United states securities and exchange commission
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This Amendment is a Loan Document (and the Borrower and the other Loan Parties agree that the “Obligations” secured by the Collateral shall include any and all obligations of the Loan Parties under this Amendment). Except as expressly modified hereby, all terms and provisions of the Credit Agreement and all other Loan Documents remain in full force and effect and nothing contained in this Amendment shall in any way impair the validity or enforceability of the Credit Agreement or the Loan Documents, or alter, waive, annul, vary, affect, or impair any provisions, conditions, or covenants contained therein or any rights, powers, or remedies granted therein. This Amendment shall not constitute a modification of the Credit Agreement or any of the other Loan Documents or a course of dealing with Administrative Agent or the Lenders at variance with the Credit Agreement or the other Loan Documents such as to require further notice by Administrative Agent or any Lender to require strict compliance with the terms of the Credit Agreement and the other Loan Documents in the future, except in each case as expressly 22 set forth herein. The Borrower acknowledges and expressly agrees that Administrative Agent and the Lenders reserve the right to, and do in fact, require strict compliance with all terms and provisions of the Credit Agreement and the other Loan Documents (subject to any qualifications set forth therein), as amended herein.
This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Except as provided in Section 4 above, this Amendment shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Amendment by facsimile, electronic email or other electronic imaging means ( e.g ., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Amendment.
THIS AMENDMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. Sections 10.04, 10.14 and 10.15 of the Credit Agreement are hereby incorporated by herein by this reference.
If any provision of this Amendment is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Amendment shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
All references in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement and each reference to the “Credit Agreement”, (or the defined term “Agreement”, “thereunder”, “thereof” of words of like import referring to the Credit Agreement) in the other Loan Documents shall mean and be a reference to the Credit Agreement as amended hereby and giving effect to the amendments contained in this Amendment. All references in the Collateral Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Collateral Agreement and each reference to the “Collateral Agreement”, (or the defined term “Agreement”, “thereunder”, “thereof” of words of like import referring to the Collateral Agreement) in the other Loan Documents shall mean and be a reference to the Collateral Agreement as amended hereby and giving effect to the amendments contained in this Amendment. 23
This Amendment shall be binding upon the Borrower, the Lenders and the Administrative Agent and their respective successors and assigns, and shall inure to the benefit of the Borrower, the Lenders and the Administrative Agent and the respective successors and assigns of the Borrower, the Lenders and the Administrative Agent.
Each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder (including, without limitation, the Restricted Payment contemplated by Section 7.05(h) of the Credit Agreement, as amended by this Amendment) to be consented to or approved by or acceptable or satisfactory to a Lender, unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto. [ Signature pages follow ] 24 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. BABCOCK & WILCOX ENTERPRISES, INC. By: /s/ Orville Lunking Name: Orville Lunking Title: Vice President & Treasurer Acknowledged and Agreed for purposes of Sections 2, 3, 6, 7 and 9 of the Amendment: AMERICON EQUIPMENT SERVICES, INC. AMERICON, LLC BABCOCK & WILCOX CONSTRUCTION CO., LLC BABCOCK & WILCOX EBENSBURG POWER, LLC BABCOCK & WILCOX EQUITY INVESTMENTS, LLC BABCOCK & WILCOX HOLDINGS, INC. BABCOCK & WILCOX INDIA HOLDINGS, INC. BABCOCK & WILCOX INTERNATIONAL SALES AND SERVICE CORPORATION BABCOCK & WILCOX INTERNATIONAL, INC. BABCOCK & WILCOX MEGTEC HOLDINGS, INC. BABCOCK & WILCOX MEGTEC, LLC BABCOCK & WILCOX SPIG, INC. BABCOCK & WILCOX TECHNOLOGY, LLC BABCOCK & WILCOX UNIVERSAL, INC. DELTA POWER SERVICES, LLC DIAMOND OPERATING CO., INC. DIAMOND POWER AUSTRALIA HOLDINGS, INC. DIAMOND POWER CHINA HOLDINGS, INC. DIAMOND POWER EQUITY INVESTMENTS, INC. DIAMOND POWER INTERNATIONAL, LLC DPS ANSON, LLC DPS BERLIN, LLC DPS CADILLAC, LLC DPS FLORIDA, LLC DPS GREGORY, LLC DPS MECKLENBURG, LLC DPS PIEDMONT, LLC By: /s/ Robert P. McKinney Name: Robert P. McKinney Title: Assistant Secretary
Name: Robert P. McKinney Title: Assistant Secretary
Name: Robert P. McKinney Title: Assistant Secretary
By: /s/ Bridgett J. Manduk Mowry Name: Bridgett J. Manduk Mowry Title: Vice President [Babcock & Wilcox Enterprises, Inc. Amendment No. 3 to Credit Agreement Signature Page] Lenders: BANK OF AMERICA, N.A., as Lender and Swing Line Lender By: /s/ Stefanie Tanwar Name: Stefanie Tanwar Title: Vice President [Babcock & Wilcox Enterprises, Inc. Amendment No. 3 to Credit Agreement Signature Page] BNP Paribas, as Lender By: /s/ Todd Rodgers Name: Todd Rodgers Title: Director By: /s/ Mary-Ann Wong Name: Mary-Ann Wong Title: Vice President [Babcock & Wilcox Enterprises, Inc. Amendment No. 3 to Credit Agreement Signature Page] JPMORGAN CHASE BANK, N.A., as Lender By: /s/ Antje B. Focke Name: Antje B. Focke Title: Executive Director [Babcock & Wilcox Enterprises, Inc. Amendment No. 3 to Credit Agreement Signature Page] WELLS FARGO BANK, N.A., as Lender By: /s/ Reginald T. Dawson Name: Reginald T. Dawson Title: Senior Vice President [Babcock & Wilcox Enterprises, Inc. Amendment No. 3 to Credit Agreement Signature Page] UNICREDIT BANK AG, NEW YORK BRANCH, as a Lender By: /s/ Michael D. Novellino Name: Michael D. Novellino Title: Director By: /s/ Scott Obeck Name: Scott Obeck Title: Director [Babcock & Wilcox Enterprises, Inc. Amendment No. 3 to Credit Agreement Signature Page] TD BANK, N.A., as a Lender By: /s/ Craig Welch Name: Craig Welch Title: Senior Vice President [Babcock & Wilcox Enterprises, Inc. Amendment No. 3 to Credit Agreement Signature Page] COMPASS BANK DBA BBVA COMPASS, as Lender By: /s/ Khoa Duong Name: Khoa Duong Title: Senior Vice President [Babcock & Wilcox Enterprises, Inc. Amendment No. 3 to Credit Agreement Signature Page] U.S. BANK NATIONAL ASSOCIATION, as a Lender By: /s/ William J. Umscheid Name: William J. Umscheid Title: Senior Vice President [Babcock & Wilcox Enterprises, Inc. Amendment No. 3 to Credit Agreement Signature Page] THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Lender By: /s/ Lauren Hom Name: Lauren Hom Title: Director [Babcock & Wilcox Enterprises, Inc. Amendment No. 3 to Credit Agreement Signature Page] CITIZENS BANK OF PENNSYLVANIA, as a Lender By: /s/ Jeffrey Mills Name: Jeffrey Mills Title: Vice President [Babcock & Wilcox Enterprises, Inc. Amendment No. 3 to Credit Agreement Signature Page] BRANCH BANKING AND TRUST COMPANY, as a Lender By: /s/ Ian Phillips Name: Ian Phillips
[Babcock & Wilcox Enterprises, Inc. Amendment No. 3 to Credit Agreement Signature Page] THE NORTHERN TRUST COMPANY, as a Lender By: /s/ Robert P. Veltman Name: Robert P. Veltman Title: VP [Babcock & Wilcox Enterprises, Inc. Amendment No. 3 to Credit Agreement Signature Page] THE BANK OF NOVA SCOTIA, as a Lender By: /s/ John Pagazani Name: John Pagazani Title: Director By: /s/ Justin Mitges Name: Justin Mitges Title: Senior Manager [Babcock & Wilcox Enterprises, Inc. Amendment No. 3 to Credit Agreement Signature Page] PNC BANK, NATIONAL ASSOCIATION, as a Lender By: /s/ Mark Starnes Name: Mark Starnes Title: Vice President [Babcock & Wilcox Enterprises, Inc. Amendment No. 3 to Credit Agreement Signature Page] CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender By: /s/ Yuriy A. Tsyganov Name: Yuriy A. Tsyganov Title: Director [Babcock & Wilcox Enterprises, Inc. Amendment No. 3 to Credit Agreement Signature Page] EXHIBIT A Specified Volund Counterparties
Exhibit 10.2 EXECUTION VERSION Published CUSIP Number: SECOND LIEN CREDIT AGREEMENT dated as of August 9, 2017 among BABCOCK & WILCOX ENTERPRISES, INC., as the Borrower, LIGHTSHIP CAPITAL LLC , as Administrative Agent, and LIGHTSHIP CAPITAL LLC as Lender and
The Other Lenders party hereto from time to time TABLE OF CONTENTS Section Page ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS 1 1.01 Defined Terms 1 1.02 Other Interpretive Provisions 29 1.03 Accounting Terms 30 1.04 Rounding 31 1.05 [Reserved]. 31 1.06 [Reserved] 31 1.07 Times of Day; Rates 31 ARTICLE II. THE COMMITMENTS AND BORROWINGS 31 2.01 The Loans 31 2.02 Borrowings of Loans 32 2.03 [Reserved] 32 2.04 [Reserved] 32 2.05 Prepayments 32 2.06 Termination or Reduction of Commitments 35 2.07 Repayment of Loans 35 2.08 Interest 35 2.09 [Reserved] 36 2.10 Computation of Interest and Fees 36 2.11 Evidence of Debt 36 2.12 Payments Generally; Administrative Agent’s Clawback 37 2.13 Sharing of Payments by Lenders 38 2.14 [Reserved] 39 2.15 [Reserved] 39 2.16 [Reserved] 39 2.17 Prepayment Premium. 39 ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY 39 3.01 Taxes 39 i TABLE OF CONTENTS (continued) Section Page ARTICLE IV. CONDITIONS PRECEDENT 43 4.01 Conditions to Closing Date 43 4.02 Conditions to Funding of Delayed Draw Loan 46 ARTICLE V. REPRESENTATIONS AND WARRANTIES 47 5.01 Corporate Existence, Compliance with Law 47 5.02 Corporate Power; Authorization; Enforceable Obligations 47 5.03 Ownership of Borrower; Subsidiaries 48 5.04 Financial Statements 49 5.05 Material Adverse Change 49 5.06 Solvency 49 5.07 Litigation 50 5.08 Taxes 50 5.09 Full Disclosure 50 5.10 Margin Regulations 50 5.11 No Burdensome Restrictions; No Defaults 50 5.12 Investment Company Act 50 5.13 Use of Proceeds 51 5.14 Insurance 51 5.15 Labor Matters 51 5.16 ERISA 51 5.17 Environmental Matters 52 5.18 Intellectual Property 53 5.19 Title; Real Property 53 5.20 Security Instruments 54 5.21 OFAC 54 5.22 Anti-Corruption Laws 55 5.23 EEA Financial Institutions 55 5.24 Budget 55 ARTICLE VI. AFFIRMATIVE COVENANTS 55 6.01 Financial Statements 55 ii TABLE OF CONTENTS (continued) Section Page 6.02 Collateral Reporting Requirements 57 6.03 Default and Certain Other Notices 57 6.04 Litigation 58 6.05 Labor Relations 58 6.06 Tax Returns 58 6.07 Insurance 58 6.08 ERISA Matters 58 6.09 Environmental Matters 59 6.10 Patriot Act Information 59 6.11 Other Information 60 6.12 Preservation of Corporate Existence, Etc 60 6.13 Compliance with Laws, Etc 60 6.14 Conduct of Business 60 6.15 Payment of Taxes, Etc 60 6.16 Maintenance of Insurance 60 6.17 Access 61 6.18 Keeping of Books 61 6.19 Maintenance of Properties, Etc 61 6.20 Application of Proceeds 61 6.21 Environmental 61 6.22 Additional Collateral and Guaranties 63 6.23 Real Property 64 6.24 Further Assurances 64 6.25 Anti-Corruption Laws; Sanctions 65 6.26 [Reserved]. 65 6.27 Post Closing 65 ARTICLE VII. NEGATIVE COVENANTS 66 7.01 Indebtedness 66 7.02 Liens 68 7.03 Investments 69 iii TABLE OF CONTENTS (continued) Section Page 7.04 Asset Sales 71 7.05 Restricted Payments 72 7.06 Fundamental Changes 72 7.07 Change in Nature of Business 73 7.08 Transactions with Affiliates 73 7.09 Burdensome Agreements 74 7.10 [Reserved]. 74 7.11 Fiscal Year 74 7.12 Use of Proceeds 74 7.13 Sale Leasebacks 74 7.14 No Speculative Transactions 74 7.15 Anti-Corruption Laws 75 7.16 Financial Covenants 75 7.17 Sanctions 76 7.18 Anti-Layering. 76 7.20 Additional Charges. 76 7.21 Capital Expenditures 77 ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES 77 8.01 Events of Default 77 8.02 Remedies Upon Event of Default 78 8.03 Application of Funds 79 ARTICLE IX. ADMINISTRATIVE AGENT 79 9.01 Appointment and Authority 79 9.02 Rights as a Lender 80 9.03 Exculpatory Provisions 80 9.04 Reliance by Administrative Agent 81 9.05 Delegation of Duties 82 9.06 Resignation of Administrative Agent 82 9.07 Non-Reliance on Administrative Agent and Other Lenders 83 9.08 [Reserved]. 83 iv Yüklə 2,11 Mb. Dostları ilə paylaş:
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