EXHIBIT J
SUBORDINATION AND INTERCREDITOR AGREEMENT
Dated as of August 9, 2017
BANK OF AMERICA, N.A.,
as First Priority Representative
LIGHTSHIP CAPITAL LLC,
as Second Priority Representative
BABCOCK & WILCOX ENTERPRISES, INC.
and
each other LOAN PARTY that is a party hereto
SUBORDINATION AND
INTERCREDITOR AGREEMENT
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EXECUTION COPY
TABLE OF CONTENTS
1. Definitions 1
1.1 Defined Terms 1
1.2 Terms Generally 10
2. SUBORDINATION 10
2.1 Payment Subordination . 10
3. Lien Priorities 11
3.1 Subordination of Liens 11
3.2 Nature of First Priority Obligations 13
3.3 Agreements Regarding Actions to Perfect Liens 13
3.4 No New Liens 14
4. Enforcement Rights 14
4.1 Exclusive Enforcement 14
4.2 Standstill and Waivers 14
4.3 Reserved 16
4.4 Cooperation 16
4.5 No Additional Rights For the Loan Parties Hereunder 16
4.6 Actions Upon Breach 16
4.7 Option to Purchase 17
4.8 Rights as Unsecured Creditors 18
5. Application of Proceeds of Common Collateral; Dispositions and Releases; Inspection and Insurance 19
5.1 Application of Proceeds; Turnover Provisions 19
5.2 Releases of Second Priority Lien 19
5.3 Inspection Rights and Insurance 21
5.4 [Releases of Other Obligations 21
6. Insolvency Proceedings 22
6.1 Filing of Motions 22
6.2 Financing Matters 23
6.3 Relief From the Automatic Stay 23
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6.4 Adequate Protection 24
6.5 Avoidance Issues 25
6.6 Asset Dispositions in an Insolvency Proceeding 25
6.7 Separate Grants of Security and Separate Classification 25
6.8 Appointment of First Priority Representative as Agent 26
6.9 No Waivers of Rights of First Priority Secured Parties 26
6.10 Other Matters 26
6.11 Effectiveness in Insolvency Proceedings 26
7. Security Documents; Amendments to First Priority Documents; Amendments to Second Priority Documents 27
7.1 Security Documents 27
7.2 Amendments to First Priority Documents 27
7.3 Amendments to Second Priority Documents 28
8. Reliance; Waivers; etc. 29
8.1 Reliance 29
8.2 No Warranties or Liability 29
8.3 No Waivers 29
8.4 Confidential Information 29
9. Obligations Unconditional 30
9.1 First Priority Obligations Unconditional 30
9.2 Second Priority Obligations Unconditional 31
10. Miscellaneous 31
10.1 Conflicts 31
10.2 Continuing Nature of Provisions 31
10.3 Amendments; Waivers 32
10.4 Information Concerning Financial Condition of the Borrower and the Loan Parties 32
10.5 Governing Law 33
10.6 Submission to Jurisdiction 33
10.7 Notices 34
10.8 Successors and Assigns 34
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10.9 Headings 34
10.10 Severability 35
10.11 Counterparts; Integration; Effectiveness 35
10.12 Waiver of Jury Trial 35
10.13 Additional Loan Parties 35
10.14 No Liability for Action or Inaction 35
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EXECUTION COPY
SUBORDINATION AND INTERCREDITOR AGREEMENT
This Subordination and Intercreditor Agreement (the Agreement ), dated as of August 9, 2017, among BANK OF AMERICA, N.A., as administrative agent for the First Priority Secured Parties (as defined below) (in such capacity, with its successors and assigns, the First Priority Representative ), LIGHTSHIP CAPITAL LLC, as administrative agent for the Second Priority Secured Parties (as defined below) (in such capacity, with its successors and assigns, the Second Priority Representative ), BABCOCK & WILCOX ENTERPRISES, INC. (the Borrower ) and each of the other Loan Parties (as defined below) party hereto.
WHEREAS, the Borrower, the First Priority Representative and certain financial institutions and other entities are parties to the First Lien Credit Agreement dated as of May 11, 2015 (as amended on June 10, 2016, Feb 24, 2017 and on the date hereof and as may be from time to time further amended, supplemented, restated or otherwise modified, in each case, in accordance with the terms of this Agreement, the Existing First Priority Agreement ), pursuant to which such financial institutions and other entities agreed to make loans and extend other financial accommodations to the Borrower; and
WHEREAS, the Borrower, the Second Priority Representative and certain financial institutions and other entities are parties to the Second Lien Term Loan Agreement dated as of the date hereof (as may be from time to time amended, supplemented, restated or otherwise modified, in each case, in accordance with the terms of this Agreement, the Existing Second Priority Agreement ), pursuant to which such financial institutions and other entities agreed to make loans to the Borrower; and
WHEREAS, the Borrower and the other Loan Parties have granted to the First Priority Representative senior security interests in the First Priority Collateral as security for payment and performance of the First Priority Obligations; and
WHEREAS, the Borrower and the other Loan Parties have granted to the Second Priority Representative junior security interests in the Second Priority Collateral as security for payment and performance of the Second Priority Obligations;
NOW THEREFORE, in consideration of the foregoing and the mutual covenants herein contained and other good and valuable consideration, the existence and sufficiency of which are expressly recognized by all of the parties hereto, the parties agree as follows:
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