United states securities and exchange commission

EXHIBIT H-1
FORM OF U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Second Lien Credit Agreement, dated as of August 9, 2017 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among BABCOCK & WILCOX ENTERPRISES, INC., a Delaware corporation, as the borrower thereunder (the “ Borrower ”), the Lenders, and LIGHTSHIP CAPITAL LLC, as Administrative Agent.

Pursuant to the provisions of Section 3.01(f) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF LENDER]
By:
Name:
Title:

Date: ____________, 20[ ]
 


EXHIBIT H-2
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Second Lien Credit Agreement, dated as of August 9, 2017 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”) among BABCOCK & WILCOX ENTERPRISES, INC., a Delaware corporation, as the borrower thereunder (the “ Borrower ”), the Lenders, and LIGHTSHIP CAPITAL LLC, as Administrative Agent.

Pursuant to the provisions of Section 3.01(f) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF PARTICIPANT]
By:
Name:
Title:

Date: ____________, 20[ ]

 

EXHIBIT H-3
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Second Lien Credit Agreement, dated as of August 9, 2017 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among BABCOCK & WILCOX ENTERPRISES, INC., a Delaware corporation, as the borrower thereunder (the “ Borrower ”), the Lenders, and LIGHTSHIP CAPITAL LLC, as Administrative Agent.

Pursuant to the provisions of Section 3.01(f) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect to such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its direct or indirect partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
 

[NAME OF PARTICIPANT]
By:
Name:
Title:

Date: ____________, 20[ ]

EXHIBIT H-4
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Second Lien Credit Agreement, dated as of August 9, 2017 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among BABCOCK & WILCOX ENTERPRISES, INC., a Delaware corporation, as the borrower thereunder (the “ Borrower ”), the Lenders, and LIGHTSHIP CAPITAL LLC, as Administrative Agent.

Pursuant to the provisions of Section 3.01(f) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its direct or indirect partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
 

[NAME OF LENDER]
By:
Name:
Title:

Date: ____________, 20[ ]

EXHIBIT I
PERFECTION CERTIFICATE
PERFECTION CERTIFICATE

Dated: August 9, 2017

Reference is made to (i) the Credit Agreement, dated as of May 11, 2015, as amended by Amendment No. 1 to the Credit Agreement, dated as of June 10, 2016, as further amended by Amendment No. 2 to the Credit Agreement, dated February 24, 2017 (as further amended, restated, supplemented or otherwise modified from time to time, the “ First Lien Credit Agreement ”), among Babcock & Wilcox Enterprises, Inc. (the “ Borrower ”), the lenders party thereto from time to time (the “ Lenders ”) and Bank of America, N.A., as administrative agent, Swing Line Lender and an L/C Issuer (the “ Administrative Agent ”), (ii) the Pledge and Security Agreement, dated as of June 30, 2015, made by and among the Borrower, certain Subsidiaries of the Borrower (collectively with the Borrower, the “ Grantors ”), and the Administrative Agent (as amended, supplemented or otherwise modified from time to time, the “ First Lien Security Agreement ”), (iii) the Second Lien Credit Agreement dated as of August 9, 2017 (the “ Second Lien Credit Agreement ” and, together with the First Lien Credit Agreement, each, individually, a “ Credit Agreement ”), among the Borrower, as the borrower thereunder, the Lenders party thereto and Lightship Capital LLC, as administrative agent (the “ Second Lien Administrative Agent ”), and a Lender thereunder and (iv) the Second Lien Pledge and Security Agreement, dated as of August 9, 2017, made by Borrower and certain of its subsidiaries and the Second Lien Administrative Agent (the “ Second Lien Security Agreement ” and, together with the First Lien Security Agreement, each, individually, a “ Security Agreement ”). Capitalized terms used but not defined herein have the meanings set forth in the respective Credit Agreement or Security Agreement, as the context may apply.

Any terms (whether capitalized or lower case) used in this Perfection Certificate that are defined in the UCC shall be construed and defined as set forth in the UCC unless otherwise defined herein, in the respective Credit Agreement or in the respective Security Agreement, provided that to the extent that the UCC is used to define any term used herein and if such term is defined differently in different Articles of the UCC, the definition of such term contained in Article 9 of the UCC shall govern. As used herein, the term “ UCC ” shall mean the “UCC” as that term is defined in the respective Security Agreement.

The undersigned, in his capacity as a duly authorized officer of each Grantor as indicated under his name on the signature page hereto, and not in his individual capacity, hereby certifies to the Administrative Agent, the Second Lien Administrative Agent and
    

each Secured Party (as defined in the respective Credit Agreement) as of the date hereof as follows:

(1)     Names, Legal Entity and Jurisdiction Information . Set forth in Schedule I hereto is a complete and correct list of (a) the complete and correct legal name of each Grantor as its name appears in its certificate of incorporation, articles of incorporation, certificate of formation, agreement of partnership or similar instrument of organization, (b) the type of organization of each Grantor, (c) the jurisdiction of organization of each Grantor, (d) the address of the chief executive office of each Grantor, (e) the federal taxpayer identification number of each Grantor, if any, (f) the organizational identification number of each Grantor, if any, (g) each other legal name that any Grantor has had in the past five years together with the date of the relevant change, (h) all other names (including trade names or similar appellations) used by each Grantor or any of its divisions or other business units in connection with the conduct of its business or the ownership of its properties at any time during the past five years, and (i) any change in the identity or corporate structure of any Grantor in any way within the past five years. Also set forth in Schedule I hereto is a description of all the occasions in which any Grantor has acquired the equity interests of another entity or substantially all the assets of another entity within the past five years (including the exact legal name and jurisdiction of organization of such entity).

(2)     Inventory and Equipment .

(a)     Set forth in Schedule II(a) hereto is a complete and correct list of the address at which Inventory and Equipment (other than mobile goods, Inventory in transit, and Equipment located outside the United States of America) owned by each Grantor is located, other than (i) any address listed on Schedule VII and (ii) any address at which the fair market value of Inventory and Equipment located thereon is less than $50,000.

(b)    Set forth in Schedule II(b) hereto is a complete and correct list of the names and addresses of all persons or entities (other than the Grantors) that have in their possession any of the Collateral consisting of Negotiable Documents or chattel paper.

(3)     Investment Property and Debt Instruments . Set forth in Schedule III hereto is a complete and correct list of all (i) issued and outstanding Stock and Stock Equivalent owned by each Grantor, denoting the record and beneficial owners of such Stock and Stock Equivalents and whether such Stock and Stock Equivalents are certificated, (ii) promissory notes, instruments (other than checks to be deposited in the ordinary course of business), tangible chattel paper held by each Grantor and other evidence of Indebtedness with a value in excess of $50,000 individually or $100,000 in the aggregate, including intercompany notes between or among any two or more Grantors or any of their Subsidiaries, and (iii) a complete and correct list of each equity investment owned by each Grantor that represents 50% or less of the equity of the entity in which such investment was made.

(4)     Intellectual Property . Set forth in Schedule IV hereto is a complete and correct list of all (i) United States registered Copyrights owned by any Grantor, including the name of the registered owner, the registration number and the application, registration or expiration

55

date of each such Copyright, (ii) issued, registered and applied-for Patents owned by any Grantor, including the name of the registered owner, the registration or application number and the issuance, application or expiration date of each such Patent, (iii) issued, registered and applied-for Trademarks owned by any Grantor, including the name of the registered owner, the registration or application number and the registration, application or expiration date, of each such Trademark, and (iv) material Trade Secret Licenses.

(5)     Commercial Tort Claims . Set forth in Schedule V hereto is a complete and correct list of all Commercial Tort Claims held by each Grantor having an aggregate amount of damages or other recoveries sought in excess of $50,000, including a reasonably detailed description thereof.

(6)     Assignment of Claims Act . Set forth in Schedule VI hereto is a complete and correct list of all written contracts between a Grantor and the United States government or any department or agency thereof that have a remaining value of at least $50,000, setting forth the contract number, name and address of contracting officer (or other party to whom a notice of assignment under the Assignment of Claims Act should be sent), contract start date and end date, agency with which the contract was entered into, and a description of the contract type.

(7)     Real Property and Fixtures . Set forth in Schedule VII hereto is (i) a complete and correct list of the street address (or other street/location designation) and county and state or similar jurisdiction of all owned real property located in the United States held by each Grantor, the record owner of such property and the reasonably estimated tax appraised value apportioned to such property as of the most recent appraisal date, (ii) a complete and correct list of each street address (or other street/location designation) and county and state or similar jurisdiction where each Grantor leases or subleases real property, the name and current mailing address of the lessor of such property and the scheduled date of expiration of the lease or sublease with respect to such property, and (iii) a complete and correct list of the location of any of the Collateral consisting of fixtures (to the extent not covered by any existing Mortgage).

(8)     Other Locations of Books and Records . Set forth in Schedule VIII hereto is a complete and correct list of all locations where each Grantor maintains any books or records relating to the Collateral (in each case, other than locations referred to in Schedule I hereto).

(9)     Letter-of-Credit-Rights . Set forth in Schedule IX hereto is a complete and correct list of all Letters of Credit issued in favor of each Grantor, as beneficiary thereunder, having an individual value in excess of $50,000.

(10)      Bank Deposits, Commodity Deposits and Securities Deposits . Set forth in Schedule X hereto is a complete and correct list of all Deposit Account, Commodity Account or Securities Account, including (i) the name of each bank or other Person at which any Grantor maintains such account, (ii) the type of account, (iii) the account number for such account and (iv) the name of the Grantor that holds or owns such account.

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(11)     Extraordinary Transactions . Except for those purchases, acquisitions and other transactions described in Schedule I hereto or listed in Schedule XI hereto, all of the Collateral has been originated by each Grantor in the past five (5) years in the ordinary course of business or consists of goods which have been acquired by each Grantor in the ordinary course from a person in the business of selling goods of that kind.

(12)     Motor Vehicles . Set forth in Schedule XII hereto is a complete and correct list of (i) all motor vehicles (covered by certificates of title or ownership) valued at over $50,000 and owned by each Grantor, (ii) the owner of such motor vehicles, and (iii) the approximate Fair Market Value of such motor vehicles.

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EXECUTION COPY
IN WITNESS WHEREOF, each of the undersigned has duly executed this Perfection Certificate as of the date first set forth above.

Grantors:

BABCOCK & WILCOX ENTERPRISES, INC.

By: __________________________________________

Name: Orville Lunking

Title:    Vice President & Treasurer
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: __________________________________________

Name: Robert P. McKinney

Title:    Assistant Secretary

EBENSBURG ENERGY, LLC

MEGTEC ENERGY & ENVIRONMENTAL LLC

MEGTEC INDIA HOLDINGS, LLC

MEGTEC SYSTEMS AUSTRALIA INC.

MEGTEC TURBOSONIC TECHNOLOGIES, INC.

MTS ASIA, INC.

O&M HOLDING COMPANY

PALM BEACH RESOURCE RECOVERY CORPORATION

POWER SYSTEMS OPERATIONS, INC.

SOFCO – EFS HOLDINGS LLC

THE BABCOCK & WILCOX COMPANY

UNIVERSAL AET HOLDINGS, LLC

UNIVERSAL SILENCER MEXICO II, LLC

UNIVERSAL SILENCER MEXICO, LLC

UNIVERSAL SILENCER PROPERTIES I, LLC

UNIVERSAL SILENCER PROPERTIES II, LLC

UNIVERSAL SILENCER PROPERTIES III, LLC
By: __________________________________________

Name: Robert P. McKinney

Title:    Assistant Secretary

EBENSBURG INVESTORS LIMITED PARTNERSHIP

By: BABCOCK & WILCOX EBENSBURG POWER,             LLC, as General Partner
By: __________________________________________

Name: Robert P. McKinney

Title:    Assistant Secretary

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