United states securities and exchange commission

EXHIBIT C-2
FORM OF INITIAL B LOAN NOTE
FOR VALUE RECEIVED, the undersigned (the “ Borrower ”) hereby promises to pay to ______________________ or its registered assigns (the “ Lender ”), in accordance with the provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Initial B Loan (as defined in the Credit Agreement) from time to time made by the Lender to the Borrower under that certain Second Lien Credit Agreement, dated as of August 9, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ;” the terms defined therein being used herein as therein defined), among BABCOCK & WILCOX ENTERPRISES, INC., a Delaware corporation, as the borrower thereunder, the Lender and the Administrative Agent.

The Borrower promises to pay interest on the unpaid principal amount of each Initial B Loan from the date of such Initial B Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Credit Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Credit Agreement for such unpaid amount.

This Initial B Note is one of the Notes referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Initial B Note is also entitled to the benefits of the Guaranty and is secured by the Collateral. Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Initial B Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement. Initial B Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Initial B Note and endorse thereon the date, amount and maturity of its Initial B Loan and payments with respect thereto.

In accordance with the Credit Agreement, the Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Initial B Note.

The execution and delivery of this Initial B Note shall not constitute a novation of any indebtedness or other obligations owing to any Lender, the Administrative Agent or any other Secured Party under the Credit Agreement or any other Loan Document based on facts or events occurring or existing prior to the execution and delivery of this Initial B Note.

THIS INITIAL B NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

IN WITNESS WHEREOF, I have executed this Note on the date first written above.

	BABCOCK & WILCOX ENTERPRISES, INC. By:     Name:     Title:

    

EXHIBIT C-3
FORM OF DELAYED DRAW NOTE
FOR VALUE RECEIVED, the undersigned (the “ Borrower ”) hereby promises to pay to ______________________ or its registered assigns (the “ Lender ”), in accordance with the provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Delayed Draw Loan (as defined in the Credit Agreement) from time to time made by the Lender to the Borrower under that certain Second Lien Credit Agreement, dated as of August 9, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ;” the terms defined therein being used herein as therein defined), among BABCOCK & WILCOX ENTERPRISES, INC., a Delaware corporation, as the borrower thereunder, the Lender and the Administrative Agent.

The Borrower promises to pay interest on the unpaid principal amount of each Delayed Draw Loan from the date of such Delayed Draw Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Credit Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Credit Agreement for such unpaid amount.

This Delayed Draw Note is one of the Notes referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Delayed Draw Note is also entitled to the benefits of the Guaranty and is secured by the Collateral. Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Delayed Draw Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement. Delayed Draw Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Delayed Draw Note and endorse thereon the date, amount and maturity of its Delayed Draw Loan and payments with respect thereto.

In accordance with the Credit Agreement, the Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Delayed Draw Note.

The execution and delivery of this Delayed Draw Note shall not constitute a novation of any indebtedness or other obligations owing to any Lender, the Administrative Agent or any other
    

Secured Party under the Credit Agreement or any other Loan Document based on facts or events occurring or existing prior to the execution and delivery of this Delayed Draw Note.

THIS DELAYED DRAW NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

IN WITNESS WHEREOF, I have executed this Note on the date first written above.

	BABCOCK & WILCOX ENTERPRISES, INC. By:     Name:     Title:

    

EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE

Financial Statement Date:

To:    Lightship Capital LLC, as Administrative Agent

Ladies and Gentlemen:

Reference is made to that certain Second Lien Credit Agreement, dated as of August 9, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ;” the terms defined therein being used herein as therein defined), among BABCOCK & WILCOX ENTERPRISES, INC., a Delaware corporation, as the borrower thereunder, the Lenders and the Administrative Agent.

The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the [Chief Financial Officer/Treasurer] of the Borrower, and that, as such, he/she is authorized to execute and deliver this Compliance Certificate to the Administrative Agent on behalf of the Borrower in his or her capacity as a Responsible Officer of the Borrower and not in his or her individual capacity, and that:

1.      [Use following paragraph 1 for fiscal year-end financial statements]

The Borrower has delivered the year-end consolidated audited financial statements required by Section 6.01(b) of the Credit Agreement for the Fiscal Year ended as of the above date, together with the report and opinion of Borrower’s Accountant required by such section.

2.      [Use following paragraph 2 for fiscal quarter-end financial statements]

The Borrower has delivered the consolidated unaudited financial statements required by Section 6.01(a) of the Credit Agreement for the Fiscal Quarter ended as of the above date. Such financial statements fairly present in all material respects the consolidated financial position of the Borrower and its Subsidiaries as at such date and the results of operations and cash flows of the Borrower and its Subsidiaries for the periods indicated in accordance with GAAP (subject only to normal year-end audit adjustments and the absence of footnotes).

3.      The undersigned has reviewed and is familiar with the terms of the Credit Agreement and has made, or has caused to be made under his/her supervision, a reasonably detailed review of the transactions and consolidated condition (financial or otherwise) of the Borrower and its Subsidiaries during the accounting period covered by such financial statements.

4.      A review of the activities of the Borrower and its Subsidiaries during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Borrower and its Subsidiaries performed and observed all their respective Obligations under the Loan Documents,

[select one:]

[to the best knowledge of the undersigned, during such fiscal period each of the Borrower and its Subsidiaries performed and observed each covenant and condition of the Loan Documents applicable to it, and no Default has occurred and is continuing.]

—or—

[to the best knowledge of the undersigned, during such fiscal period the following covenants or conditions have not been performed or observed and the following is a list of each Default and its nature and status:]

5.      The financial covenant analyses and information set forth on Annex A attached hereto are true and accurate on and as of the date of this Compliance Certificate.

    

IN WITNESS WHEREOF , the undersigned has executed this Compliance Certificate as of the date first written above.

	BABCOCK & WILCOX ENTERPRISES, INC. By:     Name:     Title:

EXHIBIT E-1
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this “ Assignment and Assumption ”) is dated as of the Effective Date set forth below and is entered into by and between the Assignor identified in item 1 below (the “ Assignor ”) and the Assignee identified in item 2 below (the “ Assignee ”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below, receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.

For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (a) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below and (b) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (a) above (the rights and obligations sold and assigned by the Assignor to the Assignee pursuant to clauses (a) and (b) above being referred to herein collectively as the “ Assigned Interest ”). Each such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.

6.      Assignors :

7.      Assignee : [for each Assignee, indicate [Affiliate][Approved Fund] of [ identify Lender ]]

8.      Borrower : Babcock & Wilcox Enterprises, Inc.

9.      Administrative Agent : Lightship Capital LLC, as the administrative agent under the Credit Agreement

10.      Credit Agreement : Second Lien Credit Agreement, dated as of August 9, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ;” the terms defined therein being used herein as therein defined), among the Borrower, the Lenders and the Administrative Agent

11.      Assigned Interests in the Commitment :

Aggregate Amount of Initial Loan Commitment/Initial Loans for all Lenders		Amount of Initial Loan Commitment/Initial Loans Assigned		Percentage Assigned of Initial Loan Commitment/Initial Loans		CUSIP Number
Aggregate Amount of Delayed Draw Commitment/Delayed Draw Loans for all Lenders		Amount of Delayed Draw Commitment/Delayed Draw Loans Assigned		Percentage Assigned of Delayed Draw Commitment/Delayed Draw Loans		CUSIP Number

12.      [Trade Date:] Effective Date: ____________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]

    

The terms set forth in this Assignment and Assumption are hereby agreed to:

ASSIGNOR
[NAME OF ASSIGNOR]
By:
Name:
Title:
ASSIGNEE
By:
Name:
Title:

[Consented to and] Accepted:
LIGHTSHIP CAPITAL LLC, as Administrative Agent
By:
Name:
Title:
[Consented to:
BABCOCK & WILCOX ENTERPRISES, INC.
By:
Name:
Title:				]