /s/ Rex Richardson

 

Name: Rex Richardson

 

Title: Assistant General Manager

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

RAYMOND JAMES BANK, FSB

 

By: /s/ Joseph A. Ciccolini

 

Name: Joseph A. Ciccolini

 

Title: Vice President – Senior Corporate Banker

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

STANDARD CHARTERED BANK

 

By: /s/ Robert K. Redding

 

Name: AVP Credit Documentation

 

Title:

 

By: /s/ Richard L. Van de Geryle

 

Name: Richard L. Van de Geryle, Jr.

 

Title: Director

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

STATE STREET BANK AND TRUST COMPANY

 

By: /s/ Juan G. Sierra

 

Name: Juan G. Sierra

 

Title: Vice President

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

SUMITOMO MITSUI BANKING CORPORATION

 

By: /s/ Masakazu Hasegawa

 

Name: Masakazu Hasegawa

 

Title: Joint General Manager

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

THE BANK OF NOVA SCOTIA

 

By: /s/ D. G. Mills

 

Name: D. G. Mills

 

Title: Director, Head of Energy Execution

 

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

THE BANK OF TOKYO-MITSUBISHI, LTD. –

 

HOUSTON AGENCY

 

By: /s/ Kelton Glasscock

 

Name: Kelton Glasscock

 

Title: Vice President & Manager

 

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

THE ROYAL BANK OF SCOTLAND PLC

 

By: /s/ Brian J. Smith

 

Name: Brian J. Smith

 

Title: Vice President

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

UBS LOAN FINANCE LLC

 

By: /s/ Mary E. Evans

 

Name: Mary E. Evans

 

Title: Associate Director

 

By: /s/ Irja R. Otsa

 

Name: Irja R. Otsa

 

Title: Associate Director

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

 

WACHOVIA BANK, NATIONAL ASSOCIATION

 

By: /s/ Shawn Young

 

Name: Shawn Young

 

Title: Vice President

 

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3

 

 

CONSENT

 

Dated as of January 11, 2008

 

The undersigned, one of the Relevant Parties referred to in the Credit Agreement referred to in the foregoing Third Amendment, hereby consents to such Third Amendment and hereby confirms and agrees that notwithstanding the effectiveness of such Third Amendment, each Loan Document to which it is a party is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that, on and after the effectiveness of such Third Amendment, each reference in each Loan Document to the “Credit Agreement”, “thereunder”, “thereof” or words of like import shall mean and be a reference to the Credit Agreement, as amended by such Third Amendment .

KBR, INC.

KELLOGG BROWN & ROOT LLC (fka KELLOGG BROWN & ROOT, INC.)

KELLOGG BROWN & ROOT SERVICES, INC.

KELLOGG BROWN & ROOT

INTERNATIONAL, INC.

KELLOGG BROWN & ROOT, INC.

 

By: /s/ Chip E. Schneider

Name: Chip E. Schneider

Title: Vice President & Treasurer

 

KBR Five-Year Revolving Credit Agreement

Amendment No. 3