EX-10.4 5 f10q0320ex10-4_brileyfin.htm AMENDMENT NO. 20 TO CREDIT AGREEMENT, DATED AS OF JANUARY 31, 2020, BY AND AMONG BABCOCK & WILCOX ENTERPRISES, INC., BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT, AND THE LENDERS PARTY THERETO, INCLUDING THE COMPANY

Exhibit 10.4

 

Portions of this exhibit marked by [***] have been omitted pursuant to Rule 601(b)(10) of Regulation S-K. The omitted information is not material and, if publicly disclosed, would likely cause competitive harm to the registrant.

 

AMENDMENT NO. 20 TO CREDIT AGREEMENT

 

This AMENDMENT NO. 20 TO CREDIT AGREEMENT (this “Amendment”), dated as of January 31, 2020, is among BABCOCK & WILCOX ENTERPRISES, INC., a Delaware corporation (the “Borrower”), BANK OF AMERICA, N.A., in its capacity as administrative agent for the Lenders (as defined in the Credit Agreement described below) (in such capacity, the “Administrative Agent”), and each of the Lenders party hereto, and, for purposes of Sections 1478 and 10 hereof, acknowledged and agreed by certain Subsidiaries of the Borrower, as Guarantors.

 

W I T N E S S E T H:

 

WHEREAS, the Borrower, the Administrative Agent and the Lenders have entered into that certain Credit Agreement, dated as of May 11, 2015 (as amended by Amendment No. 1 to Credit Agreement, dated as of June 10, 2016, Amendment No. 2 to Credit Agreement, dated as of February 24, 2017, Amendment No. 3 to Credit Agreement, dated as of August 9, 2017, Amendment No. 4 to Credit Agreement, dated as of September 20, 2017, Amendment No. 5 to Credit Agreement, dated as of March 1, 2018, Amendment No. 6 to Credit Agreement, dated as of April 10, 2018, Consent and Amendment No. 7 to Credit Agreement, dated as of June 1, 2018, Amendment No. 8 to Credit Agreement, dated as of August 9, 2018, Amendment No. 9 and Consent to Credit Agreement, dated as of September 14, 2018, Amendment No. 10 to the Credit Agreement, dated as of September 28, 2018, Amendment No. 11 to the Credit Agreement, dated as of October 4, 2018, Amendment No. 12 to the Credit Agreement, dated as of October 31, 2018, Amendment No. 13 to the Credit Agreement, dated as of December 19, 2018, Amendment No. 14 to the Credit Agreement, dated as of January 15, 2019, Amendment No. 15 and Limited Waiver to the Credit Agreement, dated as of March 19, 2019, Amendment No. 16 to the Credit Agreement, dated as of April 5, 2019, Amendment No. 17 to the Credit Agreement, dated as of August 7, 2019, Amendment No. 18 to the Credit Agreement, dated as of December 31, 2019, and Amendment No. 19 to the Credit Agreement, dated as of January 17, 2020 and from time to time further amended, supplemented, restated, amended and restated or otherwise modified, the “Credit Agreement”; capitalized terms used in this Amendment not otherwise defined herein shall have the respective meanings given thereto in the Credit Agreement (as amended hereby), pursuant to which the Revolving Credit Lenders have provided the Revolving Credit Facility to the Borrower and the Term Loan Lenders have provided the Term Loan Facility to the Borrower; and

 

WHEREAS, the Borrower has requested that (i) the Administrative Agent and the Required Lenders agree to, among other items, add an additional term loan tranche under the existing Term Loan Facility and the extension of credit and related obligations and liabilities arising from time to time thereunder shall be on a subordinated basis to the Revolving Credit Facility and (ii) the Administrative Agent, the L/C Issuers and the Revolving Credit Lenders agree to extend certain of their commitments upon the occurrence of certain events by amending and restating the Credit Agreement substantially in accordance with the Term Sheet attached hereto as Annex A (the “Refinancing Term Sheet”), and the Lenders and L/C Issuers signatory hereto are willing to consent to effect such amendments on the terms and conditions contained in this Amendment.

  

1

 

 

NOWTHEREFORE, in consideration of the premises and further valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

 

1.Initial Amendments to the Credit Agreement.

 

The Credit Agreement is, effective as of the Amendment No. 20 Effective Date (as defined below), hereby amended as follows:

 

(a)The Credit Agreement shall be amended by deleting the stricken text (indicated textually in the same manner as the following example: stricken text) and by adding the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) in the form set out in Annex B hereto.

 

(b)Schedule 2.01 (Commitments and Applicable Percentages) to the Credit Agreement is hereby amended and restated in its entirety in the form set out on Annex C hereto.

 

(c)Exhibit A (Committed Loan Notice) to the Credit Agreement is hereby amended and restated in its entirety in the form set out on Annex D hereto.

 

(d)Exhibit E-1 (Assignment and Assumption) to the Credit Agreement is hereby amended and restated in its entirety in the form set out on Annex E hereto.

 

2.Joinder

 

From and after the Amendment No. 20 Effective Date, pursuant to Section 10.01 of the Credit Agreement, each Tranche A-4 Term Loan Lender and Tranche A-5 Term Loan Lender executing this Amendment shall become a party to the Credit Agreement (to the extent not already a party) and have the rights and obligations of a Term Loan Lender thereunder and under the other Loan Documents and shall be bound by the provisions thereof.

   
3. Subsequent Amendment and Restatement to the Credit Agreement

 

(a)Upon the occurrence of each “Conditions Precedent to the Refinancing Transaction” set forth on Annex F hereto, the Administrative Agent, the Lenders and the L/C Issuers hereby agree to amend and restate the Credit Agreement substantially in accordance with the terms and conditions set forth in the Refinancing Term Sheet and in form and substance satisfactory to the Administrative Agent and the Loan Parties.

 

2

 

 

(b)Notwithstanding the above, nothing in this Section 3 shall be deemed a consent by the Administrative Agent, any Lender or any L/C Issuer to any amendment, waiver or modification to the Credit Agreement if the consent of the Administrative Agent, such Lender or such L/C Issuer would be required under Section 10.01 of the Credit Agreement, except to the extent expressly set forth in the Refinancing Term Sheet.

 

(c)Condition precedent 5 [Flood Diligence] listed on Annex F hereto shall not be waived without the consent of each Revolving Credit Lender.

 

(d)Upon the satisfaction of condition precedent 18 [Return of Certain Letters of Credit] listed on Annex F hereto, Credit Agricole Corporate and Investment Bank and its affiliates shall be deemed to have been removed in its capacity as L/C Issuer under the Credit Agreement, and Credit Agricole Corporate and Investment Bank consents to such removal.

 

4.Additional Agreements and Acknowledgments

 

(a)The Borrower agrees to pay, or cause to be paid, to the Administrative Agent, for the account of each Revolving Credit Lender who consented to this Amendment by executing and delivering to the Administrative Agent a signature page hereto on or prior to the Amendment No. 20 Effective Date, an amendment fee equal to 100 basis points (1.00%) of the portion of the Revolving Credit Facility held by such consenting Revolving Credit Lender as of the Amendment No. 20 Effective Date which fees shall be earned on the Amendment No. 20 Effective Date and shall be payable in immediately available funds upon the Amendment No. 20 Effective Date (the fees under this Section 4(a)(i), the “Amendment Fees”).

 

(b)The Borrower and the other Loan Parties shall promptly provide the Administrative Agent and advisors to the Lenders with any information (financial or otherwise) that the Administrative Agent or advisors to the Lenders reasonably request, including, without limitation, projections, forecasts, budgets and information regarding liquidity, cash flow, proposed financing activities (equity or debt) and proposed corporate transactions (including, any contemplated sales or mergers); provided, that the Borrower shall notify the Administrative Agent whether or not such information constitutes material non-public information.

 

(c)Each of the Borrower and the other Loan Parties hereby jointly and severally agrees, on demand, to reimburse the Administrative Agent and the Revolving Credit Lenders for all reasonable and out-of-pocket costs and expenses of the Administrative Agent and the Revolving Credit Lenders related to or in connection with this Amendment and any documents, agreements or instruments referred to herein, including, without limitation, the reasonable fees and out-of-pocket expenses of Freshfields Bruckhaus Deringer US LLP (the “Agent’s Legal Advisor”), FTI, and any consultants, including any engineering consultant, attorneys or other professionals retained by the Administrative Agent and/or the Lenders in connection with the Loan Documents, including without limitation, in connection with (i) the negotiation and preparation of this Amendment, the enforcement of their rights and remedies under this Amendment, and (ii) the negotiation, documentation and analysis related to any “work out,” amendment to the Credit Agreement, or restructuring of the Obligations, or any of the Loan Documents (in each case, whether or not incurred prior to the date of this Amendment). All such fees, costs and expenses shall constitute Obligations under the Credit Agreement secured by the Collateral under the Security Instruments. Nothing in this Amendment shall be intended or construed to hold the Administrative Agent, the Revolving Credit Lenders or any other Secured Party liable or responsible for any expense, liability or obligation of any kind or nature whatsoever (including, without limitation, attorneys’ fees and expenses, other professionals’ fees and expenses, wages, salaries, payroll taxes, withholdings, benefits or other amounts payable by or on behalf of the Loan Parties).

 

3

 

 

(d)The Borrower, the Administrative Agent, and the Required Lenders reaffirm their agreement to negotiate in good faith modifications to (i) clause (e) of Section 7.03 (Investments) to limit the amount of Investments made by any Loan Party in any Foreign Subsidiary and (ii) clause (h) of Section 7.04 (Asset Sales), clause (b) of Section 7.05 (Restricted Payments), and clauses (a) and (b) of Section 7.06 (Fundamental Changes) to limit certain transactions with Foreign Security Providers. The Borrower reaffirms that the Borrower shall not, and shall cause its Subsidiaries not to, engage in any transactions with respect to its Foreign Subsidiaries outside of the ordinary course of business or outside of past practice prior to the effectiveness of such modifications (other than the Borrower or its Subsidiaries entry into and performance of its obligations under the Vølund Settlement Agreements (as defined below)).

 

(e)As soon as commercially reasonable and in no event later than 15 days after the date hereof (or such longer period as permitted by the Administrative Agent in its sole discretion), the Borrower shall open and maintain the Recovery Event Proceeds Account (as defined in the Credit Agreement, as amended by Amendment No. 20) with the Administrative Agent.

 

(f)The Borrower and the other Loan Parties each acknowledge and agree that the breach or failure to comply in any respect with the terms and conditions of this Section 4 shall constitute an immediate Event of Default under Section 8.01 of the Credit Agreement.

 

4

 

 

5.Effectiveness; Conditions Precedent.

 

The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 Effective Date”):

 

(a)the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:

 

(i)counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;

 

(ii)a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;

 

(iii)a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;

  

5

 

 

(iv)such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;

 

(v)satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment No. 17, Amendment No. 18 and Amendment No. 19 to the extent not previously delivered);

 

(vi)a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;

 

6

 

 

(vii)a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;

 

(viii)a duly executed copy of a backstop financing commitment letter, between Borrower and B. Riley FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.

 

(b)without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (Expenses; Indemnity; Damage Waiver) of the Credit Agreement, all outstanding fees, costs and expenses due to the Administrative Agent and the Revolving Credit Lenders, including on account of the Agent’s Legal Advisor and FTI, shall have been paid in full to the extent that the Borrower has received an invoice therefor (with reasonable and customary supporting documentation) at least two Business Days prior to the Amendment No. 20 Effective Date (without prejudice to any post-closing settlement of such fees, costs and expenses to the extent not so invoiced);

 

(c)The Administrative Agent shall have received, on account of each Revolving Credit Lender who consented to this Amendment, the Amendment Fees;

 

(d)Each Tranche A-4 Term Loan Lender shall have made the full amount of its Tranche A-4 Term Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office not later than 1:00 p.m. Eastern time (or such later time as the Administrative Agent may agree in its sole discretion) on the Business Day specified for such Term Loan Borrowing in the applicable Committed Loan Notice;

 

(e)All outstanding fees, costs and expenses in connection with the Amendment due to the Tranche A-4 Term Loan Lenders’ and the Tranche A-5 Term Loan Lender’s advisors and legal counsel, up to an amount not to exceed $20,000, shall have been paid to the extent that the Borrower has received an invoice thereof (with reasonable and customary supporting documentation) and without prejudice to any post-closing settlement of such fees, costs and expenses to the extent not so invoiced; and

 

(f)each of the representations and warranties made by the Borrower in Section 4 hereof shall be true and correct;

 

7

 

 

The Administrative Agent agrees that it will, upon the satisfaction or waiver of the conditions contained in this Section 5, promptly provide written notice to the Borrower, and the Lenders of the effectiveness of this Amendment.

 

6.Representations and Warranties.

 

In order to induce the Administrative Agent and the Lenders to enter into this Amendment, the Borrower represents and warrants to the Administrative Agent and the Lenders, for itself and for each other Loan Party, as follows:

 

(a)that both immediately prior to and immediately after giving effect to this Amendment, no Default or Event of Default exists;

 

(b)the representations and warranties contained in the Credit Agreement (as amended hereby) are true and correct in all material respects on and as of the date hereof (except to the extent that such representations and warranties (i) specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date and (ii) contain a materiality or Material Adverse Effect qualifier, in which case such representations and warranties shall be true and correct in all respects);

 

(c)the execution, delivery and performance by the Borrower and the other Loan Parties of this Amendment and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate, limited liability company or partnership action, including the consent of shareholders, partners and members where required, do not contravene any Loan Party or any of its Subsidiaries’ respective Constituent Documents, do not violate any Requirement of Law applicable to any Loan Party or any order or decree of any Governmental Authority or arbiter applicable to any Loan Party and do not require the consent of, authorization by, approval of, notice to, or filing or registration with, any Governmental Authority or any other Person in order to be effective and enforceable;

 

(d)this Amendment has been duly executed and delivered on behalf of the Borrower and the other Loan Parties;

 

(e)this Amendment constitutes a legal, valid and binding obligation of the Borrower and the other Loan Parties enforceable against the Borrower and the other Loan Parties in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, Debtor Relief Laws or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity; and

 

8

 

 

(f)as of the date hereof, all Liens, security interests, assignments and pledges encumbering the Collateral, created pursuant to and/or referred to in the Credit Agreement or the other Loan Documents, are valid, enforceable, duly perfected to the extent required by the Loan Documents, non-avoidable, first priority liens, security interests, assignments and pledges (subject to Liens permitted by Section 7.02 of the Credit Agreement), continue unimpaired, are in full force and effect and secure and shall continue to secure all of the obligations purported to be secured in the respective Security Instruments pursuant to which such Liens were granted.

 

7.Consent, Acknowledgement and Reaffirmation of Indebtedness and Liens.

 

By its execution hereof, each Loan Party, in its capacity under each of the Loan Documents to which it is a party (including the capacities of debtor, guarantor, grantor and pledgor, as applicable, and each other similar capacity, if any, in which such party has granted Liens on all or any part of its properties or assets, or otherwise acts as an accommodation party, guarantor, indemnitor or surety with respect to all or any part of the Obligations), hereby:

 

(a)expressly consents to the amendments and modifications to the Credit Agreement effected hereby;

 

(b)expressly confirms and agrees that, notwithstanding the effectiveness of this Amendment, each Loan Document to which it is a party is, and all of the obligations and liabilities of such Loan Party to the Administrative Agent, the Lenders and each other Secured Party contained in the Loan Documents to which it is a party (in each case, as amended and modified by this Amendment), are and shall continue to be, in full force and effect and are hereby reaffirmed, ratified and confirmed in all respects and, without limiting the foregoing, agrees to be bound by and abide by and operate and perform under and pursuant to and comply fully with all of the terms, conditions, provisions, agreements, representations, undertakings, warranties, indemnities, guaranties, grants of security interests and covenants contained in the Loan Documents;

 

(c)to the extent such party has granted Liens or security interests on any of its properties or assets pursuant to any of the Loan Documents to secure the prompt and complete payment, performance and/or observance of all or any part of its Obligations to the Administrative Agent, the Lenders, and/or any other Secured Party, acknowledges, ratifies, remakes, regrants, confirms and reaffirms without condition, all Liens and security interests granted by such Loan Party to the Administrative Agent for their benefit and the benefit of the Lenders, pursuant to the Credit Agreement and the other Loan Documents, and acknowledges and agrees that all of such Liens and security interests are intended and shall be deemed and construed to continue to secure the Obligations under the Loan Documents, as amended, restated, supplemented or otherwise modified and in effect from time to time, including but not limited to, the Loans made by, and Letters of Credit provided by, the Administrative Agent and the Lenders to the Borrower and/or the other Loan Parties under the Credit Agreement, and all extensions renewals, refinancings, amendments or modifications of any of the foregoing;

 

9

 

 

(d)agrees that this Amendment shall in no manner impair or otherwise adversely affect any of the Liens and security interests granted in or pursuant to the Loan Documents; and

 

(e)acknowledges and agrees that: (i) the Guaranty and any obligations incurred thereunder, have been provided in exchange for “reasonably equivalent value” (as such term is used under the Bankruptcy Code and applicable state fraudulent transfer laws) and “fair consideration” (as such term is used under applicable state fraudulent conveyance laws) and (ii) each grant or perfection of a Lien or security interest on any Collateral provided in connection with Loan Documents, this Amendment and/or any negotiations with the Administrative Agent and/or the Lenders in connection with a “workout” of the Obligations is intended to constitute, and does constitute, a “contemporaneous exchange for new value” (as such term is used in Section 547 of the Bankruptcy Code).

 

8.Releases; Waivers.

 

(a)By its execution hereof, each Loan Party (on behalf of itself and its Affiliates) and its successors-in-title, legal representatives and assignees and, to the extent the same is claimed by right of, through or under any Loan Party, for its past, present and future employees, agents, representatives, officers, directors, shareholders, and trustees (each, a “Releasing Party” and collectively, the “Releasing Parties”), does hereby remise, release and discharge, and shall be deemed to have forever remised, released and discharged, the Administrative Agent, the Lenders and each of the other Secured Parties, and the Administrative Agent’s, each Lenders’ and each other Secured Party’s respective successors-in-title, legal representatives and assignees, past, present and future officers, directors, affiliates, shareholders, trustees, agents, employees, consultants, experts, advisors, attorneys and other professionals and all other persons and entities to whom any of the foregoing would be liable if such persons or entities were found to be liable to any Releasing Party, or any of them (collectively hereinafter, the “Lender Parties”), from any and all manner of action and actions, cause and causes of action, claims, charges, demands, counterclaims,suits, covenants, controversies, damages, judgments, expenses, liens, claims of liens, claims of costs, penalties, attorneys’ fees, or any other compensation, recovery or relief on account of any liability, obligation, demand or cause of action of whatever nature, whether in law, equity or otherwise (including, without limitation, any so called “lender liability” claims, claims for subordination (whether equitable or otherwise), interest or other carrying costs, penalties, legal, accounting and other professional fees and expenses and incidental, consequential and punitive damages payable to third parties, or any claims arising under 11 U.S.C. §§ 541-550 or any claims for avoidance or recovery under any other federal, state or foreign law equivalent), whether known or unknown, fixed or contingent, joint and/or several, secured or unsecured, due or not due, primary or secondary, liquidated or unliquidated, contractual or tortious, direct, indirect, or derivative, asserted or unasserted, foreseen or unforeseen, suspected or unsuspected, now existing, heretofore existing or which may heretofore have accrued against any of the Lender Parties under the Credit Agreement or any of the other Loan Documents, whether held in a personal or representative capacity, and which are based on any act, fact, event or omission or other matter, cause or thing occurring at or from any time prior to and including the date hereof, in all cases of the foregoing in any way, directly or indirectly arising out of, connected with or relating to the Credit Agreement or any other Loan Document and the transactions contemplated thereby, and all other agreements, certificates, instruments and other documents and statements (whether written or oral) related to any of the foregoing (each, a “Claim” and collectively, the “Claims”), in each case, other than Claims arising from Lender Parties’ gross negligence, fraud, or willful misconduct. Each Releasing Party further stipulates and agrees with respect to all Claims, that it hereby waives, to the fullest extent permitted by applicable law, any and all provisions, rights, and benefits conferred by any applicable U.S. federal or state law, or any principle of common law, that would otherwise limit a release or discharge of any unknown Claims pursuant to this Section 8.

 

(b)By its execution hereof, each Loan Party hereby (i) acknowledges and confirms that there are no existing defenses, claims, subordinations (whether equitable or otherwise), counterclaims or rights of recoupment or setoff against the Administrative Agent, the Lenders or any other Secured Parties in connection with the Obligations or in connection with the negotiation, preparation, execution, performance or any other matters relating to the Credit Agreement, the other Loan Documents or this Amendment and (ii) expressly waives any setoff, counterclaim, recoupment, defense or other right that such Loan Party now has against the Administrative Agent, any Lender or any of their respective affiliates, whether in connection with this Amendment, the Credit Agreement and the other Loan Documents, the transactions contemplated by this Amendment or the Credit Agreement and the Loan Documents, or any agreement or instrument relating thereto.

 

10

 

 

9.Entire Agreement.

 

This Amendment, the Credit Agreement (including giving effect to the amendments set forth in Section 1 above), and the other Loan Documents (collectively, the “Relevant Documents”), set forth the entire understanding and agreement of the parties hereto in relation to the subject matter hereof and supersedes any prior negotiations and agreements among the parties relating to such subject matter. No promise, condition, representation or warranty, express or implied, not set forth in the Relevant Documents shall bind any party hereto, and no such party has relied on any such promise, condition, representation or warranty. Each of the parties hereto acknowledges that, except as otherwise expressly stated in the Relevant Documents, no representations, warranties or commitments, express or implied, have been made by any party to any other party in relation to the subject matter hereof or thereof. None of the terms or conditions of this Amendment may be changed, modified, waived or cancelled orally or otherwise, except in writing and in accordance with Section 10.01 of the Credit Agreement.

 

10.Full Force and Effect of Credit Agreement.

 

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 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.

 

11

 

 

11.Counterparts; Effectiveness.

 

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 5 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.

 

12.Governing Law; Jurisdiction; Waiver of Jury Trial.

 

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 herein by this reference.

 

13.Severability.

 

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 endeavour 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.

 

14.References.

 

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.

 

12

 

 

15.Successors and Assigns.

 

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.

 

16.Lender Acknowledgment.

 

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 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 Amendment No. 20 Effective Date specifying its objection thereto.

 

17.Amendments.

 

In addition to any consent required pursuant to Section 3, this Amendment may be amended, supplemented or otherwise modified only by a written agreement signed by the Borrower, the other Loan Parties, the Administrative Agent and the Required Lenders and none of the provisions hereof may be waived without the prior written consent of the Administrative Agent and the Required Lenders.

 

[Signature pages follow]

 

13

 

 

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/ Dwayne M. Petish  
Name: Dwayne M. Petish  
Title: Treasurer  

 

Acknowledged and Agreed for purposes of Sections 1478 and 10 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, LLC

BABCOCK & WILCOX INDIA HOLDINGS, INC.

BABCOCK & WILCOX INTERNATIONAL SALES AND SERVICE CORPORATION

BABCOCK & WILCOX INTERNATIONAL, INC.

BABCOCK & WILCOX POWER GENERATION GROUP CANADA CORP.

BABCOCK & WILCOX SPIG, INC.

BABCOCK & WILCOX TECHNOLOGY, LLC

BABCOCK & WILCOX DE MONTERREY, S.A. DE C.V.

DELTA POWER SERVICES, LLC

DIAMOND OPERATING CO., INC.

DIAMOND POWER AUSTRALIA HOLDINGS, INC.

 

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

 

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

EBENSBURG ENERGY, LLC

O&M HOLDING COMPANY

POWER SYSTEMS OPERATIONS, INC.

SOFCO EFS HOLDINGS LLC

THE BABCOCK & WILCOX COMPANY

 

By: /s/ Dwayne M. Petish  
Name: Dwayne M. Petish  
Title: Treasurer  

 

EBENSBURG INVESTORS LIMITED PARTNERSHIP

 

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

 

By: /s/ Dwayne M. Petish  
Name: Dwayne M. Petish  
Title: Treasurer  

 

BABCOCK & WILCOX DE MONTERREY, S.A. DE C.V.

 

By: /s/ Victor Alfonso Muñoz Pérez   
Name: Victor Alfonso Muñoz Pérez  
Title: Authorized Person  

 

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

 

Administrative Agent:

 

BANK OF AMERICA, N.A., as Administrative Agent

 

By: /s/ Bridgett J. Manduk Mowry  
Name: Bridgett J. Manduk Mowry  
Title: Vice President  

 

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 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: Director  

 

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

 

BANK OF AMERICA, N.A., as L/C Issuer

 

By: /s/ Stefanie Tanwar  
Name: Stefanie Tanwar  
Title: Director  

 

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

 

BANK OF AMERICA CREDIT PRODUCTS, INC.,

as Lender

 

By: /s/ Miles Hanes  
Name: Miles Hanes  
Title: AVP  

   

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

 

B. RILEY FBR, INC., as Lender

 

 

By: /s/ Bryant Riley   
Name: Bryant Riley  
Title: Chairman and Co-CEO  

    

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

 

B. RILEY FINANCIAL, INC., as Lender

 

By: /s/ Bryant Riley   
Name: Bryant Riley  
Title: Chairman and Co-CEO  

    

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

 

THE BANK OF NOVA SCOTIA, as Lender

 

By: /s/ Hiliary Lai  
Name: Hiliary Lai  
Title: Senior Manager  

 

By: /s/ Rocco Fabiano  
Name: Rocco Fabiano  
Title: Vice President  

    

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

 

BBVA USA, as Lender

 

By: /s/ Bruce Bingham  
Name: Bruce Bingham  
Title: Vice President  

 

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

 

BNP PARIBAS, as Lender

 

By: /s/ Pierre Nicholas Rogers  
Name: Pierre Nicholas Rogers  
Title: Managing Director  

 

By: /s/ Joseph Mack   
Name: Joseph Mack  
Title: Vice President  

   

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

 

BNP PARIBAS, as L/C Issuer

 

By: /s/ Pierre Nicholas Rogers  
Name: Pierre Nicholas Rogers  
Title: Managing Director  

 

 

By: /s/ Amy Kirshner  
Name: Amy Kirshner  
Title: Managing Director  

 

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

 

CITIZENS BANK, N.A., as Lender

 

By: /s/ David W. Stack  
Name: David W. Stack  
Title: Senior Vice President  

    

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as Lender

 

By: /s/ Yurly A. Tsyganov  
Name: Yurly A. Tsyganov  
Title: Director  

 

By: /s/ Ronald E. Spitzer  
Name: Ronald E. Spitzer  
Title: Managing Director  

 

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as L/C Issuer

 

By: /s/ Yurly A. Tsyganov  
Name: Yurly A. Tsyganov  
Title: Director  

 

By: /s/ Ronald E. Spitzer  
Name: Ronald E. Spitzer  
Title: Managing Director  

    

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

 

HANCOCK WHITNEY BANK, as Lender

 

By: /s/ Eric K. Sander  
Name: Eric K. Sander  
Title: Vice President  

 

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

 

 

JPMORGAN CHASE BANK NA, as Lender

 

By: /s/ Phillip D. Martin   
Name: Phillip D. Martin  
Title: Managing Director  

 

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

 

JPMORGAN CHASE BANK NA, as L/C Issuer

 

By: /s/ Phillip D. Martin   
Name: Phillip D. Martin  
Title: Managing Director  

 

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

 

MUFG BANK, LTD., as Lender

 

By: /s/ David Helffrich   
Name: David Helffrich  
Title: Director  

    

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

 

THE NORTHERN TRUST CO., as Lender

 

By: /s/ Robert P. Veltman  
Name: Robert P. Veltman  
Title: Vice President  

 

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

  

PNC BANK, NATIONAL ASSOCIATION, as Lender

 

By: /s/ Mark Starnes  
Name: Mark Starnes  
Title: Vice President  

 

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

  

TD BANK, N.A., as Lender

 

By: /s/ Bethany Buitenhuys  
Name: Bethany Buitenhuys  
Title: Vice President  

 

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

  

TD BANK, N.A., as L/C Issuer

 

By: /s/ Bethany Buitenhuys  
Name: Bethany Buitenhuys  
Title: Vice President  

 

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

  

U.S. BANK, N.A., as Lender

 

By: /s/ David C. Heyson  
Name: David C. Heyson  
Title: Senior Vice President  

 

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

  

UNICREDIT BANK, as Lender

 

By: /s/ Scott Obeck  
Name: Scott Obeck  
Title: Director  
     
By: /s/ Douglas Riahi  
Name: Douglas Riahi  
Title: Managing Director  

 

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

  

VINTAGE CAPITAL MANAGEMENT LLC, as Lender

 

By: /s/ Brian Kahn  
Name: Brian Kahn  
Title: Manager  

 

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

  

WELLS FARGO BANK, N.A., as Lender

 

By: /s/ Reginald Dawson  
Name: Reginald Dawson  
Title: Managing Director  

 

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement Signature Page]

 

 

 

  

ANNEX A

Refinancing Term Sheet

[Please see attached]

 

[Babcock & Wilcox Enterprises, Inc.
Amendment No. 20 to Credit Agreement - Annex A]

 

 

 

  

Annex A

 

Refinancing Term Sheet

 

Existing Credit Agreement: That certain Credit Agreement, dated as of May 11, 2015, as amended through Amendment No. 20, dated as of January 31, 2020, among the Borrower, each lender from time to time party thereto, and Bank of America, N.A., as Administrative Agent, Swing Line Lender and an L/C Issuer. Capitalized terms used but not defined herein shall have the meaning of such terms in the Existing Credit Agreement.

 

Borrower: Babcock & Wilcox Enterprises, Inc., a Delaware corporation.

 

Guarantors: The guarantors under the Existing Credit Agreement. The Borrower and the Guarantors are collectively referred to herein as the “Loan Parties”).

 

Administrative Agent: Bank of America, N.A., as the Administrative Agent under the Existing Credit Agreement.

 

Refinancing: On or prior to May 11, 2020, financing shall be provided to the Borrower (the date of such financing, “Refinancing Date”), in the form of Indebtedness and/or proceeds from the issuance of equity, in each case subject to terms and conditions to be determined (such financing, the “Refinancing”), including the following:

 

At least $200,000,000 of new Indebtedness and/or equity financing upon the effectiveness of the A&R Credit Agreement;

 

$143,000,000 of Term Loans (including the Tranche A-3 Term Loans and the term loans made pursuant to Amendment No. 20) will be continued or be refinanced with new Indebtedness and/or equity financing;

 

All Indebtedness relating to the Refinancing (including (x) any Stock or Stock Equivalents that are mandatorily redeemable and (y) any Tranche A-3 Term Loans and term loans made pursuant to Amendment No. 20) shall not exceed $275,000,000 in aggregate principal amount (including Stock or Stock Equivalents that are mandatorily redeemable valued at its liquidation preference);1

 

All Indebtedness relating to the Refinancing (other than Stock and Stock Equivalents that are mandatorily redeemable and issued on terms satisfactory to the Administrative Agent) shall be on the same terms as the Term Loans under the Existing Credit Agreement (including, for the avoidance of doubt, the voting provisions and the prohibition on amortization); provided that (i) the maturity date shall be 6 months after the Extended Revolving Credit Facility Maturity Date (as defined below), (ii) the interest thereon shall not exceed 12% per annum, except as modified with the written consent of the Administrative Agent and the Required Lenders, and (iii) aggregate Cash Interest Expense with respect to such Indebtedness shall not exceed $6,000,000 in any fiscal quarter (subject to proration for the first fiscal quarter ending after the Refinancing Date), except as modified with the written consent of the Administrative Agent and the Required Lenders;

 

 

 

1The $275,000,000 cap will not include [***] reimbursement obligations converted into term loans.

 

 

 

 

No Stock and Stock Equivalents relating to the Refinancing shall be Disqualified Stock, and all such Stock and Stock Equivalents shall be issued on terms satisfactory to the Administrative Agent; and

 

The Borrower shall not be permitted to add any incremental Indebtedness as credit extensions under the A&R Credit Agreement.

 

In connection with the Refinancing, the Existing Credit Agreement, as amended by Amendment No. 20, shall be amended and restated (the “A&R Credit Agreement”).     

 

Use of Proceeds: The proceeds of the Refinancing shall be used on the Refinancing Date to repay in full the Borrower’s existing Revolving Credit Loans, and any Revolving Credit Commitment in excess of $195,000,000 shall be terminated.

 

Existing Revolving Credit Facility: After the use of proceeds of the Refinancing, the Revolving Credit Facility under the Existing Credit Agreement shall be available in an amount not to exceed $195,000,000, $30,000,000 in the form of commitments to extend Revolving Credit Loans (provided that use of the proceeds of such Revolving Credit Loans is limited to working capital purposes) and $165,000,000 available solely for existing and new Letters of Credit (the “L/C Commitment”), with an extended Revolving Credit Facility Maturity Date of January 1, 2022 (such date, the “Extended Revolving Credit Facility Maturity Date”). The Alternative Currency Sublimit shall be decreased to $100,000,000. Financial Letters of Credit shall be capped at an aggregate face value of $35,000,000. No Swing Line Borrowings shall be permitted.

 

Letters of Credit: The terms of the A&R Credit Agreement will permit Letters of Credit to remain outstanding with termination dates that extend up to 6 months past the Extended Revolving Credit Facility Maturity Date, so long as each such Letter of Credit is cash collateralized in an amount equal to 105% of face value of each such Letter of Credit on or before 95 days prior to the Extended Revolving Credit Facility Maturity Date, pursuant to documentation in form and substance reasonably satisfactory to each respective L/C Issuer, and prior to such Cash Collateralization, 105% of the aggregate amount to be drawn under such Letters of Credit will be deemed L/C Obligations.2 

 

 

2Provisions will not affect availability under commitment for Revolving Credit Loans.

 

2

 

      

The restrictions on Letter of Credit issuance enumerated in Section 2.03(a)(vii) of the Existing Credit Agreement shall be removed in the A&R Credit Agreement, provided that the aggregate face value of L/C Credit Extensions on account of the operations of SPIG S.p.A. and its subsidiaries and on account of Vølund Projects shall not exceed $90,000,000 in the aggregate.

 

Payment and Waiver of Fees: Upon the consummation of the Refinancing a portion of outstanding Deferred Ticking Fee, the fees under Section 4(d)(i)(b) of Amendment No. 6 (the “Outstanding Amendment No. 6 Fees”) and the Other Amendment Fees (as defined under Amendment No. 16) shall be paid, waived or maintained, as applicable, as follows:

 

(a) $8,902,999.87 of the aggregate amount of the outstanding Deferred Ticking Fees and Other Amendment Fees shall be waived;3

 

(b) an amount equal to $7,000,000 shall be paid in cash on the effective date of the A&R Credit Agreement (the “Amendment and Restatement Fees”), the payment of which will result in the partial satisfaction of (i) Deferred Ticking Fees and Other Amendment Fees in an amount equal to $2,250,000 after the partial waiver thereof described in clause (a) and (ii) Deferred Facility Fees outstanding in an amount equal to $4,750,000; and

 

(c) the remainder of the outstanding Deferred Ticking Fees and Other Amendment Fees shall be payable on the last day of the Availability Period with respect to the Revolving Credit Facility; provided that the Deferred Ticking Fees and Other Amendment Fees shall be waived in the amounts set forth below, if the Revolving Credit Facility Termination Date occurs on or before the date as set forth below:

 

Date Aggregate Waived Amount
December 31, 2020 The remaining Deferred Ticking Fees and Other Amendment Fees
January 31, 2021 $8,662,500.00

  

 

3Unless specified, the Administrative Agent may apply waived amounts and payments to be applied to the aggregate Deferred Ticking Fees and Other Amendment Fees in its discretion.

 

3

 

  

February 28, 2021 $7,875,000.00
March 31, 2021 $7,087,500.00
April 30, 2021 $6,300,000.00
May 31, 2021 $5,512,500.00
June 30, 2021 $4,725,000.00
July 31, 2021 $3,937,500.00
August 31, 2021 $3,150,000.00
September 30, 2021 $2,362,500.00
October 31, 2021 $1,575,000.00
November 30, 2021 $787,500.00

 

provided that, if (A) the Borrow obtains a binding commitment or commitments for a refinancing the occurrence of which would result in the Revolving Credit Facility Termination Date, (B) such commitment or commitments are conditioned solely on such financing source’s or sources’ receipt of audited financial statements for the 2020 Fiscal Year, (C) the Borrower has delivered copies of such commitment or commitments to the Administrative Agent within one (1) Business Day of the latest effective date of such commitment or commitments and (D) the Revolving Credit Facility Termination Date actually occurs on or prior to March 31, 2021 as a result of such commitment or commitments, then the Revolving Credit Facility Termination Date will be deemed to have occurred, solely for the purposes of this clause (c), on the latest effective date of such commitment or commitments.

 

Further, upon the consummation of the Refinancing, the fee of $120,000 set forth under Section 2(b) of Amendment No. 11, dated as of October 4, 2018 shall be waived.

 

For the avoidance of doubt, the Deferred Facility Fee and Outstanding Amendment No. 6 Fees shall not be waived.

 

Interest/ Fees: Applicable Rate with respect to:

 

Revolving Credit LoansL+5.00%; Base Rate + 4.00%.

 

Letters of Credit4.00% (Financial and Performance)

 

4

 

  

o The portion of Letters of Credit with coverage in the Recovery Event Proceeds Account:4 1.50%

 

Annual Facility Fee: None.

 

Mandatory Prepayments/Cash Collateralization: Borrower shall make mandatory prepayments and cash collateralization payments relating to the receipt of Net Cash Proceeds from Asset Sales, Recovery Events and the issuance of certain Indebtedness consistent with the Existing Credit Agreement (for the avoidance of doubt, as if the Relief Period were in effect). For the avoidance of doubt, the Amended Credit Agreement shall not include the mandatory prepayment set forth in Section 2.05(b)(vi) of the Existing Credit Agreement (anti cash-hording)

 

Mandatory prepayments will be applied in a manner substantially consistent with the Existing Credit Agreement (as amended by Amendment No. 20 and, for the avoidance of doubt, as if the Relief Period were in effect).

 

Commitment Reductions: The commitments under Revolving Credit Facility/Letter of Credit facility shall be mandatorily reduced in the amount of the above described mandatory prepayments (other than with respect to mandatory prepayments relating to Recovery Events) in the same manner as set forth in the Existing Credit Agreement (for the avoidance of doubt, as if the Relief Period were in effect).

 

Collateral: To match the Collateral under the Existing Credit Agreement.

 

Conditions Precedent to Closing: For conditions precedent to the effectiveness of the A&R Credit Agreement, see Annex F to Amendment No. 20.

 

Borrowing Conditions: Customary conditions, to include no Default or Event of Default, and bringdown of representations and warranties.

 

Representations and Warranties: Substantially consistent with the representations and warranties under the Existing Credit Agreement.

 

Affirmative Covenants: Substantially consistent with the affirmative covenants under the Existing Credit Agreement, provided that:

 

The A&R Credit Agreement will modify Section 6.29 (Variance and Cash Flow Reporting) such that, if average daily Liquidity for the most recent 2 fiscal quarters is above $80,000,000, (i) a Budget update will only be required every other month and (ii) only negative cumulative variances in excess of 10% for the period covered by the most recently delivered Budget will require explanation. Reporting requirements as set forth in the Existing Credit Agreement will be maintained during the periods such test is not satisfied.

  

 

4As defined in the Existing Credit Agreement (as amended by Amendment No. 20).

 

5

 

  

Section 6.28 (Consultant) and Section 6.33 (Chief Implementation Officer) will not be included in the A&R Credit Agreement.

 

Section 6.31 (Information Updates) shall be modified to require (i) monthly advisor calls in lieu of bi-weekly calls and (ii) quarterly lender calls in lieu of monthly calls.

 

Negative Covenants: Substantially consistent with the negative covenants under the Existing Credit Agreement, provided that:  

 

The A&R Credit Agreement will modify Section 7.01(Indebtedness) to include a third party letter of credit basket in an aggregate amount not to exceed $50,000,000. Upon a drawing or maturing of such obligations with respect to such letters of credit, such obligations or funded guaranties in respect thereof shall be deemed to convert into last out secured term loans on the same terms as the Tranche A-3 Term Loans under the Existing Credit Agreement and, prior to any issuance, the Administrative Agent shall be satisfied with the compliance under any applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, of any applicant thereunder that may become a term lender upon such drawing or maturation pursuant to a joinder to the A&R Credit Agreement.

 

The A&R Credit Agreement will be modified to permit the Refinancing, including modifications to the subordination provisions to permit cashless prepayments in connection with the Refinancing.

 

The A&R Credit Agreement will modify Section 7.05 (Restricted Payments) to permit holders of Stock and Stock Equivalents in the Borrower to receive a cash dividend at the end of each fiscal quarter not to exceed $6,000,000, less the Interest Expense with respect to the Term Loan Facility for such fiscal quarter (subject to proration for the first fiscal quarter ending after the Refinancing Date), except as modified with the written consent of the Administrative Agent and the Required Lenders, subject to no continuing Default or Event of Default under the A&R Credit Agreement.

 

The A&R Credit Agreement will delete Section 7.19 (Additional Charges [with respect to Vølund Projects]).

 

The A&R Credit Agreement will further modify certain negative covenants as set forth in the chart attached hereto as Exhibit A.

 

6

 

  

Financial Covenants: The Borrower shall not permit (x) the Interest Coverage Ratio as of the last day of any fiscal quarter to be less than and (y) the gross leverage ratio as of the last day of any fiscal quarter to be more than the ratios set forth in the chart attached hereto as Exhibit B and further based on the principal amount of Indebtedness relating to the Refinancing outstanding on the Refinancing Date (including Stock or Stock Equivalents that are mandatorily redeemable valued at its liquidation preference).

 

“Financial Covenant Debt” shall be modified to include Term Loan Indebtedness.

 

Equity Cure Rights: For purposes of determining compliance with the financial covenants, any proceeds from equity issuances or cash equity contributions (which equity will be in the form of common equity or other “qualified” equity having terms reasonably acceptable to the Administrative Agent) made to the Borrower after the end of a fiscal quarter and on or prior to the day that is 10 Business Days after the day on which financial statements are required to be delivered for such fiscal quarter will, at the request of the Borrower, be included in the calculation of EBITDA solely for the purposes of determining compliance with the financial covenants at the end of such fiscal quarter and each applicable subsequent period that includes such quarter (any such equity contribution so included in the calculation of EBITDA, a “Specified Equity Contribution”); provided that (a) in each four consecutive fiscal quarter period there will be no more than 2 fiscal quarters in which a Specified Equity Contribution is made, (b) no more than 2 Specified Equity Contributions may be made prior to the Revolving Credit Facility Termination Date, (c) the amount of any Specified Equity Contribution in any period will be no greater than the amount required to cause the Borrower to be in compliance with the financial covenants for such period, (d) each Specified Equity Contribution shall increase EBITDA solely for the purposes of computing quarter-end compliance with the financial covenants and shall not be included for the purpose of determining the availability or amount of any covenant baskets or carve- outs, pricing or for any other purpose, (e) such Specified Equity Contribution shall not result in any reduction of indebtedness in the calculation of the financial covenants in the fiscal quarter in which the Specified Equity Contribution is made, (f) no Specified Equity Contribution held by the Borrower or any of its Subsidiaries shall qualify as “unrestricted cash or Cash Equivalents of the Borrower Parties” for the purpose of calculating minimum required Liquidity.

 

Minimum Liquidity: The A&R Credit Agreement shall modify Section 7.18 (Minimum Liquidity) to increase the minimum required Liquidity from $30,000,000 to $40,000,000. Further, the definition of Liquidity shall be modified to exclude cash of Non-Loan Parties in an amount in excess of $30,000,000.

 

Board Seats: The number of members of the board of directors of the Borrower (the “Board of Directors”) shall (i) shall either remain as 7 members and B. Riley shall have the right to elect 3 of such members or (ii) shall be reduced to 5 members and B. Riley shall have the right to elect 2 of such members. The A&R Credit Agreement shall modify the definition of Change of Control accordingly.

 

7

 

 

Events of Default: Substantially consistent with the events of default under the Existing Credit Agreement.

 

Voting: As set forth in the Existing Credit Agreement.

 

Governing Law and Submission  to Jurisdiction: New York.

 

Counsel to Borrower: King & Spalding LLP

 

Counsel to Administrative Agent: Freshfields Bruckhaus Deringer US LLP

  

8

 

  

Exhibit A

Negative Covenants Modification Chart

[Please see the attached]

 

9

 

 

EXHIBIT A

 

B&W Credit Agreement–Negative Covenants Modifications Chart

 

 

Section Basket Treatment
Indebtedness
7.01(d)

Indebtedness in the form of:

(i) Capital Lease Obligations and purchase money obligations for tangible property,

(ii) of sale and leaseback and

(iii) other secured Indebtedness (including secured Indebtedness incurred or assumed by the Borrower and its Subsidiaries in connection with a Permitted Acquisition).

Maintain the Relief Period aggregate principal amount cap of all such Indebtedness outstanding at $50,000,000, which includes up to $10,000,000 of sale and leaseback Indebtedness to the extent permitted under Section 7.13.
7.01(f(x)) Intercompany Indebtedness owing to a Loan Party. Limit intercompany Indebtedness owing to a Loan Party by a Foreign Subsidiary that is not a Loan Party to transactions that are ordinary course and consistent with past practice.
7.01(i) Unsecured Indebtedness of any Subsidiary (other than a Guarantor).

To be capped at $15,000,000. 

The aggregate outstanding principal amount of all Indebtedness pursuant to Section 7.01(i) and Section 7.01(o) shall not exceed $25,000,000 at any time [existing cap $7,500,000].

7.01(o) Unsecured Indebtedness of any Loan Party so long as at the time of incurrence of such Indebtedness (i) no Default has occurred and is continuing or would result therefrom and (ii) the Borrower and its Subsidiaries are in pro forma compliance with the financial covenants set forth in Section 7.16 (interest coverage and leverage ratios) immediately before and after giving effect to the incurrence of such Indebtedness. The aggregate outstanding principal amount of all Indebtedness pursuant to Section 7.01(i) and Section 7.01(o) shall not exceed $25,000,000 at any time [existing cap $7,500,000].
Liens
7.02(n) Liens not otherwise permitted by Section 7.02 securing obligations. The aggregate outstanding amount of all such obligations secured by such Liens shall not exceed $10,000,000 [existing cap $4,000,000].

 

 

 

  

Section Basket Treatment
7.02(q) Liens on cash or Cash Equivalents securing (i) reimbursement obligations in respect of Performance Guarantees and other similar obligations (including any obligation to make payments in connection with such performance, but excluding obligations for the payment of borrowed money) and (ii) Swap Contracts that are not speculative in nature. Maintain the Relief Period aggregate principal amount cap of $25,000,000.
Investments
7.03(h) Investments in connection with a Permitted Acquisition. Such acquisitions require the following: (a) approval by board of Acquired Entity, (b) Acquired Entity shall be in an Eligible Line of Business, (c) compliance with guarantee/collateral requirements, (d) no Default, (e) pro forma compliance immediately before and after giving effect to the acquisition with a maximum leverage ratio of 4.00x [existing requirement is 0.25x within financial covenant maximum leverage ratio], provided that if the acquisition is directly funded by issuances of equity not mandatorily redeemable or equity contributions, solely pro forma compliance with the financial covenant set forth in Section 7.16(b) (leverage ratio) immediately before and after giving effect to the acquisition is required, (f) certificate as to compliance for all such acquisitions, (g) Borrower or guarantor is surviving party and (h) such acquisition is to be made by a Loan Party that is the Borrower or a Domestic Subsidiary.
7.03(e) Intercompany Investments in Wholly-Owned Subsidiaries. Limit intercompany investments made by a Loan Party in a Foreign Subsidiary that is not a Loan Party to transactions that are ordinary course and consistent with past practice.
7.03(l) Other Investments not constituting Acquisitions by the Borrower or any Subsidiary made after the Closing Date. The aggregate outstanding amount of all such Investments at any time shall not exceed $15,000,000 [existing cap of zero for investments made any time after the Amendment No. 3 Effective Date].
Asset Sales
7.04(d(i)) Asset Sales to the Borrower or any Guarantor. Asset Sales between Loan Parties and Foreign Subsidiaries that are not Loan Parties shall not be permitted.

 

2

 

  

Section Basket Treatment
7.04(i) The Non-Cash Consideration with respect to the general Asset Sale basket. Maintain the Relief Period prohibition on the use of Non-Cash Consideration basket.
7.04(j) Any single transaction or series of related transactions so long as neither such single transaction nor such series of related transactions involves assets having a Fair Market Value of more than $2,000,000. Increase cap to $5,000,000.
Miscellaneous
7.08 Transactions with Affiliates. Transactions as described in the Refinancing Term Sheet. permitted.
7.13 Sale Leasebacks. The Borrower shall not, and shall not permit any of its Subsidiaries to, enter into any sale and leaseback transaction unless (x) the Fair Market Value of all properties covered at any one time by all sale leaseback transactions does not exceed $10,000,000 and (y) limited to sale leaseback of the (i) Copley property and (ii) Esjberg facility
7.21 Use of Vølund Projects Letters of Credit: The Borrower and Subsidiaries shall not use any Letter of Credit issued on account of any Vølund Project for any purpose other than for credit support for the underlying insurance guaranties supported by such Letter of Credit and in existence on the Amendment No. 13 Effective Date without the consent of the Required Lenders. Covenant to be deleted.

 

3

 

  

Exhibit B

 

Gross Leverage Ratio

 

Refinancing Indebtedness Less than or equal to $175,000,000 Less than or equal to $200,000,000 Less than or equal to $225,000,000 Less than or equal to $250,000,000 More than $250,000,000
June 30, 2020 5.50x 6.25x 7.00x 7.50x 8.25x
September 30, 2020 4.50x 5.00x 5.40x 6.00x 6.50x
December 31, 2020 3.25x 3.75x 4.25x 4.50x 5.00x
March 31, 2021 3.00x 3.25x 3.75x 4.00x 4.50x
June 30, 2021 2.75x 3.00x 3.50x 3.75x 4.00x
September 30, 2021 2.40x 2.65x 3.00x 3.30x 3.70x
December 31, 2021 2.40x 2.65x 3.00x 3.30x 3.70x

  

Interest Coverage Ratio

 

Refinancing Indebtedness Less than or equal to $175,000,000 Less than or equal to $200,000,000 Less than or equal to $225,000,000 Less than or equal to $250,000,000 More than $250,000,000
June 30, 2020 1.10x 1.10x 1.10x 1.10x 1.10x
September 30, 2020 1.60x 1.50x 1.50x 1.50x 1.50x
December 31, 2020 2.10x 2.00x 2.00x 2.00x 2.00x
March 31, 2021 2.50x 2.40x 2.40x 2.40x 2.40x
June 30, 2021 2.80x 2.60x 2.60x 2.60x 2.60x
September 30, 2021 3.20x 2.80x 2.80x 2.85x 2.85x
December 31, 2021 3.20x 2.80x 2.80x 2.85x 2.85x

  

 

 

 

ANNEX B

Credit Agreement Amendments

 

 

 

 

CONFORMED THROUGH DRAFT AMENDMENT NO. 19ANNEX B

DATED January 17, 2020

 

 

Published CUSIP Number: 056147AA1

Revolving Credit CUSIP Number: 05614TAB9

 

CREDIT AGREEMENT

dated as of May 11, 2015

(as amended through Amendment No. 19,20, dated as of January 17,31, 2020)

 

among

BABCOCK & WILCOX ENTERPRISES, INC.,

as the Borrower,

BANK OF AMERICA, N.A.,

as Administrative Agent,

Swing Line Lender and an L/C Issuer,

 

and

The Other Lenders Party Hereto

BNP PARIBAS,

JPMORGAN CHASE BANK, N.A.,

WELLS FARGO BANK, NATIONAL ASSOCIATION and

CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

as Co-Syndication Agents

 

BRANCH BANKING AND TRUST COMPANY,

CITIZENS BANK OF PENNSYLVANIA,

COMPASS BANK,

TD BANK, N.A.,

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. and

U.S. BANK NATIONAL ASSOCIATION,

as Co-Documentation Agents

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

BNP PARIBAS SECURITIES CORP.,

J.P. MORGAN SECURITIES LLC,

WELLS FARGO SECURITIES, LLC and

CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

as Joint Lead Arrangers and Joint Book Managers

 

 

 

  

TABLE OF CONTENTS

       
Section   Page
     
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS   1
1.01 Defined Terms   1
1.02 Other Interpretive Provisions 53 61
1.03 Accounting Terms 53 62
1.04 Rounding 54 63
1.05 Exchange Rates; Currency Equivalents 54 63
1.06 Alternative Currencies 55 63
1.07 Times of Day; Rates 55 64
1.08 Letter of Credit Amounts 55 64
1.09 Surviving Provisions Perpetual 55 64
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS   64
2.01 Revolving Credit Loans 56 64
2.01A Tranche A-1 Term Loans 56 65
2.01B Tranche A-2 Term Loans 56 65
2.01C Tranche A-3 Term Loans 56 65
2.01D Tranche A-4 Term Loans   65
2.01E Tranche A-5 Term Loans   66
2.02 Borrowings, Conversions and Continuations of Loans 57 66
2.03 Letters of Credit 59 68
2.04 Swing Line Loans 71 81
2.05 Prepayments 73 84
2.06 Termination or Reduction of Commitments 77 88
2.07 Repayment of Loans 78 90
2.08 Interest 78 90
2.09 Fees 80 92
2.10 Computation of Interest and Fees 82 94
2.11 Evidence of Debt 82 94
2.12 Payments Generally; Administrative Agent’s Clawback 83 95
2.13 Sharing of Payments by Lenders 85 97
2.14 Increase in Revolving Credit Commitments 85 98
2.14A Incremental Term Loans 88 100
2.15 Cash Collateral 89 102
2.16 Defaulting Lenders 91 103
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY 93 106
3.01 Taxes 93 106
3.02 Illegality 98 112
3.03 Inability to Determine Rates 99 112
3.04 Increased Costs; Reserves on Eurocurrency Rate Loans 101 115

 

 

 

       
3.05 Compensation for Losses 103 117
3.06 Mitigation Obligations 103 117
3.07 Survival 104 118
3.08 No Payment to Term Loan Lenders 104 118
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS 104 118
4.01 Conditions of Execution Date 104 118
4.02 Conditions of Closing Date 105 119
4.03 Conditions to Revolving Credit Extensions 110 124
4.04 Conditions to the Initial Tranche A Term Loan Funding 111 125
4.05 Conditions to Incremental Tranche A Term Loan Fundings 111 126
4.06 Conditions to Tranche A-2 Term Loan Borrowing 111 126
4.07 Conditions to Tranche A-3 Term Loan Borrowing 112 126
4.08 Conditions to Tranche A-4 Term Loan Borrowing   126
4.09 Conditions to Tranche A-5 Term Loan Borrowing   126
ARTICLE V REPRESENTATIONS AND WARRANTIES 112 127
5.01 Corporate Existence, Compliance with Law 112 127
5.02 Corporate Power; Authorization; Enforceable Obligations 112 127
5.03 Ownership of Borrower; Subsidiaries 113 128
5.04 Financial Statements 114 129
5.05 Material Adverse Change 114 130
5.06 Solvency 115 130
5.07 Litigation 115 130
5.08 Taxes 115 130
5.09 Full Disclosure 115 130
5.10 Margin Regulations 115 130
5.11 No Burdensome Restrictions; No Defaults 116 131
5.12 Investment Company Act 116 131
5.13 Use of Proceeds 116 131
5.14 Insurance 116 132
5.15 Labor Matters 117 132
5.16 ERISA 117 132
5.17 Environmental Matters 118 134
5.18 Intellectual Property 119 134
5.19 Title; Real Property 119 134
5.20 Security Instruments 120 136
5.21 OFAC 120 136
5.22 Anti-Corruption Laws 121 136
5.23 EEA Financial Institutions 121 137
5.24 Budget 121 137
ARTICLE VI AFFIRMATIVE COVENANTS 124 137
6.01 Financial Statements 121 137
6.02 Collateral Reporting Requirements 123 139
6.03 Default and Certain Other Notices 124 140

 

 

 

       
6.04 Litigation 124 141
6.05 Labor Relations 125 141
6.06 Tax Returns 125 141
6.07 Insurance 125 141
6.08 ERISA Matters 125 141
6.09 Environmental Matters 126 142
6.10 Patriot Act Information 126 143
6.11 Other Information 127 143
6.12 Preservation of Corporate Existence, Etc. 127 143
6.13 Compliance with Laws, Etc. 127 143
6.14 Conduct of Business 127 143
6.15 Payment of Taxes, Etc. 127 143
6.16 Maintenance of Insurance 127 144
6.17 Access 128 144
6.18 Keeping of Books 128 144
6.19 Maintenance of Properties, Etc. 128 144
6.20 Application of Proceeds 128 144
6.21 Environmental 128 145
6.22 Additional Collateral and Guaranties 130 147
6.23 Real Property 131 148
6.24 Further Assurances 132 149
6.25 Anti-Corruption Laws; Sanctions 132 149
6.26 Cash Collateralization of Extended Letters of Credit 133 149
6.27 Post Closing Deliveries 133 150
6.28 Consultant 133 150
6.29 Variance and Cash Flow Reporting 134 151
6.30 Account Control Agreements 134 151
6.31 Information Updates 134 151
6.32 [Reserved] 134 151
6.33 Chief Implementation Officer 135 151
6.34 [Reserved] 135 152
6.35 Net Cash Proceeds from Asset Sales 135 152
6.36 Foreign Collateral; Pledges of Stock and Stock Equivalents 135 152
6.37 [Reserved] Recovery Event Proceeds Account 135 152
6.38 [Reserved]   135
6.39 Corporate Action Milestones   135
ARTICLE VII NEGATIVE COVENANTS 139 153
7.01 Indebtedness 136 153
7.02 Liens 138 155
7.03 Investments 140 157
7.04 Asset Sales 141 159
7.05 Restricted Payments 143 160

 

 

 

       
7.06 Fundamental Changes 144 162
7.07 Change in Nature of Business 144 162
7.08 Transactions with Affiliates 144 162
7.09 Burdensome Agreements 145 164
7.10 Form 10 146 164
7.11 Fiscal Year 146 164
7.12 Use of Proceeds 146 164
7.13 Sale Leasebacks 146 164
7.14 No Speculative Transactions 146 165
7.15 Anti-Corruption Laws 147 165
7.16 Financial Covenants 147 165
7.17 Sanctions 148 166
7.18 Minimum Liquidity 148 166
7.19 Additional Charges 148 166
7.20 Capital Expenditures 148 167
7.21 Use of Vølund Projects Letters of Credit 148 167
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES 152 167
8.01 Events of Default 149 167
8.02 Remedies Upon Event of Default 151 170
8.03 Application of Funds 152 171
ARTICLE IX ADMINISTRATIVE AGENT 157 172
9.01 Appointment and Authority 153 172
9.02 Rights as a Lender 154 173
9.03 Exculpatory Provisions 154 173
9.04 Reliance by Administrative Agent 155 174
9.05 Delegation of Duties 155 175
9.06 Resignation of Administrative Agent 156 175
9.07 Non-Reliance on Administrative Agent and Other Lenders 157 177
9.08 No Other Duties, Etc. 158 177
9.09 Administrative Agent May File Proofs of Claim 158 177
9.10 Collateral and Guaranty Matters 159 179
9.11 Secured Cash Management Agreements and Secured Hedge Agreements 160 180
ARTICLE X MISCELLANEOUS 165 180
10.01 Amendments, Etc. 161 180
10.02 Notices; Effectiveness; Electronic Communication 163 183
10.03 No Waiver; Cumulative Remedies; Enforcement 166 186
10.04 Expenses; Indemnity; Damage Waiver 166 187
10.05 Payments Set Aside 169 190
10.06 Successors and Assigns 170 190
10.07 Treatment of Certain Information; Confidentiality 175 196
10.08 Right of Setoff 176 198
10.09 Interest Rate Limitation 177 198
10.10 Counterparts; Integration; Effectiveness 177 198

 

 

 

       
10.11 Survival of Representations and Warranties 177 199
10.12 Severability 178 199
10.13 Replacement of Lenders 178 199
10.14 Governing Law; Jurisdiction; Etc. 179 200
10.15 Waiver of Jury Trial 180 201
10.16 No Advisory or Fiduciary Responsibility 180 202
10.17 Electronic Execution of Assignments and Certain Other Documents 181 202
10.18 Judgment Currency 181 203
10.19 Acknowledgement and Consent to Bail-In of EEA Financial Institutions 181 203
10.20 Parallel Debt 182 204
10.21 Acknowledgement Regarding Any Supported QFCs   205
ARTICLE XI ADDITIONAL SUBORDINATION TERMS 188 206
11.01 Payment Subordination 183 206
11.02 Turnover 183 206
11.03 Financing Matters 184 207
11.04 Adequate Protection 184 208
11.05 Voting Matters 185 208
11.06 Right to Appear 185 208
11.07 Indemnification; Release 185 208
11.08 Enforceability 186 209
11.09 Article XI; Generally 186 209
       

 

 

 

 

SCHEDULES

 

1.01(a) Affiliate Agreements
1.01(b) Initial Guarantors
2.01 Commitments and Applicable Percentages
4.02(a)(iii) Mortgaged Properties
5.02 Consents
5.03 Ownership of Subsidiaries
5.04 Supplement to Financial Statements
5.07 Litigation
5.19(b) Real Property
6.36 Pledges of Stock and Stock Equivalents; Account Control Agreements
7.01 Existing Indebtedness
7.02 Existing Liens
7.03 Existing Investments
10.02 Administrative Agent’s Office; Certain Addresses for Notices

 

EXHIBITS

 

  Form of
A Committed Loan Notice
B Swing Line Loan Notice
C Note
D Compliance Certificate
E-1 Assignment and Assumption
E-2 Administrative Questionnaire
F Guaranty
G Collateral Agreement
H Forms of U.S. Tax Compliance Certificates

 

 

 

 

CREDIT AGREEMENT

 

This CREDIT AGREEMENT is entered into as of May 11, 2015, among BABCOCK & WILCOX ENTERPRISES, INC., a Delaware corporation, as the borrower hereunder (the “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and an L/C Issuer.

 

The Borrower has requested that the Revolving Credit Lenders provide a revolving credit facility and that the Term Loan Lenders provide a term loan facility, and the respective Lenders are willing to do so on the terms and conditions set forth herein.

 

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

 

ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS

 

Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:

 

2019 Term Loan Lender Expenses” has the meaning specified in Section 10.04(a).

 

“2020 Refinancing Backstop Commitment Letter” means that certain letter regarding the backstop financing commitment, dated as of or around the Amendment No. 20 Effective Date, between Borrower and B. Riley FBR, Inc.

 

“2020 Term Loan Lender Expenses” has the meaning specified in Section 10.04(a).

 

Acquired Entity” means a Person to be acquired, or whose assets are to be acquired, in an Acquisition.

 

Acquisition” means, by way of any single transaction or a series of related transactions, the acquisition of all or substantially all of (a) the assets of an Acquired Entity, (b) the assets constituting what is known to the Borrower to be all or substantially all of the business of a division, branch or other unit operation of an Acquired Entity, or (c) the Stock and Stock Equivalents (other than director’s qualifying shares and the like, as may be required by applicable Requirements of Law) of, an Acquired Entity.

 

Additional Lender” has the meaning specified in Section 2.14(b).

 

Additional Cashless Term Loan Prepayment” has the meaning specified in the definition of “Additional Term Loan Prepayment”.

 

Additional Term Lender” has the meaning specified in Section 2.14A(b).

 

1

 

 

Additional Term Loan Prepayment” means the optional prepayment of the principal amount of Term Loans by the Borrower pursuant to Section 2.05(a)(i), which prepayments (i) shall occur prior to the Additional Term Loan Prepayment Transaction Deadline, (ii) shall not exceed in an aggregate principal amount $86,000,000, plus the interest payable pursuant to Section 2.05(a)(i) on the applicable prepayment date, (iii) shall be financed by the Net Cash Proceeds received by the Borrower pursuant to a rights offering of Stock or Stock Equivalents (other than Disqualified Stock) of the Borrower backstopped by any or all of the Term Loan Lenders or Affiliates thereof (a “Qualified Rights Offering”), provided that, notwithstanding the foregoing, the Term Loan Lenders may convert or exchange any Term Loans (including a principal amount of such Term Loans in excess of $86,000,000) into such Stock or Stock Equivalents by reducing the principal amount of Term Loans in exchange for their participation in such rights offering on a dollar-for dollar basis (such Additional Term Loan Prepayment, an “Additional Cashless Term Loan Prepayment”).

 

Additional Term Loan Prepayment Extension Certificate” means a certificate of either (a) a Responsible Officer or (b) any Term Loan Lender certifying that a Qualified Rights Offering has not occurred solely as a result of an SEC review of such rights offering or such other circumstance beyond the control of the Borrower.

 

Additional Term Loan Prepayment Transaction Deadline” means (x) October 5, 2019 or (y) if the Administrative Agent shall have received an Additional Term Loan Prepayment Extension Certificate, January 6, 2020.

 

Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

 

Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.

 

Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit E-2 or any other form approved by the Administrative Agent.

 

Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

 

[***] Drawing Certificate” means a certificate of the Tranche A-5 Term Loan Lender certifying that (i) an amount equal to the proposed Tranche A-5 Term Loan Borrowing has been drawn under the [***] Letter of Credit and (ii) the Borrower has reimbursement obligations due to the Tranche A-5 Term Loan Lender in such amount.

 

“[***] Letter of Credit” means a letter of credit, bankers acceptance, surety bond, performance bond, bank guarantee or other similar obligation issued to or obligated to be settled by B. Riley Financial, Inc., in form and substance reasonably satisfactory to the Administrative Agent and the Revolving Credit Lenders, to secure ordinary course performance obligations of the Borrower and its Subsidiaries in connection with bidding, procurement, engineering, construction and maintenance for the prospective “New Madrid” project located in Missouri.

 

2

 

 

Affiliate Agreements” means, collectively, the agreements listed on Schedule 1.01(a) hereto.

 

Aggregate Commitments” means the Commitments of all the Lenders.

 

Aggregate Revolving Credit Commitment” means the Revolving Credit Commitments of all the Revolving Credit Lenders.

 

Aggregate Term Loan Commitment” means the Term Loan Commitments of all the Term Loan Lenders.

 

Agreement” means this Credit Agreement.

 

Alternative Currency” means, with respect to any Letter of Credit, those currencies (other than Dollars) that are approved by the L/C Issuer issuing such Letters of Credit in accordance with Section 1.06.

 

Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.

 

Alternative Currency Sublimit” means an amount equal to the lesser of the Revolving Credit Facility and $300,000,000. The Alternative Currency Sublimit is part of, and not in addition to, the Revolving Credit Facility.

 

Amendment No. 2” means that certain Amendment No. 2 dated as of the Amendment No. 2 Effective Date by and among the Loan Parties, the Administrative Agent and the Lenders party thereto.

 

Amendment No. 2 Effective Date” means February 24, 2017, the date on which the conditions precedent to the effectiveness of Amendment No. 2 were satisfied.

 

Amendment No. 3” means that certain Amendment No. 3, dated as of the Amendment No. 3 Effective Date, by and among the Borrower, the Administrative Agent and the Lenders party thereto, and acknowledged and agreed by the Guarantors.

 

3

 

 

Amendment No. 3 Effective Date” means August 9, 2017, the date on which the conditions precedent to the effectiveness of Amendment No. 3 were satisfied.

 

Amendment No. 5” means that certain Amendment No. 5, dated as of the Amendment No. 5 Effective Date, by and among the Borrower, the Administrative Agent and the Lenders party thereto, and acknowledged and agreed by the Guarantors.

 

Amendment No. 5 Effective Date” means March 1, 2018, the date on which the conditions precedent to the effectiveness of Amendment No. 5 were satisfied.

 

Amendment No. 6” means that certain Amendment No. 6, dated as of the date of the Amendment No. 6 Effective Date, by and among the Borrower, the Administrative Agent and the Lenders party thereto, and acknowledged and agreed by the Guarantors.

 

Amendment No. 6 Effective Date” means April 10, 2018, the date on which the conditions precedent to the effectiveness of Amendment No. 6 were satisfied.

 

Amendment No. 8” means that certain Amendment No. 8, dated as of the Amendment No. 8 Effective Date, by and among the Borrower, the Administrative Agent and the Lenders party thereto, and acknowledged and agreed by the Guarantors.

 

Amendment No. 8 Effective Date” means August 9, 2018, the date on which the conditions precedent to the effectiveness of Amendment No. 8 were satisfied.

 

Amendment No. 9” means that certain Amendment No. 9, dated as of the Amendment No. 9 Effective Date, by and among the Borrower, the Administrative Agent and the Lenders party thereto, and acknowledged and agreed by the Guarantors.

 

Amendment No. 9 Closing Fee” shall mean the “Closing Fee” as defined in Amendment No. 9.

 

Amendment No. 9 Effective Date” means September 14, 2018, the date on which the conditions precedent to the effectiveness of Amendment No. 9 were satisfied.

 

Amendment No. 12” means that certain Amendment No. 12, dated as of the date of the Amendment No. 12 Effective Date, by and among the Borrower, the Administrative Agent and the Lenders party thereto, and acknowledged and agreed by the Guarantors.

 

Amendment No. 12 Effective Date” means October 31, 2018, the date on which the conditions precedent to the effectiveness of Amendment No. 12 were satisfied. “Amendment No. 13” means that certain Amendment No. 13, dated as of the date of the Amendment No. 13 Effective Date, by and among the Borrower, the Administrative Agent and the Lenders party thereto, and acknowledged and agreed by the Guarantors.

 

4

 

 

Amendment No. 13 Effective Date” means December 19, 2018, the date on which the conditions precedent to the effectiveness of Amendment No. 13 were satisfied.

 

Amendment No. 14” means that certain Amendment No. 14, dated as of the date of the Amendment No. 14 Effective Date, by and among the Borrower, the Administrative Agent and the Lenders party thereto, and acknowledged and agreed by the Guarantors.

 

Amendment No. 14 Effective Date” means January 15, 2019, the date on which the conditions precedent to the effectiveness of Amendment No. 14 were satisfied.

 

Amendment No. 15” means that certain Amendment No. 15 and Limited Waiver, dated as of the date of the Amendment No. 15 Effective Date, by and among the Borrower, the Administrative Agent and the Lenders party thereto, and acknowledged and agreed by the Guarantors.

 

Amendment No. 15 Effective Date” means March 19, 2019, the date on which the conditions precedent to the effectiveness of Amendment No. 15 were satisfied.

 

Amendment No. 16” means that certain Amendment No. 16, dated as of the date of the Amendment No. 16 Effective Date, by and among the Borrower, the Administrative Agent and the Lenders party thereto, and acknowledged and agreed by the Guarantors.

 

Amendment No. 16 Effective Date” means April 5, 2019, the date on which the conditions precedent to the effectiveness of Amendment No. 16 were satisfied.

 

“Amendment No. 20” means that certain Amendment No. 20, dated as of the date of the Amendment No. 20 Effective Date, by and among the Borrower, the Administrative Agent and the Lenders party thereto, and acknowledged and agreed by the Guarantors.

 

“Amendment No. 20 Effective Date” means January [__], 2020, the date on which the conditions precedent to the effectiveness of Amendment No. 20 were satisfied.

 

Anti-Corruption Laws” means all laws, rules and regulations of any jurisdiction applicable to the Borrower or any of its Subsidiaries from time to time concerning or relating to bribery or corruption, including, without limitation, the United States Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010, each as amended.

 

5

 

 

Applicable Percentage” means (a) with respect to the Term Loan Facility, with respect to any Term Loan Lender at any time, the percentage (carried out to the ninth decimal place) of the Term Loan Facility represented by (i) at any time during the Availability Period in respect of such Facility, such Term Loan Lender’s Term Loan Commitment at such time, subject to adjustment as provided in Section 2.16, plus the principal amount of such Term Loan Lender’s Term Loans at such time, and (ii) thereafter, the principal amount of such Term Loan Lender’s Term Loans at such time and (b) in respect of the Revolving Credit Facility, with respect to any Revolving Credit Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Credit Facility represented by such Lender’s Revolving Credit Commitment at such time, subject to adjustment as provided in Section 2.16. If the Revolving Credit Commitment of each Lender to make Loans and the obligation of each L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02 or if the Aggregate Revolving Credit Commitments have expired, then the Applicable Percentage of each Lender in respect to the applicable Facility shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments. The Applicable Percentage of each Lender as of the Amendment No. 9 Effective Date in respect of the Term Loan Facility and the Revolving Credit Facility, respectively, is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

 

Applicable Rate” means a percentage per annum equal to: 

         
For calendar year ending 2,018   2019 2020
Revolving Credit Loans that are Eurocurrency Rate Loans
 
5.00% 6.00% 7.00%
Revolving Credit Loans that are Base Rate Loans
 
4.00% 5.00% 6.00%
Commitment fee incurred pursuant to Section 2.09(a)
 
1.00% 1.00% 1.00%
Letter of Credit Fees for Financial Letters of Credit
 
2.50% 2.50% 2.50%
Performance Letter of Credit Fees / Commercial Letter of Credit Fees
 
1.50% 1.50% 1.50%
Term Loans that are Eurocurrency Rate Loans
 
14.00% 14.00% 14.00%
Term Loans that are Base Rate Loans
 
13.00% 13.00% 13.00%

 

 

provided that during the period commencing on the Amendment No. 5 Effective Date until the occurrence of a Recapitalization Transaction, “Applicable Rate” shall mean (a) 7.00%, with respect to Revolving Credit Loans that are Eurocurrency Rate Loans and (b) 6.00%, with respect to Revolving Credit Loans that are Base Rate Loans.

 

6

 

 

Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

Arranger” means MLPFS, BNP Paribas Securities Corp., J.P. Morgan Securities LLC, Wells Fargo Securities, LLC and Crédit Agricole Corporate and Investment Bank, each in its capacity as a joint lead arranger and joint book manager.

 

Asset Sale” has the meaning specified in Section 7.04.

 

Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit E-1 or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.

 

Availability Period” means (a) in respect of the Revolving Credit Facility, the period from and including the Closing Date to the earliest of (i) the Revolving Credit Facility Maturity Date, (ii) the date of termination of the Aggregate Revolving Credit Commitments pursuant to Section 2.06, and (iii) the date of termination of the Commitment of each Revolving Credit Lender to make Revolving Credit Loans and of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant to Section 8.02 and8.02, (b) in respect of the Term Loan Facility, the period from and including the Amendment No. 9 Effective Date to the earliest of (i) the Term Loan Facility Maturity Date, (ii) the date of termination of the Aggregate Term Loan Commitments pursuant to Section 2.06, (iii) the date of termination of the Commitment of each Term Loan Lender to make Term Loans pursuant to Section 8.02 and (iv) the date of the reduction of the Tranche A-1 Term Loan Commitment to zero as a result of Term Loan Borrowings made under Section 2.01A, and (c) in respect of the Tranche A-5 Term Loan Commitment, the period from and including the Amendment No. 20 Effective Date to the earlier of (i) the date the Tranche A-5 Term Loan Lender has provided the Administrative Agent with written notice of the termination of the Tranche A-5 Term Loan Commitment and (ii) the Term Loan Facility Maturity Date.

 

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

 

Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

 

Bank of America” means Bank of America, N.A. and its successors.

 

7

 

 

Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate” and (c) the Eurocurrency Rate determined in accordance with clause (b) of the definition thereof, plus 1.00%; provided that if the Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in the “prime rate” announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

 

Base Rate Loan” means a Term Loan or Revolving Credit Loan, as the context requires, that bears interest based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.

 

Borrower” has the meaning specified in the introductory paragraphs hereto.

 

Borrower Materials” has the meaning specified in Section 6.01.

 

Borrower’s Accountants” means Deloitte & Touche LLP or another firm of independent nationally recognized public accountants.

 

Borrowing” means a Revolving Credit Borrowing, a Swing Line Borrowing or a Term Loan Borrowing, as the context may require.

 

Budget” means a 13-week cash flow budget of the Borrower and its Subsidiaries, on a consolidated and segment-level basis, in form and substance satisfactory to the Administrative Agent, as may be updated pursuant to Section 6.29.

 

Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Requirements of Law of, or are in fact closed in, the state where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is located and:

 

(a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such day that is also a London Banking Day; and

 

(b) if such day relates to any determination of the Spot Rate pursuant to this Agreement, means any such day on which banks are open for foreign exchange business in the principal financial center of the country of the relevant Alternative Currency for which the Spot Rate is being determined.

 

8

 

 

BWC” means The Babcock & Wilcox Company, a Delaware corporation, and (as of the date hereof, and prior to the Spinoff) the direct or indirect owner of 100% of the equity interests of the Borrower.

 

BWPGG” means Babcock & Wilcox Power Generation Group, Inc., a Delaware corporation.

 

Capital Expenditures” means, with respect to any Person for any period, the amount of all expenditures by such Person and its Subsidiaries during such period that are capital expenditures as determined in accordance with GAAP, whether such expenditures are paid in cash or financed.

 

Capital Lease” means, with respect to any Person, any lease of (or other arrangement conveying the right to use) property by such Person as lessee that would be accounted for as a capital lease on a balance sheet of such Person prepared in conformity with GAAP.

 

Capital Lease Obligations” means, with respect to any Person, the capitalized amount of all obligations of such Person or any of its Subsidiaries under Capital Leases, as determined on a consolidated basis in conformity with GAAP.

 

Captive Insurance Subsidiaries” means, collectively or individually as of any date of determination, those regulated Subsidiaries of the Borrower primarily engaged in the business of providing insurance and insurance-related services to the Borrower, its other Subsidiaries and certain other Persons.

 

Cash Collateralize” means to pledge and deposit with or deliver directly to an L/C Issuer or to the Administrative Agent, for the benefit of the Administrative Agent, any L/C Issuer or any Lender (including the Swing Line Lender), as the context may indicate, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the L/C Issuer or Swing Line Lender benefitting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to (a) the Administrative Agent (but only if the Administrative Agent is a party to such Cash Collateral arrangement) and (b) the applicable L/C Issuer or the Swing Line Lender (as applicable).

 

Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

 

Cash Collateralized Letter of Credit” has the meaning specified in Section 2.03(o).

 

9

 

 

Cash Equivalents” means (a) securities issued or fully guaranteed or insured by the United States government or any agency thereof, (b) certificates of deposit, eurodollar time deposits, overnight bank deposits and bankers’ acceptances of (i) any commercial bank organized under the laws of the United States, any state thereof, the District of Columbia, any foreign bank, or any branch or agency of any of the foregoing, in each case if such bank has a minimum rating at the time of investment of A-3 by S&P or P-3 by Moody’s, or (ii) any Lender or any branch or agency of any Lender, (c) commercial paper, (d) municipal issued debt securities, including notes and bonds, (e) (i) shares of any money market fund that has net assets of not less than $500,000,000 and satisfies the requirements of rule 2a-7 under the Investment Company Act of 1940 and (ii) shares of any offshore money market fund that has net assets of not less than $500,000,000 and a $1 net asset mandate, (f) fully collateralized repurchase agreements, (g) demand deposit accounts and (h) obligations issued or guaranteed by the government or by a governmental agency of Canada, Japan, Australia, Switzerland or a country belonging to the European Union; providedhowever, that (i) all obligations of the type specified in clauses (c) or (d) above shall have a minimum rating of A-1 or AAA by S&P or P-1 or Aaa by Moody’s, in each case at the time of acquisition thereof, (ii) the country credit rating of any country issuing or guaranteeing (or whose governmental agency issues or guarantees) any obligation of the type specified in clause (h) above shall be AA or higher by S&P or an equivalent rating or higher by another generally recognized rating agency providing country credit ratings and (iii) the maturities of all obligations of the type described in clause (b) or (h) above shall not exceed one year from the date of acquisition thereof.

 

Cash Interest Expense” means, with respect to any Person for any period, the Interest Expense of such Person for such period less, to the extent included in the calculation of Interest Expense of such Person for such period, (a) the amount of debt discount and debt issuance costs amortized, (b) charges relating to write-ups or write-downs in the book or carrying value of existing Financial Covenant Debt, (c) interest payable in evidences of Indebtedness or by addition to the principal of the related Indebtedness and (d) interest paid pursuant to the Second Lien Credit Agreement.

 

Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements in the ordinary course of business of the Borrower and its Subsidiaries.

 

Cash Management Bank” means (a) any Person that, at the time it enters into a Cash Management Agreement, is a Revolving Credit Lender or an Affiliate of a Revolving Credit Lender, in its capacity as a party to such Cash Management Agreement, and (b) any Person that is a party to a Cash Management Agreement at the time it or its relevant Affiliate becomes a Revolving Credit Lender (whether on the Closing Date or at a later date pursuant to Section 10.06), in its capacity as a party to such Cash Management Agreement.

 

10

 

 

Change in Law” means the occurrence, (wI) after the date of this Agreement, with respect to the Revolving Credit Lenders and the L/C Issuer, (xII) after the Amendment No. 9 Effective Date, with respect to the Tranche A-1 Term Loan Lenders, (yIII) after the Amendment No. 15 Effective Date, with respect to the Tranche A-2 Term Loan Lenders and, (zIV) after the Amendment No. 16 Effective Date, with respect to the Tranche A-3 Term Loan Lenders, and (V) after the Amendment No. 20 Effective Date, with respect to the Tranche A-4 Term Loan Lenders and the Tranche A-5 Term Loan Lender, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

Change of Control” means an event or series of events by which:

 

(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding (i) any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan and (ii) underwriters in the course of their distribution of Voting Stock in an underwritten registered public offering provided such underwriters shall not hold such Stock for longer than five Business Days) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of more than 30% of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis; provided that it shall not be deemed to be a Change of Control if Vintage Capital Management, LLC, B. Riley FBR, Inc. or a related “person” or “group” acceptable to the Administrative Agent and the Required Lenders becomes the beneficial owner of more than 30% of such equity securities of the Borrower pursuant simultaneously with or after the Recapitalization Transaction or the Qualified Rights Offering (and any related Additional Cashless Term Loan Prepayment); or

 

11

 

 

(b) during any period of twelve consecutive calendar months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; provided that individuals who are elected or appointed as members of the board of directors or other equivalent governing body in connection with the Spinoff (to the extent consistent with the Form 10 Transactions) shall, from and after the date the Spinoff is consummated, be deemed to be members of the board of directors or equivalent governing body pursuant to clause (i) above; provided further that individuals who are appointed by B. Riley FBR, Inc., Vintage Capital Management, LLC or their respective Affiliates as members of the board of directors or other equivalent governing body in connection with the Qualified Rights Offering shall, before and after the date the Qualified Rights Offering is consummated, be deemed to be members of the board of directors or equivalent governing body pursuant to clause (i) above.

 

China JV” means the equity interests in Babcock & Wilcox Beijing Co., Ltd.

 

Closing Date” means the first date all the conditions precedent in Section 4.02 are satisfied or waived in accordance with Section 10.01.

 

CIO” has the meaning set forth in Section 6.33.

 

Code” means the Internal Revenue Code of 1986.

 

Collateral” means, collectively, the Pledged Interests and all other personal and real property of the Borrower, any Guarantor or any other Person in which the Administrative Agent or any Secured Party is granted a Lien under any Security Instrument as security for all or any portion of the Obligations or any other obligation arising under any Loan Document.

 

Collateral Agreement” means the Pledge and Security Agreement dated as of the Closing Date by the Borrower and the Guarantors to the Administrative Agent for the benefit of the Secured Parties, substantially in the form of Exhibit G.

 

Commitment” means, as to each Lender, the Revolving Credit Commitment and the Term Loan Commitment (as applicable) of such Lender.

 

Commitment Letter” means that certain commitment letter dated as of April 7, 2015 by and among the Borrower, BWPGG, the Arrangers, Bank of America, BNP Paribas, JPMorgan Chase Bank, N.A., Wells Fargo Bank, National Association and Crédit Agricole Corporate and Investment Bank.

 

12

 

 

Commitment Reduction Amount” means (a) with respect to any reduction of the Revolving Credit Facility required by Section 2.06(b) related to a Prepayment Event under clause (a) of the definition thereof, the Net Cash Proceeds of such event required to be utilized pursuant to Section 2.05(b) to make such a prepayment (including any amount that may be retained by the Borrower pursuant to Section 2.05(b)(iv)), provided that (i) the Net Cash Proceeds received from the China JV sale shall not be deemed to be included in this definition of “Commitment Reduction Amount,” (ii) the Net Cash Proceeds received after the Amendment No. 6 Effective Date in connection with Prepayment Events on account of Recovery Events shall be excluded from “Commitment Reduction Amount,” (iii) only 65% of the first $100,000,000 of the Net Cash Proceeds received after the Amendment No. 6 Effective Date in connection with Prepayment Events on account of Asset Sales (other than an Asset Sale pursuant to Section 7.04(p)) shall be deemed to be included in this definition of “Commitment Reduction Amount,” and, (iv) provided that the Initial Tranche A Term Loan Funding has occurred, the first $25,000,000 of the Net Cash Proceeds received in connection with an Asset Sale permitted pursuant to Section 7.04(p) shall be excluded from this definition of “Commitment Reduction Amount” and (b) with respect to the issuance or other incurrence by the Borrower or any of its Subsidiaries during the Relief Period of any unsecured Indebtedness pursuant to either (a) Section 7.01(i) in an aggregate principal amount outstanding in excess of $25,000,000 or (b) Section 7.01(o), in each case other than any such Indebtedness that constitutes Subordinated Debt, an amount equal to 50% of the aggregate principal amount of the incurrence such Indebtedness.

 

Commitment Reduction Event” means any event described in the definition of “Commitment Reduction Amount.”

 

Committed Loan Notice” means a notice of (a) a Term Loan Borrowing, (b) a Revolving Credit Borrowing, (c) a conversion of Loans from one Type to the other, or (d) a continuation of Eurocurrency Rate Loans, pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system, as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.

 

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

 

Compliance Certificate” means a certificate substantially in the form of Exhibit D.

 

Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

 

Consolidated Net Income” means, for any period, the net income (or loss) of the Borrower and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP.

 

Consolidated Tangible Assets” means, as of any date of determination, the difference of (a) the consolidated total assets of the Borrower and its Subsidiaries as of such date, determined in accordance with GAAP, minus (b) all Intangible Assets of the Borrower and its Subsidiaries on a consolidated basis as of such date.

 

Consortium” means any joint venture, consortium or other similar arrangement that is not a separate legal entity entered into by the Borrower or any of its Subsidiaries and one or more third parties, provided that no Loan Party shall, whether pursuant to the Constituent Documents of such joint venture or otherwise, be under any Contractual Obligation to make Investments or incur Guaranty Obligations after the Closing Date, or, if later, at the time of, or at any time after, the initial formation of such joint venture, consortium or similar arrangement that would be in violation of any provision of this Agreement.

 

13

 

 

Constituent Documents” means, with respect to any Person, (a) the articles of incorporation, certificate of incorporation or certificate of formation (or the equivalent organizational documents) of such Person and (b) the bylaws, partnership agreement or operating agreement (or the equivalent governing documents) of such Person.

 

Consultant” means a consultant of recognized national standing acceptable to the Administrative Agent.

 

Contaminant” means any material, substance or waste that is classified, regulated or otherwise characterized under any Environmental Law as hazardous, toxic, a contaminant or a pollutant or by other words of similar meaning or regulatory effect, including any petroleum or petroleum derived substance or waste, asbestos and polychlorinated biphenyls.

 

Contractual Obligation” of any Person means any obligation, agreement, undertaking or similar provision of any Security issued by such Person or of any agreement, undertaking, contract, lease, indenture, mortgage, deed of trust or other instrument (excluding the Loan Documents) to which such Person is a party or by which it or any of its property is bound.

 

Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.

 

Controlling” and “Controlled” have meanings correlative thereto.

 

Control Agreement” means a deposit account control agreement, securities account control agreement or a commodities account control agreement, in form and substance reasonably satisfactory to the Administrative Agent, among the Loan Party or Loan Parties holding the deposit account or deposit accounts, the security account or securities accounts, or the commodity account or commodities accounts subject to such control agreement, the Administrative Agent and the depositary bank of such deposit account(s), the securities intermediary maintaining any securities account, or the commodity intermediary maintaining any commodity account.

 

Corporate Action” means, commencing with the Amendment No. 16 Effective Date, the refinancing in full of the Aggregate Revolving Credit Commitment in accordance with Section 6.39 in order to effectuate the occurrence of the Revolving Credit Facility Termination Date.

 

Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

 

14

 

 

Customary Permitted Liens” means, with respect to any Person, any of the following Liens:

 

(a) Liens with respect to the payment of taxes, assessments or governmental charges in each case that are not yet due or that are being contested in good faith by appropriate proceedings and with respect to which adequate reserves or other appropriate provisions are being maintained to the extent required by GAAP and, in the case of Mortgaged Property, there is no material risk of forfeiture of such property;

 

(b) Liens of landlords arising by statute or lease contracts entered into in the ordinary course, inchoate, statutory or construction liens and liens of suppliers, mechanics, carriers, materialmen, warehousemen, producers, operators or workmen and other liens imposed by law created in the ordinary course of business for amounts not yet due or that are being contested in good faith by appropriate proceedings and with respect to which adequate reserves or other appropriate provisions are being maintained to the extent required by GAAP;

 

(c) liens, pledges or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other types of social security benefits, taxes, assessments, statutory obligations or other similar charges or to secure the performance of bids, tenders, sales, leases, contracts (other than for the repayment of borrowed money) or in connection with surety, appeal, customs or performance bonds or other similar instruments;

 

(d) encumbrances arising by reason of zoning restrictions, easements, licenses, reservations, covenants, rights-of-way, utility easements, building restrictions and other similar encumbrances on the use of Real Property not materially detracting from the value of such Real Property and not materially interfering with the ordinary conduct of the business conducted at such Real Property;

 

(e) encumbrances arising under leases or subleases of Real Property that do not, individually or in the aggregate, materially detract from the value of such Real Property or materially interfere with the ordinary conduct of the business conducted at such Real Property;

 

(f) financing statements with respect to a lessor’s rights in and to personal property leased to such Person in the ordinary course of such Person’s business;

 

(g) liens, pledges or deposits relating to escrows established in connection with the purchase or sale of property otherwise permitted hereunder and the amounts secured thereby shall not exceed the aggregate consideration in connection with such purchase or sale (whether established for an adjustment in purchase price or liabilities, to secure indemnities, or otherwise);

 

(h) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by the Borrower or a Subsidiary, in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank with respect to cash management and operating account arrangements, including those involving pooled accounts and netting arrangements; provided that, unless such Liens are non-consensual and arise by operation of law, in no case shall any such Liens secure (either directly or indirectly) the repayment of any Indebtedness; and

 

15

 

 

(i) options, put and call arrangements, rights of first refusal and similar rights (i) relating to Investments in Subsidiaries, Joint Ventures and Consortiums or (ii) provided for in contracts or agreements entered into in the ordinary course of business.

 

Customer Concessions” has the meaning specified in Section 6.38.

 

Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Requirements of Law of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

 

Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

 

Default Rate” means (a) when used with respect to Obligations arising under any Loan Document other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate applicable to Base Rate Loans plus (iii) 2% per annum; providedhowever, that with respect to a Eurocurrency Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate applicable to Letter of Credit Fees plus 2% per annum.

 

16

 

 

Defaulting Lender” means, subject to Section 2.16(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within three Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within three Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, any L/C Issuer or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower, each L/C Issuer, the Swing Line Lender and each other Lender promptly following such determination.

 

Deferred Facility Fee” has the meaning specified in Section 2.09(b)(iv).

 

Deferred Facility Fee Decrease Event” means the occurrence of any of the following: (a) the Borrower and its Subsidiaries’ receipt of Net Cash Proceeds in excess of $50,000,000 from one or more Prepayment Events in connection with Asset Sales occurring after the Amendment No. 5 Effective Date, (b) after or simultaneously with the satisfaction of the condition set forth in the immediately preceding clause (a), the Borrower and its Subsidiaries’ receipt of additional Net Cash Proceeds in excess of $25,000,000 from one or more Prepayment Events in connection with Asset Sales or (c) each of (i) the completion and customer turnover of the Vølund Projects related to the counterparties listed on Exhibit A of Amendment No. 16 under the heading “Deferred Fee Event Projects” (other than with respect to the Vølund Project located at [***]), (ii) the Borrower’s receipt of the takeover certificate with respect to the Vølund Project located at [***] and (iii) the Borrower’s completion of the work contemplated with respect to the Vølund Project located at [***] in accordance with the Vølund Project Settlement with respect to [***] on May 31, 2019.

 

Deferred PBGC Payments” means pension payments deferred by the Borrower with the consent of the PBGC in an amount no greater than $25,000,000.

 

17

 

 

Deferred Ticking Fees” has the meaning specified in Section 2.09(b)(vi).

 

Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is, or whose government is, at the time of determination, the subject of any Sanction.

 

Disqualified Stock” means with respect to any Person, any Stock that, by its terms (or by the terms of any Security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is exchangeable for Indebtedness of such Person, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the Maturity Date.

 

Discharge of Second Priority Obligations” has the meaning specified in the Intercreditor Agreement.

 

Disregarded Entity” means any Person that is disregarded as an entity separate from its owner for U.S. federal income tax purposes.

 

Dollar” and “$” mean lawful money of the United States.

 

Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.

 

Domestic Subsidiary” means any Subsidiary that is organized under the laws of any political subdivision of the United States.

 

EBITDA” means, for any period,

 

(a) Consolidated Net Income for such period;

 

plus

 

(b) the sum of, in each case (other than in the case of clause (xii)) to the extent deducted in the calculation of (or, in the case of clause (vii), otherwise reducing) such Consolidated Net Income but without duplication,

 

(i) any provision for income taxes,

 

(ii) Interest Expense,

 

(iii) depreciation expense,

 

(iv) amortization of intangibles or financing or acquisition costs,

 

18

 

 

(v) any aggregate net loss from the sale, exchange or other disposition of business units by the Borrower or its Subsidiaries,

 

(vi) all other non-cash charges (including impairment of intangible assets and goodwill) and non-cash losses for such period, including non-cash employee compensation pursuant to any equity-based compensation plan (excluding any non-cash item to the extent it represents an accrual of, or reserve for, cash disbursements for any period ending prior to the Maturity Date);

 

(vii) (A) for any period that includes the Fiscal Quarter ended December 31, 2016, the actual costs, expenses, losses and/or reductions in Consolidated Net Income experienced by the Borrower and its Subsidiaries in such quarter in connection with the Volund Projects in an aggregate amount not to exceed $98,100,000 and, (B) for any period that includes the Fiscal Quarter ended June 30, 2017, the actual costs, expenses, losses and/or reductions in Consolidated Net Income experienced by the Borrower and its Subsidiaries in such quarter in connection with the Volund Projects in an aggregate amount not to exceed $115,200,000, (C) for any period that includes the Fiscal Quarter ended September 30, 2017, the actual costs, expenses, losses and/or reductions in Consolidated Net Income experienced by the Borrower and its Subsidiaries in such quarter in connection with the Vølund Projects in an aggregate amount not to exceed $30,100,000, (D) for any period that includes the Fiscal Quarter ended December 31, 2017, the actual costs, expenses, losses and/or reductions in Consolidated Net Income experienced by the Borrower and its Subsidiaries in such quarter in connection with the Vølund Projects in an aggregate amount not to exceed $38,700,000, (E) for any period that includes the Fiscal Quarter ended March 31, 2018, the actual costs, expenses, losses and/or reductions in Consolidated Net Income experienced by the Borrower and its Subsidiaries in such quarter in connection with the Vølund Projects in an aggregate amount not to exceed $51,100,000, (F) for any period that includes the Fiscal Quarter ended June 30, 2018, the actual costs, expenses, losses and/or reductions in Consolidated Net Income experienced by the Borrower and its Subsidiaries in such quarter in connection with the Vølund Projects in an aggregate amount not to exceed $72,800,000, (G) for any period that includes the Fiscal Quarter ended September 30, 2018, the actual costs, expenses, losses and/or reductions in Consolidated Net Income experienced by (i) the Borrower and its Subsidiaries in such quarter in connection with the Vølund Projects in an aggregate amount not to exceed $20,300,000 and (ii) SPIG S.p.A. and its Subsidiaries in such quarter in an aggregate amount not to exceed $5,000,000, and (H) for any period that includes the Fiscal Quarter ended December 31, 2018, the actual costs, expenses, losses and/or reductions in Consolidated Net Income experienced by (i) the Borrower and its Subsidiaries in such quarter in connection with the Vølund Projects in an aggregate amount not to exceed $19,100,000 and (ii) SPIG S.p.A. and its Subsidiaries in such quarter in an aggregate amount not to exceed $17,400,000;

 

19

 

 

(viii) commencing with the Fiscal Quarter ending September 30, 2017, realized and unrealized foreign exchange losses of the Borrower and its Subsidiaries resulting from the impact of foreign currency changes on the valuation of assets and liabilities;

 

(ix) fees and expenses incurred in connection with Amendment No. 3, but solely to the extent disclosed in writing to and approved by the Administrative Agent in its reasonable discretion;

 

(x) (x) with respect to the period commencing on July 1, 2017 through December 31, 2017, non-recurring charges incurred by the Borrower or its Subsidiaries in respect of business restructurings, provided that the aggregate amount added back to Consolidated Net Income pursuant to this clause (x) for any four consecutive Fiscal Quarter period shall not exceed $4,000,000, (y) with respect to the period commencing on January 1, 2018 through December 31, 2019, non-recurring charges incurred by the Borrower or its Subsidiaries in respect of business restructurings to the extent disclosed in writing to the Administrative Agent and in an amount not to exceed $26,300,000 and (z) with respect to the period commencing on January 1, 2020 through December 31, 2020, non-recurring charges incurred by the Borrower or its Subsidiaries in respect of business restructurings to the extent disclosed in writing to the Administrative Agent and in an amount not to exceed $5,000,000;

 

(xi) (w) fees and expenses paid in connection with or pursuant to Amendment No. 5, Amendment No. 6 and Amendment No. 8 to the extent disclosed in writing to the Administrative Agent and in an amount not to exceed $24,600,000, (x) fees and expenses of the Administrative Agent’s advisors, including FTI and Freshfields Bruckhaus Deringer US LLP, (y) any loss, charge, expense or other items that are payments of Obligations under the Second Lien Credit Agreement (as defined in the Second Lien Credit Agreement) and (z) all restructuring-related professional fees and expenses, including but not limited to fees and expenses paid in connection with or pursuant to the Limited Waiver to Credit Agreement, dated as of March 15, 2019, Amendment No. 15, the Limited Waiver to Credit Agreement, dated as of March 29, 2019, Amendment No. 16, the Rights Offering, Amendment No. 20 and other matters acceptable to the Administrative Agent to the extent disclosed in writing to the Administrative Agent, provided that the aggregate amount added back to Consolidated Net Income pursuant to this clause (z) for any four consecutive Fiscal Quarter period shall not exceed $28,900,000;

 

(xii)  the costs, fees and expenses incurred in connection with the Vølund Project Settlements in an amount not to exceed (x) for any period that includes the Fiscal Quarter ended December 31, 2018, $81,100,000 and (y) for any period that includes the Fiscal Quarter ended March 31, 2019, $6,500,000;

 

(xiii)  for any period that includes the Fiscal Quarter ended December 31, 2018, any (x) write-off of debt by SPIG S.p.A. or its Subsidiaries and (y) write-down of or impairment of accounts receivables and inventory by Diamond Power Machine (Hubei) Co. Inc. in an aggregate amount under this clause (xiii) not to exceed $14,700,000;

 

20

 

 

(xiv) on account of the expected loss of positive projected EBITDA from the assets of B&W PGG Luxembourg Finance S.à r.l. and its Subsidiaries sold pursuant to the Loibl Sale (as defined in that certain Consent, dated as of June 4, 2019) for any period that includes the Fiscal Quarter ending June 30, 2019, $326,429;

 

provided, that, to the extent that all or any portion of the income or gains of any Person is deducted pursuant to any of clauses (c)(iv) and (v) below for a given period, any amounts set forth in any of the preceding clauses (b)(i) through (b)(xiv) that are attributable to such Person shall not be included for purposes of this clause (b) for such period,

 

minus

 

(c) the sum of, in each case to the extent included in the calculation of such Consolidated Net Income but without duplication,

 

(i) any credit for income tax,

 

(ii) non-cash interest income,

 

(iii) any other non-cash gains or other items which have been added in determining Consolidated Net Income (other than any such gain or other item that has been deducted in determining EBITDA for a prior period),

 

(iv) the income of any Subsidiary or Joint Venture to the extent that the declaration or payment of dividends or similar distributions or transfers or loans by such Subsidiary or Joint Venture, as applicable, of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, statute, rule or governmental regulation applicable to such Subsidiary or Joint Venture, as applicable,

 

(v) the income of any Person (other than a Subsidiary) in which any other Person (other than the Borrower or a Wholly-Owned Subsidiary or any director holding qualifying shares in accordance with applicable law) has an interest, except to the extent of the amount of dividends or other distributions or transfers or loans actually paid to the Borrower or a Wholly-Owned Subsidiary by such Person during such period,

 

(vi) any aggregate net gains from the sale, exchange or other disposition of business units by the Borrower or any of its Subsidiaries out of the ordinary course of business,

 

(vii) commencing with the Fiscal Quarter ending September 30, 2017, realized and unrealized foreign exchange gains of the Borrower and its Subsidiaries resulting from the impact of foreign currency changes on the valuation of assets and liabilities,

 

(viii) commencing with the Fiscal Quarter ending June 30, 2018, any sums included in Consolidated Net Income to the extent such amounts were previously included for the Fiscal Quarter ended March 31, 2018 pursuant to clause (b)(xii) above; and

 

21

 

 

(ix) commencing with the Fiscal Quarter ending September 30, 2018, any income on account of any settlement of or payment in respect of any property or casualty insurance claim or professional liability insurance claims or any taking or condemnation proceeding relating to any asset of the Borrower or any Subsidiary.

 

For any period of measurement that includes any Permitted Acquisition or any sale, exchange or disposition of any Subsidiary or business unit of the Borrower or any Subsidiary, EBITDA (and the relevant elements thereof) shall be computed on a pro forma basis for each such transaction as if it occurred on the first day of the period of measurement thereof, so long as the Borrower provides to the Administrative Agent reconciliations and other detailed information relating to adjustments to the relevant financial statements (including copies of financial statements of the acquired Person or assets in any Permitted Acquisition) used in computing EBITDA (and the relevant elements thereof) sufficient to demonstrate such pro forma calculations in reasonable detail. Notwithstanding the foregoing, no such pro forma adjustment will be required on account of income (i) in an amount not to exceed $3,000,000 in connection with the Borrower’s disposition of its indirect interest in the Stock or Stock Equivalents of Babcock & Wilcox Beijing Co., Ltd., or (ii) in connection with (x) the Orion Sale (as defined in that certain Consent and Amendment No. 7, dated as of June 1, 2018), (y) any Asset Sale of Project Burn or (z) the Loibl Sale (as defined in that certain Consent, dated as of June 4, 2019).

 

EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

 

EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 10.06(b)(iii)).

 

Eligible Line of Business” means the businesses and activities engaged in by the Borrower and its Subsidiaries on the Closing Date, any other businesses or activities reasonably related or incidental thereto and any other businesses that, when taken together with the existing businesses of the Borrower and its Subsidiaries, are immaterial with respect to the assets and liabilities of the Borrower and its Subsidiaries, taken as a whole.

 

22

 

 

Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA which is sponsored, maintained or contributed to by, or required to be contributed to by, the Borrower, any of its Subsidiaries, any Guarantor or any of their respective ERISA Affiliates or was sponsored, maintained or contributed to by, or required to be contributed to by, the Borrower, any of its Subsidiaries, any Guarantor or any of their respective ERISA Affiliates with respect to liabilities for which the Borrower, any such Subsidiary, any such Guarantor or any of their respective ERISA Affiliates could be liable under the Code or ERISA.

 

Environmental Laws” means all applicable Requirements of Law now or hereafter in effect and as amended or supplemented from time to time, relating to pollution or the regulation and protection of human health, safety, the environment or natural resources, including the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. § 9601 et seq.); the Hazardous Material Transportation Act, as amended (49 U.S.C. § 1801 et seq.); the Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. § 136 et seq.); the Resource Conservation and Recovery Act, as amended (42 U.S.C. § 6901 et seq.); the Toxic Substance Control Act, as amended (15 U.S.C. § 2601 et seq.); the Clean Air Act, as amended (42 U.S.C. § 7401 et seq.); the Federal Water Pollution Control Act, as amended (33 U.S.C. § 1251 et seq.); the Occupational Safety and Health Act, as amended (29 U.S.C. § 651 et seq.); the Safe Drinking Water Act, as amended (42 U.S.C. § 300f et seq.); and each of their state and local counterparts or equivalents.

 

Environmental Liabilities and Costs” means, with respect to any Person, all liabilities, obligations, responsibilities, Remedial Actions, losses, damages, punitive damages, consequential damages, treble damages, costs and expenses (including all fees, disbursements and expenses of counsel, experts and consultants and costs of investigation and feasibility studies), fines, penalties, sanctions and interest incurred as a result of any claim or demand by any other Person, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute and arising under any Environmental Law, Permit, order or agreement with any Governmental Authority or other Person, in each case relating to and resulting from the past, present or future operations of, or ownership of property by, such Person or any of its Subsidiaries.

 

Environmental Lien” means any Lien in favor of any Governmental Authority pursuant to any Environmental Law.

 

Equity Backstop Commitment Letter” means each, as amended and restated as of the Amendment No. 6 Effective Date, (a) that certain letter regarding the equity financing commitment, between Vintage Capital Management, LLC and B. Riley Financial, Inc. and (b) that certain letter regarding the equity financing commitment, between the Borrower and Vintage Capital Management, LLC.

 

ERISA” means the Employee Retirement Income Security Act of 1974.

 

23

 

 

ERISA Affiliate” means any trade or business (whether or not incorporated) under common control or treated as a single employer with the Borrower, any of its Subsidiaries or any Guarantor within the meaning of Section 414(b), (c), (m) or (o) of the Code. Any former ERISA Affiliate of the Borrower, any of its Subsidiaries or any Guarantor shall continue to be considered an ERISA Affiliate of the Borrower, such Subsidiary or such Guarantor within the meaning of this definition solely with respect to the period such entity was an ERISA Affiliate of the Borrower, such Subsidiary or such Guarantor and with respect to liabilities arising after such period for which the Borrower, such Subsidiary or such Guarantor could be liable under the Code or ERISA.

 

ERISA Event” means (a) a reportable event described in Section 4043(b) or 4043(c) of ERISA with respect to a Title IV Plan for which notice has not been waived, (b) the withdrawal of the Borrower, any of its Subsidiaries, any Guarantor or any ERISA Affiliate from a Title IV Plan subject to Section 4063 or Section 4064 of ERISA during a plan year in which any such entity was a “substantial employer” (as defined in Section 4001(a)(2) of ERISA) or the termination of any such Title IV Plan resulting, in either case, in a material liability to any such entity, (c) the “complete or partial withdrawal” (within the meaning of Sections 4203 and 4205 of ERISA) of the Borrower, any of its Subsidiaries, any Guarantor or any ERISA Affiliate from any Multiemployer Plan where the Withdrawal Liability is reasonably expected to exceed $1,000,000 (individually or in the aggregate), (d) notice of reorganization, insolvency, intent to terminate or termination of a Multiemployer Plan is received by the Borrower, any of its Subsidiaries, any Guarantor or any ERISA Affiliate, (e) the filing of a notice of intent to terminate a Title IV Plan under Section 4041(c) of ERISA or the treatment of a plan amendment as a termination under Section 4041(e) of ERISA, where such termination constitutes a “distress termination” under Section 4041(c) of ERISA, (f) the institution of proceedings to terminate a Title IV Plan by the PBGC, (g) the failure to make any required contribution to a Title IV Plan or Multiemployer Plan or to meet the minimum funding standard of Sections 430 and 431 of the Code (in either case, whether or not waived), (h) the imposition of a Lien with respect to any employee pension plan under the provisions of the Code that relate to such plans or ERISA on the Borrower, any of its Subsidiaries, any Guarantor or any ERISA Affiliate, (i) any other event or condition that might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan or the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, (j) any Multiemployer Plan entering endangered status for purposes of Section 305 of ERISA, (k) the imposition of liability on the Borrower, any of its Subsidiaries, any Guarantor or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA, (l) the occurrence of an act or omission which would reasonably be expected to give rise to the imposition on the Borrower, any of its Subsidiaries, any Guarantor or any of their respective ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43 of the Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any “employee pension plan” (within the meaning of Section 3(2) of ERISA), (m) receipt from the IRS of notice of the failure of any employee pension plan that is intended to be qualified under Section 401(a) of the Code so to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any such employee pension plan to qualify for exemption from taxation under Section 501(a) of the Code or (n) the occurrence of any non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code involving the Borrower, any of its Subsidiaries, any Guarantor or any of their respective ERISA Affiliates. Notwithstanding the foregoing or anything in this Agreement to the contrary, an ‘ERISA Event’ shall not include (a) an application for waiver of the minimum funding standard under Section 412 of the Code for a Title IV Plan for the 2018 plan year or the 2019 plan year or (b) the failure to make any required contribution to a Title IV Plan or to meet the minimum funding standard of Section 430 of the Code with respect to a Title IV Plan for the 2018 plan year or the 2019 plan year.

 

24

 

 

EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

 

Eurocurrency Rate” means:

 

(a) for any Interest Period with respect to a Eurocurrency Rate Loan, the rate per annum equal to (i) the London Interbank Offered Rate (“LIBOR”), as published by Bloomberg (or other commercially available source providing quotations of LIBOR as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two London Banking Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period or (ii) if such rate is not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in Same Day Funds in the approximate amount of the Eurocurrency Rate Loan being made, continued or converted and with a term equivalent to such Interest Period would be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two London Banking Days prior to the commencement of such Interest Period; and

 

(b) for any interest calculation of the Eurocurrency Rate with respect to a Base Rate Loan on any date, the rate per annum equal to (i) LIBOR, at approximately 11:00 a.m., London time determined two London Banking Days prior to such date for Dollar deposits being delivered in the London interbank market for a term of one month commencing that day or (ii) if such published rate is not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the date of determination in Same Day Funds in the approximate amount of the Base Rate Loan being made or maintained and with a term equal to one month would be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market at their request at the date and time of determination.

 

25

 

 

Notwithstanding the foregoing, if the Eurocurrency Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

 

Eurocurrency Rate Loan” means a Term Loan or Revolving Credit Loan, as the context requires, that bears interest at a rate based on clause (a) of the definition of “Eurocurrency Rate.”

 

Event of Default” has the meaning specified in Section 8.01.

 

Excluded Deposit Account” means (a) any deposit account that is used solely for payment of taxes, payroll, bonuses, other compensation and related expenses, in each case, for employees or former employees, (b) fiduciary or trust accounts, (c) zero-balance accounts, so long as the balance in such account is zero at the end of each Business Day and (d) any other deposit account with an average daily balance on deposit not exceeding $100,000 individually or $500,000 in the aggregate for all such accounts excluded pursuant to this clause (d).

 

Excluded Domestic Subsidiary” means any direct or indirect Subsidiary of a Loan Party that is directly or indirectly owned (in whole or in part) by any Foreign Subsidiary of a Loan Party.

 

Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to any “keepwell, support or other agreement” for the benefit of such Guarantor and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Guarantor, or a grant by such Guarantor of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes excluded in accordance with the first sentence of this definition.

 

Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender or L/C Issuer, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender or L/C Issuer (as applicable) with respect to an applicable interest in a Loan or Commitment or otherwise under a Loan Document pursuant to a law in effect on the date on which (i) such Lender or L/C Issuer (as applicable) acquires such interest in the Loan or Commitment or becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 10.13) or (ii) such Lender or L/C Issuer (as applicable) changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(b), amounts with respect to such Taxes were payable either to such Lender’s or L/C Issuer’s (as applicable) assignor immediately before such Lender or L/C Issuer (as applicable) became a party hereto or to such Lender or L/C Issuer (as applicable) immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(f) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.

 

26

 

 

Execution Date” means the first date on which all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01.

 

Existing Credit Agreement” means that certain Second Amended and Restated Credit Agreement dated as of June 24, 2014 by and among BWC, as the borrower, Bank of America, as the administrative agent, and the lenders from time to time party thereto.

 

Extended Letter of Credit” has the meaning specified in Section 2.03(a)(ii).

 

Extended Letter of Credit Issuer” shall mean each L/C Issuer that is party to Amendment No. 16 in its capacity as L/C Issuer.

 

Facility” means the Term Loan Facility or the Revolving Credit Facility, as the context may require.

 

Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party; provided that, for any determination of Fair Market Value in connection with an Asset Sale to be made pursuant to Section 7.04(i) in which the estimated fair market value of the properties disposed of in such Asset Sale exceeds $10,000,000, the Borrower shall provide evidence reasonably satisfactory to the Administrative Agent with respect to the calculation of such Fair Market Value.

 

FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.

 

FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any intergovernmental agreements that implement or modify the foregoing (together with any Requirement of Law implementing such agreements).

 

27

 

 

Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the immediately preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.

 

Fee Letters” means each of (a) the fee letter dated as of April 7, 2015 by and among the Borrower, BWPGG, the Arrangers, Bank of America, BNP Paribas, JPMorgan Chase Bank, N.A., Wells Fargo Bank, National Association and Crédit Agricole Corporate and Investment Bank, (b) the fee letter dated as of April 7, 2015by and among the Borrower, BWPGG, Bank of America and MLPFS, (c) the fee letter dated as of April 7, 2015 by and among the Borrower, BWPGG, BNP Paribas and BNP Paribas Securities Corp., (d) the fee letter dated as of April 7, 2015 by and among the Borrower, BWPGG, JPMorgan Chase Bank, N.A. and J.P. Morgan Securities LLC, (e) the fee letter dated as of April 7, 2015 by and among the Borrower, BWPGG, Wells Fargo Bank, National Association and Wells Fargo Securities, LLC and (f) the fee letter dated as of April 7, 2015 by and among the Borrower, BWPGG and Crédit Agricole Corporate and Investment Bank.

 

Financial Covenant Debt” of any Person means, without duplication, Indebtedness of the type specified in clauses (a), (b), (c), (d), (e), (f), (g) and (h) of the definition of “Indebtedness,” provided that Indebtedness extended under the Term Loan Facility of the type set forth in clause (a) shall be excluded from the calculation of Financial Covenant Debt. For the avoidance of doubt, the term “Financial Covenant Debt” shall not include (a) reimbursement or other obligations with respect to unmatured or undrawn, as applicable, Performance Guarantees and (b) Indebtedness of the Borrower or any Subsidiary of the Borrower that is owed to the Borrower or any Subsidiary of the Borrower.

 

Financial Letter of Credit” means any standby Letter of Credit that is not a Performance Letter of Credit.

 

First-Tier Foreign Subsidiary” mean a Foreign Subsidiary all or any portion of whose Stock is owned directly by the Borrower or a Domestic Subsidiary that is a Guarantor.

 

Fiscal Quarter” means the fiscal quarter of the Borrower ending on March 31, June 30, September 30 or December 31 of the applicable calendar year, as applicable.

 

Fiscal Year” means the fiscal year of the Borrower, which is the same as the calendar year.

 

28

 

 

Fixed Rate” means a fixed rate per annum equal to 15.50%; provided that, commencing on the Business Day immediately after the delivery of a Fixed Rate Certificate to the Administrative Agent, the Fixed Rate shall be reduced to 12.00% (provided that if the Administrative Agent receives a Fixed Rate Certificate after the date such Fixed Rate Modification Event occurred as described in such certificate, such certificate shall be deemed to have been delivered on the later of (A) the date such Fixed Rate Modification Event occurred as set forth in such Fixed Rate Certificate and (B) the most recent Interest Payment Date with respect to the Fixed Rate Loans); provided further that if the Administrative Agent has not received a Fixed Rate Certificate on or before the Additional Term Loan Prepayment Transaction Deadline, the Fixed Rate shall be increased to 18.00% commencing on the Business Day immediately after the Additional Term Loan Prepayment Transaction Deadline.

 

Fixed Rate Certificate” means either a certificate of (a) a Responsible Officer or (b) any Term Loan Lender certifying that the Fixed Rate Modification Event has occurred.

 

Fixed Rate Loans” means those Term Loans that bear interest at the Fixed Rate. All Fixed Rate Loans shall be denominated in Dollars.

 

Fixed Rate Modification Event” means the consummation of a Qualified Rights Offering prior to the Additional Term Loan Prepayment Transaction Deadline.

 

Flood Requirement Standards” means, with respect to any parcel of owned Real Property to be subject to a Mortgage, (a) the delivery to the Administrative Agent of a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each such parcel of owned real property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the applicable Loan Party relating to such parcel of owned Real Property), (b) maintenance, if available, of fully paid flood hazard insurance on all such owned Real Property that is located in a special flood hazard area from such providers and on such terms and in such amounts as required by Flood Disaster Protection Act, The National Flood Insurance Reform Act of 1994 or as otherwise reasonably required by the Administrative Agent and (c) delivery to the Administrative Agent of evidence of such compliance in form and substance reasonably acceptable to the Administrative Agent.

 

Foreign Lender” means a Lender that is not a U.S. Person.

 

Foreign Security Provider” means the Foreign Subsidiaries identified by the Administrative Agent from time to time in consultation with the Borrower, which Foreign Subsidiaries may be located in the following jurisdictions: (i) Canada, (ii) Germany, (iii) the United Kingdom, (iv) Sweden, (v) Mexico and (vi) any other jurisdiction with the consent of the Borrower, which consent shall not be unreasonably withheld or delayed (provided that SPIG S.p.A. and its Subsidiaries, Babcock & Wilcox Vølund, A/S and its Subsidiaries, Babcock & Wilcox Loibl GmbH and Diamond Power Specialty Limited shall not be required to become Foreign Security Providers).

 

29

 

 

Foreign Subsidiary” means any Subsidiary that is organized under the laws of a jurisdiction other than the United States, a State thereof or the District of Columbia.

 

Foreign Subsidiary Reorganization” means the transfer (whether by Asset Sale, dividend, distribution, contribution, merger or otherwise), in a series of transactions, of the Stock and Stock Equivalents of certain Foreign Subsidiaries and Investments owned, directly or indirectly, by the Borrower among the Borrower and its Subsidiaries; provided that:

 

(a) both before and after giving effect thereto, no Default shall have occurred and be continuing;

 

(b) all of the Stock and Stock Equivalents of such Foreign Subsidiaries and Investments owned, directly or indirectly, by the Borrower on the Closing Date shall be owned, directly or indirectly, by the Borrower upon the completion thereof (other than any such Stock, Stock Equivalents or Investments that are retired or replaced);

 

(c) any Stock, Stock Equivalents or Investments issued or made in connection therewith, to the extent replacing Stock, Stock Equivalents or Investments previously owned, directly or indirectly, by the Borrower on the Closing Date shall be owned, directly or indirectly, by the Borrower upon the completion thereof;

 

(d) after giving effect thereto, the Borrower shall be in compliance with Section 6.22 (including, without limitation, by pledging any Pledged Interests issued by any First Tier Foreign Subsidiary owned by any Loan Party)

 

(e) in connection therewith, no assets owned by any Loan Party that is a party to the Collateral Agreement, other than Stock and Stock Equivalents of Foreign Subsidiaries, shall be transferred to any Person that is not a Loan Party that is a party to the Collateral Agreement; provided that the foregoing shall not prohibit Investments otherwise permitted by a provision of Section 7.03 other than Section 7.03(k).

 

Form 10” means the Form 10 (together with any exhibits thereto) filed with the SEC relating to the Spinoff.

 

Form 10 Transactions” means the individual transactions entered into in connection with the Spinoff on substantially the same terms as set forth in the Form 10 (with non-material changes or other additional non-material transactions, steps or terms that are not adverse to any material interest of the Lenders being considered to be “on substantially the same terms”); provided that any amendments, additions, or other modifications to the Form 10 are made in accordance with Section 7.10.

 

FRB” means the Board of Governors of the Federal Reserve System of the United States.

 

30

 

 

Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to each L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations with respect to Letters of Credit issued by such L/C Issuer, other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

 

FTI” means FTI Consulting, Inc.

 

Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

 

Funding Ratio” means that for each Dollar of Revolving Credit Loans made to the Borrower after the occurrence of the Initial Tranche A Term Loan Funding, a Dollar amount of Tranche A-1 Term Loans equal to (x) the amount of such Revolving Loans, plus (y) the amount of OID to be paid by the Borrower in connection with such Term Loans on the date of the applicable Term Loan Borrowing.

 

GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.

 

Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

 

Guarantors” means, collectively, each Wholly-Owned Domestic Subsidiary of the Borrower listed on Schedule 1.01(b) hereto, and each other Person that is or becomes a party to the Guaranty (including by (i) execution of a Joinder Agreement pursuant to Section 6.22 or (ii) otherwise pursuant to this Agreement), but expressly excludes all Captive Insurance Subsidiaries.

 

Guaranty” means the Guaranty Agreement dated as of the Closing Date made by the Borrower (solely with respect to Obligations in the nature of Secured Cash Management Agreements and Secured Hedge Agreements) and by the Guarantors in favor of the Administrative Agent for the benefit of the Secured Parties, substantially in the form of Exhibit F, and any Joinder Agreement with respect thereto.

 

31

 

 

Guaranty Obligation” means, as applied to any Person, without duplication, any direct or indirect liability, contingent or otherwise, of such Person with respect to any Indebtedness of another Person, if the purpose of such Person in incurring such liability is to provide assurance to the obligee of such Indebtedness that such Indebtedness will be paid or discharged, or that any agreement relating thereto will be complied with, or that any holder of such Indebtedness will be protected (in whole or in part) against loss in respect thereof, including (a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of Indebtedness of another Person and (b) any liability of such Person for Indebtedness of another Person through any agreement (contingent or otherwise) (i) to purchase, repurchase or otherwise acquire such Indebtedness or any security therefor, or to provide funds for the payment or discharge of such Indebtedness (whether in the form of a loan, advance, stock purchase, capital contribution or otherwise), (ii) to maintain the solvency or any balance sheet item, level of income or financial condition of another Person, (iii) to make take-or-pay or similar payments, regardless of non-performance by any other party or parties to an agreement, (iv) to purchase, sell or lease (as lessor or lessee) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Indebtedness or to assure the holder of such Indebtedness against loss or (v) to supply funds to, or in any other manner invest in, such other Person (including to pay for property or services irrespective of whether such property is received or such services are rendered), if (and only if) in the case of any agreement described under clause (b)(i), (ii), (iii), (iv) or (v) above the primary purpose or intent thereof is to provide assurance to the obligee of Indebtedness of any other Person that such Indebtedness will be paid or discharged, or that any agreement relating thereto will be complied with, or that any holder of such Indebtedness will be protected (in whole or in part) against loss in respect thereof. The amount of any Guaranty Obligation shall be equal to the amount of the Indebtedness so guaranteed or otherwise supported or, if such amount is not stated or otherwise determinable, the maximum reasonable anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. For the avoidance of doubt, the term “Guaranty Obligation” shall not include reimbursement or other obligations with respect to unmatured or undrawn, as applicable, Performance Guarantees.

 

Hedge Bank” means (a) any Person that, at the time it enters into a Secured Swap Contract, is a Revolving Credit Lender or an Affiliate of a Revolving Credit Lender, in its capacity as a party to such Secured Swap Contract, and (b) any Person that is a party to a Secured Swap Contract at the time it or its relevant Affiliate becomes a Revolving Credit Lender (whether on the Closing Date or at a later date pursuant to Section 10.06), in its capacity as a party to such Secured Swap Contract.

 

32

 

 

Immaterial Subsidiary” means any Subsidiary of the Borrower that, together with its Subsidiaries, (a) contributed less than $1,000,000 to the EBITDA of the Borrower and its Subsidiaries during the most recently-ended four-quarter period of the Borrower (taken as a single period) and (b) as of any date of determination has assets with an aggregate net book value of $1,000,000 or less.

 

Increase Effective Date” has the meaning specified in Section 2.14(c).

 

Incremental Tranche A Term Loan Funding” means, after the occurrence of the Initial Tranche A Term Loan Funding, the Borrower’s receipt of Tranche A-1 Term Loan proceeds of $20,000,000 (which may be made in a single Borrowing or multiple Borrowings) following payment of any OID in connection with such funding on the date of the relevant Borrowing.

 

Indebtedness” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person evidenced by promissory notes, bonds, debentures or similar instruments, (c) all matured reimbursement obligations with respect to letters of credit, bankers’ acceptances, surety bonds, performance bonds, bank guarantees, and other similar obligations, (d) all other obligations with respect to letters of credit, bankers’ acceptances, surety bonds, performance bonds, bank guarantees and other similar obligations, whether or not matured, other than unmatured or undrawn, as applicable, obligations with respect to Performance Guarantees, (e) all indebtedness for the deferred purchase price of property or services, other than trade payables incurred in the ordinary course of business that are not overdue by more than ninety days or are being disputed in good faith, (f) all indebtedness of such Person created or arising under any conditional sale or other title retention agreement (other than operating leases) with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (g) all Capital Lease Obligations of such Person, (h) all Guaranty Obligations of such Person, (i) all obligations of such Person to purchase, redeem, retire, defease or otherwise acquire for value any Stock or Stock Equivalents of such Person, valued, in the case of redeemable preferred stock, at the greater of its voluntary liquidation preference and its involuntary liquidation preference plus accrued and unpaid dividends, (j) net payments that such Person would have to make in the event of an early termination as determined on the date Indebtedness of such Person is being determined in respect of Swap Contracts of such Person and (k) all Indebtedness of the type referred to above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and general intangibles) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness, but limited to the value of the property owned by such Person securing such Indebtedness. For the avoidance of doubt, the term “Indebtedness” shall not include reimbursement or other obligations with respect to unmatured or undrawn, as applicable, Performance Guarantees.

 

33

 

 

Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

 

Indemnitees” has the meaning specified in Section 10.04(b).

 

Information” has the meaning specified in Section 10.07.

 

Information Memorandum” means the Confidential Information Memorandum, dated June 2014, in respect of the credit facilities provided under this Agreement.

 

Initial Funding Term Loan Lender Expenses” has the meaning given to such term in the definition of “Term Loan Facility.”

 

Initial Tranche A Term Loan Funding” means the Borrower’s receipt of Tranche A-1 Term Loan proceeds of $10,000,000 following payment of any Amendment No. 9 Closing Fee, Initial Funding Term Loan Lender Expenses and OID in connection with such funding.

 

Intangible Assets” means assets that are considered to be intangible assets under GAAP, including customer lists, goodwill, computer software, copyrights, trade names, trademarks, patents, franchises and licenses.

 

Intellectual Property Security Agreement” has the meaning given to such term in the Collateral Agreement.

 

Intercompany Subordinated Debt Payment” means any payment or prepayment, whether required or optional, of principal, interest or other charges on or with respect to any Subordinated Debt of the Borrower or any Subsidiary of the Borrower, so long as (a) such Subordinated Debt is owed to the Borrower or a Subsidiary of the Borrower and (b) no Event of Default under Sections 8.01(a)(b) or (f) shall have occurred and be continuing.

 

Intercreditor Agreement” means the Subordination and Intercreditor Agreement, dated as of the Amendment No. 3 Effective Date (as amended, supplemented or otherwise modified in accordance with the terms thereof), between the Administrative Agent, as first priority representative (and its permitted successor and assigns), and Lightship Capital LLC, as second priority representative (and its permitted successor and assigns), in form and substance satisfactory to the Administrative Agent and the Required Lenders.

 

Interest Coverage Ratio” means, with respect to the Borrower and its Subsidiaries as of any day, the ratio of (a) EBITDA for the Borrower and its Subsidiaries for the last four full Fiscal Quarters ending on or prior to such day for which the financial statements and certificates required by Section 6.01(a) or 6.01(b) have been delivered to (b) the Cash Interest Expense of the Borrower and its Subsidiaries for the last four full Fiscal Quarters ending on or prior to such day for which the financial statements and certificates required by Section 6.01(a) or 6.01(b) have been delivered.

 

34

 

 

Interest Expense” means, for any Person for any period, total interest expense of such Person and its Subsidiaries for such period, as determined on a consolidated basis in conformity with GAAP and including, in any event (without duplication for any period or any amount included in any prior period), (a) net costs under Interest Rate Contracts for such period, (b) any commitment fee (including, in the case of the Borrower or any of its Subsidiaries, the commitment fees hereunder) accrued, accreted or paid by such Person during such period, (c) any fees and other obligations (other than reimbursement obligations) with respect to letters of credit (including, in respect of the Borrower or any of its Subsidiaries, the Letter of Credit Fees) and bankers’ acceptances (whether or not matured) accrued, accreted or paid by such Person for such period, (d) the fronting fee with respect to each Letter of Credit and (e) any facility fee (including, in the case of the Borrower or any of its Subsidiaries, the facility fees hereunder but excluding any Deferred Facility Fees or Deferred Ticking Fees) accrued, accreted or paid by such Person during such period. For purposes of the foregoing, interest expense shall (i) be determined after giving effect to any net payments made or received by the Borrower or any Subsidiary with respect to interest rate Swap Contracts, (ii) exclude interest expense accrued, accreted or paid by the Borrower or any Subsidiary of the Borrower to the Borrower or any Subsidiary of the Borrower and (iii) exclude credits to interest expense resulting from capitalization of interest related to amounts that would be reflected as additions to property, plant or equipment on a consolidated balance sheet of the Borrower and its Subsidiaries prepared in conformity with GAAP. Notwithstanding the foregoing, “Interest Expense” shall not include (1) any interest expense related to the ARPA litigation, as described in the Borrower’s Form 10-Q for the Fiscal Quarter ended June 30, 2017 or (2) any loss, charge, expense, prepayment premium or other items that payments of Obligations under the Second Lien Credit Agreement (as defined in the Second Lien Credit Agreement).

 

Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan or a Fixed Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; providedhowever, that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates (provided that the Interest Payment Date with respect to any accrued interest outstanding as of the Amendment No. 16 Effective Date with respect to Term Loans shall be June 28, 2019); and (b) as to any Base Rate Loan (including a Swing Line Loan) or any Fixed Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made (with Swing Line Loans being deemed made under the Revolving Credit Facility for purposes of this definition).

 

35

 

 

Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one, two, three or six months thereafter (in each case, subject to availability), as selected by the Borrower in its Committed Loan Notice or such other period that is twelve months or less requested by the Borrower and consented to by all the Lenders under the applicable Facility; provided that:

 

(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the immediately preceding Business Day;

 

(b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

 

(c) no Interest Period shall extend beyond the Maturity Date.

 

Interest Rate Contracts” means all interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and interest rate insurance.

 

Investment” means, as to any Person, (a) any purchase or similar acquisition by such Person of (i) any Security issued by, (ii) a beneficial interest in any Security issued by, or (iii) any other equity ownership interest in, any other Person, (b) any purchase by such Person of all or substantially all of the assets of a business conducted by any other Person, or all or substantially all of the assets constituting what is known to the Borrower to be the business of a division, branch or other unit operation of any other Person, (c) any loan, advance (other than deposits with financial institutions available for withdrawal on demand, prepaid expenses, accounts receivable and similar items made or incurred in the ordinary course of business) or capital contribution by such Person to any other Person, including all Indebtedness of any other Person to such Person arising from a sale of property by such Person other than in the ordinary course of its business and (d) any Guaranty Obligation incurred by such Person in respect of Indebtedness of any other Person. For the avoidance of doubt, the term “Investment” shall not include reimbursement or other obligations with respect to unmatured or undrawn, as applicable, Performance Guarantees.

 

Inventory” has the meaning specified in the Collateral Agreement.

 

IRS” means the United States Internal Revenue Service.

 

ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).

 

36

 

 

Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and the Borrower (or any other Permitted L/C Party) or in favor of the L/C Issuer and relating to such Letter of Credit.

 

Joinder Agreement” means a joinder agreement, in form and substance satisfactory to the Administrative Agent, with respect to the Guaranty or any Security Instrument.

 

Joint Venture” means any Person (a) in which the Borrower, directly or indirectly, owns any Stock and Stock Equivalents of such Person and (b) that is not a Subsidiary of the Borrower, provided that (i) the Administrative Agent, on behalf of the Secured Parties, has a valid, perfected, first priority security interest in the Stock and Stock Equivalents in such joint venture owned directly by any Loan Party except where (x) the Constituent Documents of such joint venture prohibit such a security interest to be granted to the Administrative Agent or (y) such joint venture has incurred Non-Recourse Indebtedness the terms of which either (A) require security interests in such Stock and Stock Equivalents to be granted to secure such Non-Recourse Indebtedness or (B) prohibit such a security interest to be granted to the Administrative Agent, and (ii) no Loan Party shall, whether pursuant to the Constituent Documents of such joint venture or otherwise, be under any Contractual Obligation to make Investments or incur Guaranty Obligations after the Closing Date, or, if later, at the time of, or at any time after, the initial formation of such joint venture, that would be in violation of any provision of this Agreement.

 

Landlord Lien Waiver” means a lien waiver signed by a landlord in such form as is reasonably satisfactory to the Administrative Agent.

 

L/C Advance” means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage. All L/C Advances shall be denominated in Dollars.

 

L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing. All L/C Borrowings shall be denominated in Dollars.

 

L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.

 

L/C Issuer” means Bank of America, each other Lender that is listed on the signature pages hereto as an “L/C Issuer” and any other Lender that becomes an L/C Issuer in accordance with Section 2.03(l) hereof, each in its respective capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder (whether pursuant to Section 2.03(l)2.03(m)9.0610.06 or otherwise), but excluding any Lender that resigns or is removed as an L/C Issuer pursuant to the terms hereof (except to the extent such Person has continuing rights and/or obligations with respect to Letters of Credit after such resignation or removal). References to the L/C Issuer herein shall, as the context may indicate (including with respect to any particular Letter of Credit, L/C Credit Extension, L/C Borrowing or L/C Obligations), mean the applicable L/C Issuer, each L/C Issuer, any L/C Issuer, or all L/C Issuers.

 

37

 

 

L/C Issuer Sublimit” means with respect to each L/C Issuer, such amount as may be separately agreed between such L/C Issuer and the Borrower from time to time (with specific notice of such amount, and any change thereto, with respect to each L/C Issuer being promptly communicated to the Administrative Agent), provided that the L/C Issuer Sublimit with respect to any Person that ceases to be an L/C Issuer for any reason pursuant to the terms hereof shall be $0 (subject to the Letters of Credit of such Person remaining outstanding in accordance with the provisions hereof).

 

L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings; provided that, for purposes of calculating outstanding L/C Obligations with respect to outstanding Extended Letters of Credit, 105% of the aggregate amount available to be drawn shall be included and (y) any Extended Letters of Credit treated as drawn under Section 6.26 shall be treated as undrawn. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.08. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn. The L/C Obligations of (a) any Lender at any time shall be its Applicable Percentage of the total L/C Obligations at such time, and (b) any particular L/C Issuer at any time shall mean the L/C Obligations allocable to Letters of Credit issued by such L/C Issuer.

 

Lender” has the meaning specified in the introductory paragraphs hereto and, unless the context requires otherwise, includes the Swing Line Lender.

 

Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent, which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office.

 

Letter of Credit” means any letter of credit issued hereunder providing for the payment of cash upon the honoring of a presentation thereunder, and includes all letters of credit issued under the Existing Credit Agreement that are outstanding on the Closing Date and issued for the account of a Permitted L/C Party, which shall in each case be deemed to have been issued hereunder. A Letter of Credit may be a commercial letter of credit or a standby letter of credit, and a standby Letter of Credit may be a Performance Letter of Credit or a Financial Letter of Credit.

 

38

 

 

Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.

 

Letter of Credit Expiration Date” means the day that is 30 days prior to the Revolving Credit Facility Maturity Date (or, if such day is not a Business Day, the immediately preceding Business Day).

 

Letter of Credit Fee” has the meaning specified in Section 2.03(h).

 

Lien” means any mortgage, deed of trust, pledge, hypothecation, collateral assignment, charge, deposit arrangement, encumbrance, lien (statutory or other), security interest or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever intended to assure payment of any Indebtedness or the performance of any other obligation, including any conditional sale or other title retention agreement, the interest of a lessor under a Capital Lease and any financing lease having substantially the same economic effect as any of the foregoing, and the filing of any effective financing statement under the UCC or comparable law of any jurisdiction naming the owner of the asset to which such Lien relates as debtor.

 

Liquidity” means at any time the sum of (a) unrestricted cash and Cash Equivalents of the Borrower and the other Loan Parties, subject to a Control Agreement in favor of the Administrative Agent (excluding any Cash Collateral or proceeds in the Recovery Event Proceeds Account), provided that such cash shall not be required to be subject to a Control Agreement until 30 days after the Amendment No. 3 Effective Date, (b) unrestricted cash and Cash Equivalents of the Non-Loan Parties in an amount not to exceed $50,000,000 and (c) (i) after the Amendment No. 3 Effective Date and during the Relief Period, the lesser of (x) (A) commencing on the Amendment No. 16 Effective Date through September 30, 2019, $210,000,000, (B) from October 1, 2019 through January 24, 2020, $205,000,000 or (C) thereafter, $190,000,000,$205,000,000, less the aggregate outstanding principal amount of Revolving Credit Loans and (y) the Revolving Credit Facility, less the Total Revolving Outstandings (other than, after the consummation of the sale of Selected Assets in accordance with the Orion Plan, the aggregate amount available to be drawn under all outstanding Letters of Credit originally issued solely on account of the operations of MEGTEC, Universal and their respective Subsidiaries to the extent that such obligations are Cash Collateralized or backstopped by a letter of credit (other than a Letter of Credit issued hereunder), in form and substance reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer), and, (ii) other than during the Relief Period, the Revolving Credit Facility, less the Total Revolving Outstandings (other than, after the consummation of the sale of Selected Assets in accordance with the Orion Plan, the aggregate amount available to be drawn under all outstanding Letters of Credit originally issued solely on account of the operations of MEGTEC, Universal and their respective Subsidiaries to the extent that such obligations are Cash Collateralized or backstopped by a letter of credit (other than a Letter of Credit issued hereunder), in form and substance reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer).

 

39

 

 

Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a Revolving Credit Loan, a Swing Line Loan or a Term Loan.

 

Loan Documents” means this Agreement, each Note, the Guaranty, the Intercreditor Agreement, each Security Instrument, each Joinder Agreement, each Committed Loan Notice, each Issuer Document, each Fee Letter, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.03 or 2.15 of this Agreement and all other instruments and documents heretofore or hereafter executed or delivered to or in favor of the Administrative Agent, any Lender or any L/C Issuer in connection with the Loans made, Letters of Credit issued and transactions contemplated by this Agreement.

 

Loan Parties” means, collectively, the Borrower, each Guarantor and any other Person (other than a Lender) providing Collateral pursuant to any Security Instrument.

 

London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

 

Material Acquisition” means a Permitted Acquisition in which the sum of the cash consideration paid (including for the repayment and retirement of outstanding Indebtedness) plus any Indebtedness assumed equals or exceeds $100,000,000.

 

Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, assets, properties, liabilities (actual or contingent), or condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Document or of the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party.

 

Material Intellectual Property” has the meaning specified in the Collateral Agreement.

 

Material Real Property” means, any parcel of real property located in the United States and owned by any Loan Party that has a Fair Market Value in excess of $1,000,000; provided that the Administrative Agent may agree in its sole discretion to exclude from this definition any parcel of real property (and/or the buildings and contents therein) that is located in a special flood hazard area as designated by any federal Governmental Authority.

 

40

 

 

Material Subsidiary” means, as of any date of determination, any Subsidiary of the Borrower that (a) has assets that represent more than 10% of the consolidated GAAP value of the assets of the Borrower and its Subsidiaries, inclusive of the subject Subsidiary, as of such date or (b) contributed more than 10% of the EBITDA of the Borrower and its Subsidiaries, inclusive of the subject Subsidiary, during the most recently-ended four-quarter period of the Borrower (taken as a single period), or (c) with respect to any new Person acquired or created by the Borrower, (i) would have contributed more than 10% of the EBITDA of the Borrower and its Subsidiaries, inclusive of the subject Subsidiary, on a pro forma basis as of the last day of the most recently ended four-quarter period of the Borrower (taken as a single period) or (ii) held more than 10% of the consolidated GAAP value of the assets of the Borrower and its Subsidiaries, inclusive of the subject Subsidiary, as of such date, or (d) owns, directly or indirectly, Stock or Stock Equivalents in one or more other Subsidiaries of the Borrower that, when aggregated with such Subsidiary, (i) contributed more than 10% of the EBITDA of the Borrower and its Subsidiaries, inclusive of the subject Subsidiary, during the most recently ended four-quarter period of the Borrower (taken as single period) or (ii) held more than 10% of the consolidated GAAP value of the assets of the Borrower and its Subsidiaries, inclusive of the subject Subsidiary, as of such date.

 

Maturity Date” means (a) the Revolving Credit Facility Maturity Date or (b) the Term Loan Facility Maturity Date, as the context requires.

 

MEGTEC” means Babcock & Wilcox MEGTEC Holdings, Inc., Babcock & Wilcox MEGTEC, LLC, and their respective Subsidiaries.

 

Minimum Collateral Amount” means, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 100% of the Fronting Exposure of each L/C Issuer with respect to Letters of Credit issued by such L/C Issuer and outstanding at such time and (ii) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.15(a)(i) or (a)(ii), an amount equal to 100% of the Outstanding Amount of all LC Obligations.

 

Minimum Customer Concessions Amount” has the meaning specified in Section 6.38.

 

MIRE Event” means any increase, extension or renewal of any Commitment (including pursuant to Section 2.14), or the addition of any new commitment hereunder.

 

MLPFS” means Merrill Lynch, Pierce, Fenner & Smith Incorporated.

 

Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

 

Mortgagee Policies” has the meaning specified in Section 4.02(a)(iii)(B).

 

41

 

 

Mortgaged Properties” mean, initially, (a) each parcel of Real Property and the improvements thereto specified on Schedule 4.02(a)(iii) (except to the extent the Administrative Agent agrees, as provided in such definition, between the Execution Date and the Closing Date to exclude any such parcel (and/or the buildings and contents therein) from the definition of Material Real Property) and (b) shall include each other parcel of Material Real Property and improvements thereto with respect to which a Mortgage is granted pursuant to Section 6.23.

 

Mortgages” mean the fee or leasehold mortgages or deeds of trust, assignments of leases and rents and other security documents (including any such document delivered in connection with the Existing Credit Agreement and remaining in place in connection with this Agreement) granting a Lien on any Mortgaged Property to secure the Obligations, each in form and substance reasonably satisfactory to the Administrative Agent, as the same may be amended, supplemented, replaced or otherwise modified from time to time in accordance with this Agreement.

 

Multiemployer Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which the Borrower, any of its Subsidiaries, any Guarantor or any ERISA Affiliate has any obligation or liability, contingent or otherwise.

 

Net Cash Proceeds” means:

 

(a) with respect to any Asset Sale by, or Recovery Event of, the Borrower or any of its Subsidiaries, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such transaction (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by the applicable asset and that is required to be repaid in connection with such transaction (other than Indebtedness under the Loan Documents), (B) the reasonable out-of-pocket expenses incurred by the Borrower or such Subsidiary in connection with such transaction and (C) Taxes actually paid or withheld or reasonably expected to be paid or withheld within the twenty-four month period following the date of the relevant transaction (and Tax distributions or payments under a Tax sharing agreement with respect thereto) in connection with such Asset Sale or Recovery Event (including any Taxes paid or withheld or reasonably expected to be paid or withheld within the twenty-four month period following the date of the relevant transaction as a result of any gain recognized in connection therewith or any repatriation of the resulting cash or Cash Equivalents to the United States); provided that, if the amount of any estimated taxes pursuant to subclause (C) exceeds the amount of taxes actually required to be paid in cash in respect of such Asset Sale or Recovery Event, the aggregate amount of such excess shall constitute Net Cash Proceeds;

 

(b) with respect to the incurrence or issuance of any Indebtedness by the Borrower or any of its Subsidiaries, the excess of (i) the sum of the cash and Cash Equivalents received in connection with such transaction over (ii) the underwriting discounts and commissions, and other reasonable and customary out-of-pocket expenses and Taxes, incurred by the Borrower or such Subsidiary in connection therewith;

 

(c)  with respect to the issuance of any Stock or Stock Equivalents of the Borrower or contribution to the equity of the Borrower, the excess of (i) the sum of the cash and Cash Equivalents received in connection with such transaction over (ii) the reasonable and customary out-of-pocket expenses incurred by the Borrower or such Subsidiary in connection therewith; and

 

42

 

 

(d) with respect to any Released Cash Collateral, all of such Released Cash Collateral.

 

Non-Cash Consideration” means the Fair Market Value of non-cash consideration received by the Borrower or a Subsidiary in connection with an Asset Sale less the amount of cash or Cash Equivalents received in connection with a subsequent sale of or collection on such Non-Cash Consideration.

 

Non-Loan Parties” means, collectively, the Subsidiaries that are not Loan Parties.

 

Non-Recourse Indebtedness” means Indebtedness of a Joint Venture or Subsidiary of the Borrower (in each case that is not a Loan Party) (a) that, if it is incurred by a Subsidiary of the Borrower, is on terms and conditions reasonably satisfactory to the Administrative Agent, (b) that is not, in whole or in part, Indebtedness of any Loan Party (and for which no Loan Party has created, maintained or assumed any Guaranty Obligation) and for which no holder thereof has or could have upon the occurrence of any contingency, any recourse against any Loan Party or the assets thereof (other than (i) the Stock or Stock Equivalents issued by the Joint Venture or Subsidiary that is primarily obligated on such Indebtedness that are owned by a Loan Party and (ii) a requirement that a Loan Party make an Investment of equity in such Joint Venture in connection with the terms of such Indebtedness), (c) owing to an unaffiliated third-party (which for the avoidance of doubt does not include the Borrower, any Subsidiary thereof, any other Loan Party, any Joint Venture (or owner of any interest therein) and any Affiliate of any of them) and (d) the source of repayment for which is expressly limited to (i) the assets or cash flows of such Subsidiary or Joint Venture and (ii) the Stock and Stock Equivalents of such Subsidiary or Joint Venture securing such Indebtedness in compliance with the provisions of clause (b) above.

 

Note” means a promissory note made by the Borrower in favor of a Lender evidencing Term Loans, Revolving Credit Loans or Swing Line Loans, as the case may be, made by such Lender, substantially in the form of Exhibit C.

 

Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party (and, with respect to Secured Cash Management Agreements and Secured Hedge Agreements only, any Subsidiary of the Borrower) arising under any Loan Document or otherwise with respect to any Loan, Letter of Credit, Secured Cash Management Agreement or Secured Hedge Agreement, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party (or any Subsidiary of the Borrower solely with respect to Secured Cash Management Agreements and Secured Hedge Agreements) of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided that the Obligations shall exclude any Excluded Swap Obligations.

 

43

 

 

OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

 

OID” has the meaning specified in Section 2.09(b)(v).

 

Orion Plan” means an asset divestiture plan with respect to MEGTEC and Universal, which plan will include a detailed description of the analysis performed by the CIO to determine the process and timing to effectuate such sale and a detailed rationale for such decisions.

 

Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 10.13).

 

Outstanding Amount” means (a) with respect to Term Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Term Loans occurring on such date; (b) with respect to Revolving Credit Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Revolving Credit Loans occurring on such date; (c) with respect to Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Swing Line Loans occurring on such date; and (d) with respect to any L/C Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.

 

44

 

 

Overnight Rate” means, for any day, the greater of (a) the Federal Funds Rate and (b) an overnight rate determined by the Administrative Agent, the L/C Issuer, or the Swing Line Lender, as the case may be, in accordance with banking industry rules on interbank compensation.

 

Participant” has the meaning specified in Section 10.06(d).

 

Participant Register” has the meaning specified in Section 10.06(d).

 

PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.

 

Performance Guarantee” of any Person means (a) any letter of credit, bankers acceptance, surety bond, performance bond, bank guarantee or other similar obligation issued for the account of such Person to support only trade payables or nonfinancial performance obligations of such Person, (b) any letter of credit, bankers acceptance, surety bond, performance bond, bank guarantee or other similar obligation issued for the account of such Person to support any letter of credit, bankers acceptance, surety bond, performance bond, bank guarantee or other similar obligation issued for the account of a Subsidiary, a Joint Venture or a Consortium of such Person to support only trade payables or non-financial performance obligations of such Subsidiary, Joint Venture or Consortium, and (c) any parent company guarantee or other direct or indirect liability, contingent or otherwise, of such Person with respect to trade payables or non-financial performance obligations of a Subsidiary, a Joint Venture or a Consortium of such Person, if the purpose of such Person in incurring such liability is to provide assurance to the obligee that such contractual obligation will be performed, or that any agreement relating thereto will be complied with.

 

Performance Letter of Credit” means (a) a standby Letter of Credit issued to secure ordinary course performance obligations in connection with project engineering, procurement, construction, maintenance and other similar projects (including projects about to be commenced) or bids for prospective project engineering, procurement, construction, maintenance and other similar projects, and (b) a standby Letter of Credit issued to back a bank guarantee, surety bond, performance bond or other similar obligation in each case issued to support ordinary course performance obligations in connection with project engineering, procurement, construction, maintenance and other similar projects (including projects about to be commenced) or bids for prospective project engineering, procurement, construction, maintenance and other similar projects.

 

Permit” means any permit, approval, authorization, license, variance or permission required from a Governmental Authority under any applicable Requirements of Law.

 

Permitted Acquisition” means, the Acquisition of an Acquired Entity; provided that:

 

(a) such Acquisition was approved by the board of directors of such Acquired Entity;

 

(b) the Acquired Entity shall be in an Eligible Line of Business;

 

45

 

 

(c) the Borrower and its Subsidiaries shall comply with Sections 6.22 and 6.23, as applicable, within the time periods set forth in such Sections;

 

(d) at the time of such transaction:

 

(i) both before and after giving effect thereto, no Default shall have occurred and be continuing;

 

(ii) the Borrower would be in compliance with the Senior Leverage Ratio set forth in Section 7.16(b) as of the last day of the most recently completed four Fiscal Quarter period ended prior to such transaction for which the financial statements and certificates required by Section 6.01(a) or 6.01(b) have been delivered, after giving pro forma effect to such transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate as if such transaction had occurred as of the first day of such period (assuming, for purposes of pro forma compliance with Section 7.16(b), that the maximum Senior Leverage Ratio permitted at the time by such Section was in fact 0.25 to 1.00 more restrictive than the Senior Leverage Ratio actually provided for in such Section at such time); and

 

(iii) if the purchase price for such Acquisition is in excess of $50,000,000, the Borrower shall have delivered (prior to or simultaneously with the closing of such Acquisition) a certificate of a Responsible Officer, certifying as to the foregoing and containing reasonably detailed calculations in support thereof, in form and substance reasonably satisfactory to the Administrative Agent; and

 

(e) if (i) the Borrower is a party to such transaction, it shall be a surviving entity thereof and shall continue as the Borrower hereunder, and (ii) if any party to any such transaction is a Guarantor, the surviving entity of such transaction shall either be a Guarantor or become a Guarantor pursuant to Section 6.22.

 

Permitted L/C Party” means (a) the Borrower, (b) any Subsidiary of the Borrower, (c) any Joint Venture and (d) any Consortium.

 

Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

 

Plan” means an asset divestiture plan, which plan will include a detailed description of the analysis performed by the CIO to determine what assets to sell or retain, the process and timing to effectuate such sales and a detailed rationale for such decisions.

 

Platform” has the meaning specified in Section 6.01.

 

46

 

 

Pledged Interests” means (a) the Stock and Stock Equivalents of each of the existing or hereafter organized or acquired direct Domestic Subsidiaries of a Loan Party; and (b) 100% of the Voting Stock (or if the relevant Person shall own less than 100% of such Voting Stock, then 100% of the Voting Stock owned by such Person) and 100% of the nonvoting Stock and Stock Equivalents of each existing or hereafter organized or acquired First-Tier Foreign Subsidiary; provided that Pledged Interests shall not include any Stock or Stock Equivalents in (i) any Captive Insurance Subsidiary, (ii) any Joint Venture to the extent that the Constituent Documents of such Joint Venture prohibit such a security interest to be granted to the Administrative Agent, or (iii) any Subsidiary that is not a Loan Party or any Joint Venture (provided that this clause (iii) shall not prohibit or exclude any pledge of the Stock and Stock Equivalents of any Foreign Subsidiary that is required to be pledged pursuant to this Agreement) to the extent that such Joint Venture or Subsidiary has incurred Non-Recourse Indebtedness the terms of which either (A) require security interests in such Stock and Stock Equivalents to be granted to secure such Non-Recourse Indebtedness or (B) prohibit such a security interest to be granted to the Administrative Agent; providedfurther, that the Pledged Interests (x) shall not include any Stock or Stock Equivalents of a Foreign Subsidiary owned by any Person other than the Borrower or a Guarantor, and (y) shall not include any Stock or Stock Equivalents of any Excluded Domestic Subsidiary.

 

Prepayment Event” means:

 

(a) (i) any Asset Sale (other than an Asset Sale permitted by any of Section 7.04(a), (b), (c), (e), (f), (g), (h), (j), (k), (l) or (n)), (ii) any sale and leaseback transaction (whether or not permitted by Section 7.13) resulting in aggregate Net Cash Proceeds in excess of $3,000,000 for any single transaction or a series of related transactions or (iii) any Recovery Event; or

 

(b) the incurrence by the Borrower or any of its Subsidiaries of any Indebtedness, other than Indebtedness permitted under Section 7.01; or

 

(c) receipt by any Loan Party or any other Subsidiary of Released Cash Collateral (notwithstanding the obligations set forth in Section 6.26).

 

Project Burn” means the Asset Sale consummated pursuant to the Stock Purchase Agreement, in substantially the form provided to the Administrative Agent on August 7, 2018, between Covanta Pasco, Inc. and Power Systems Operations, Inc.

 

Project Top Hat” means the Asset Sale consummated pursuant to the Asset Purchase Agreement, in substantially the form provided to the Administrative Agent on March 8, 2018, between Cemtek Environmental Incorporated and The Babcock & Wilcox Company.

 

Projections” means those financial projections prepared by management of the Borrower consisting of balance sheets, income statements and cashflow statements of the Borrower and its Subsidiaries (giving effect to the Spinoff and the related transactions) covering the Fiscal Years ending in 2015 through 2019, inclusive, delivered to the Administrative Agent by the Borrower.

 

Public Lender” has the meaning specified in Section 6.01.

 

47

 

 

Qualified Rights Offering” has the meaning specified in the definition of “Additional Term Loan Prepayment”.

 

Rabbi Trust” means a “rabbi trust” or other similar arrangement established by the Borrower or any of its Subsidiaries to hold assets in connection with an employee benefit plan or arrangement.

 

Real Property” means all Mortgaged Property and all other real property owned or leased from time to time by any Loan Party or any of its Subsidiaries.

 

Recapitalization Transaction” means, prior to May 22, 2018, (i) the Borrower’s receipt of net cash proceeds of at least $240,000,000 from the issuance of Stock (other than Disqualified Stock) of the Borrower in accordance with the terms and conditions of the Equity Backstop Commitment Letter and the rights offering described therein and (ii) the use of such proceeds to immediately effect a Discharge of Second Priority Obligations, with the remainder to be retained by the Borrower and its Subsidiaries for working capital purposes.

 

Recipient” means the Administrative Agent, any Lender or any L/C Issuer.

 

Recovery Event” means any settlement of or payment in respect of any property or casualty insurance claim or professional liability insurance claims (other than to the extent reflected in the Borrower’s financial statements prior to the Amendment No. 6 Effective Date) or any taking or condemnation proceeding relating to any asset of the Borrower or any Subsidiary resulting in aggregate Net Cash Proceeds in excess of $3,000,000 for any single transaction or a series of related transactions.

 

Recovery Event Proceeds Account” means a blocked deposit account established at the Administrative Agent, as depository bank, to hold the proceeds of Recovery Events as required by Section 2.05(b)(vii).

 

Register” has the meaning specified in Section 10.06(c).

 

Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

 

Release” means, with respect to any Person, any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration, in each case, of any Contaminant into the indoor or outdoor environment or into or out of any property owned by such Person, including the movement of Contaminants through or in the air, soil, surface water, ground water or property and, in each case, in violation of Environmental Law.

 

Released Cash Collateral” has the meaning set forth in Section 6.26.

 

48

 

 

Relief Period” means the period commencing on the Amendment No. 2 Effective Date and terminating on the Relief Period Termination Date. For the avoidance of doubt, only one Relief Period may occur during the term of this Agreement, and no Relief Period may be in effect after the first date on which the Relief Period Termination Date occurs.

 

Relief Period Sublimit” means the lesser of (a) (x) commencing on the Amendment No. 16 Effective Date through September 30, 2019, $210,000,000, (y) from October 1, 2019 through January 24, 2020, $205,000,000 or (z) thereafter, $190,000,000,$205,000,000, plus, in each case, the principal amount of Revolving Credit Loans made pursuant to Section 2.03(c)(ii) (other than on account of any Extended Letter of Credit having been treated as drawn pursuant to Section 6.26) that have not been repaid, and (b) the Revolving Credit Facility. The Relief Period Sublimit is part of, and not in addition to, the Revolving Credit Facility. For purposes of this definition of “Relief Period Sublimit”, repayments and prepayments of Revolving Credit Loans shall be deemed to be applied, first, to Revolving Credit Loans not made pursuant to Section 2.03(c)(ii) and, second, to Revolving Credit Loans made pursuant to Section 2.03(c)(ii).

 

Relief Period Termination Date” means the date, which may be no earlier than the date of delivery of the Compliance Certificate for the fiscal quarter of the Borrower ending December 31, 2019, on which the Borrower has made a written request for the termination of the Relief Period, and has attached thereto a certification (including reasonably detailed calculations with respect thereto) demonstrating that (a) the Senior Leverage Ratio (calculated as of the last day of the most recent Fiscal Quarter ending on or prior to such day for which the financial statements and certificates required by Section 6.01(a) or 6.01(b) have been delivered) is not greater than 2.25 to 1.00 and (b) the Interest Coverage Ratio (calculated as of the last day of the most recent Fiscal Quarter ending on or prior to such day for which the financial statements and certificates required by Section 6.01(a) or 6.01(b) have been delivered) is not less than 4.00 to 1.00.

 

Remainco Credit Facilities” means the senior secured credit facilities to be entered into by (a) BWC on or about the Execution Date and (b) certain of its Subsidiaries (other than the Borrower and its Subsidiaries) on or about the Closing Date.

 

Remedial Action” means all actions required by any applicable Requirement of Law to (a) clean up, remove, treat or in any other way address any Contaminant in the indoor or outdoor environment, (b) prevent the Release or threat of Release or minimize the further Release so that a Contaminant does not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment or (c) perform pre remedial studies and investigations and post remedial monitoring and care.

 

Repayment Deadline” has the meaning set forth in Section 2.05(b)(vi).

 

49

 

 

Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Term Loans or Revolving Credit Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.

 

Required Lenders” means, as of any date of determination, Lenders holding more than 50% of the sum of (a) the Total Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition) and (b) the unused Aggregate Commitments. The Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders; provided that the amount of any participation in any Swing Line Loan and any Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender or applicable L/C Issuer, as the case may be, in making such determination.

 

Required Term Loan Lenders” means, as of any date of determination, Term Loan Lenders holding more than 50% of the Outstanding Amount of the Term Loan Facility on such date; provided that the portion of the Term Loan Facility held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Term Loan Lenders.

 

Requirement of Law” means, with respect to any Person, the common law and all federal, state, local and foreign laws, rules and regulations, orders, judgments, decrees and other determinations of any Governmental Authority or arbitrator, applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

 

Responsible Officer” means the chief executive officer, president, chief financial officer, treasurer or controller of a Loan Party and, solely for purposes of notices given for Credit Extensions, amendments to Letters of Credit, and continuations and conversions of Loans, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent (which such notice shall include a specimen signature and incumbency confirmation reasonably satisfactory to the Administrative Agent). Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

 

50

 

 

Restricted Payment” means (a) any dividend, distribution or any other payment whether direct or indirect, on account of any Stock or Stock Equivalents of the Borrower or any of its Subsidiaries now or hereafter outstanding, except a dividend payable solely in Stock or Stock Equivalents (other than Disqualified Stock) or a dividend or distribution payable solely to the Borrower or one or more Guarantors, (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Stock or Stock Equivalents of the Borrower or any of its Subsidiaries now or hereafter outstanding other than one payable solely to the Borrower or one or more Guarantors and, (c) any payment or prepayment of principal, premium (if any), interest, fees (including fees to obtain any waiver or consent in connection with any Indebtedness) or other charges on, or redemption, purchase, retirement, defeasance, sinking fund or similar payment with respect to, any Subordinated Debt of the Borrower or any other Loan Party, other than any Intercompany Subordinated Debt Payment or any required (in each case) payment, prepayment, redemption, retirement, purchases or other payments, in each case to the extent permitted to be made by the terms of such Subordinated Debt and (d) any payment in connection with matured or drawn obligations with respect to the [***] Letter of Credit, except in the form of payments or prepayments of Tranche A-5 Term Loans, subject to the provisions of Article XI and any other subordination terms set forth herein.

 

Revaluation Date” means, with respect to any Letter of Credit, each of the following: (a) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (b) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof (solely with respect to the increased amount), (c) each date of any payment by an L/C Issuer under any Letter of Credit denominated in an Alternative Currency, (d) in the case of Letters of Credit denominated in an Alternative Currency and outstanding as of the Closing Date under the Existing Credit Agreement for the account of a Permitted L/C Party, the Closing Date, and (e) such additional dates as the Administrative Agent or the applicable L/C Issuer shall determine or the Required Lenders shall require.

 

Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.

 

Revolving Credit Commitment” means, as to each Revolving Credit Lender, its obligation to make Revolving Loans to the Borrower pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

 

Revolving Credit Exposure” means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Credit Loans and such Lender’s participation in L/C Obligations and Swing Line Loans at such time.

 

51

 

 

Revolving Credit Facility” means, at any time, the aggregate amount of the Lenders’ Revolving Credit Commitments at such time. As of the Amendment No. 15 Effective Date, the aggregate amount of the Lenders’ Revolving Credit Commitments shall equal $346,983,706.46.

 

Revolving Credit Facility Maturity Date” means the fifth anniversary of the Closing Date, provided that if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.

 

Revolving Credit Facility Termination Date” means the date on which (a) the Aggregate Revolving Credit Commitment has been terminated in accordance with the terms hereof, (b) aggregate principal amount of all Revolving Credit Loans made to the Borrower outstanding and all other Obligations with respect to the Revolving Credit Facility have been indefeasibly paid in full in cash (other than contingent indemnification claims as to which no claim has been asserted) or, with respect to Letters of Credit constituting Obligations with respect to the Revolving Credit Facility, such Letters of Credit have been Cash Collateralized at 105% of face value pursuant to documentation in form and substance satisfactory to the Administrative Agent and (c) satisfactory arrangements have been made by the Borrower with the applicable Revolving Credit Lender and/or its Affiliate with respect to all Secured Cash Management Agreements and Secured Hedge Agreements.

 

Revolving Credit Increase” has the meaning specified in Section 2.14(a).

 

Revolving Credit Increase Lender” has the meaning specified in Section 2.14(d)(ii).

 

Revolving Credit Lender” means each Lender that has a Revolving Credit Commitment or holds Revolving Credit Loans, participations in L/C Obligations or participations in Swing Line Loans.

 

Revolving Credit Loan” has the meaning specified in Section 2.01.

 

S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc. and any successor thereto.

 

Sale Milestone” means the receipt by the Borrower and its Subsidiares of Net Cash Proceeds in excess of $100,000,000 from one or more Prepayment Events in connection with Asset Sales of Selected Assets occurring after the Amendment No. 5 Effective Date.

 

Same Day Funds” means (a) with respect to disbursements and payments in Dollars, immediately available funds, and (b) with respect to disbursements and payments in an Alternative Currency, same day or other funds as may be determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Alternative Currency.

 

52

 

 

Sanction(s)” means any sanction or trade embargo imposed, administered or enforced at the time of determination by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority exercising jurisdiction over the Borrower or its Subsidiaries from time to time, the violation of which constitutes a violation of the law of the United States or, as to any Subsidiary that is organized under the laws of any non-United States jurisdiction, the law of that jurisdiction.

 

SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

 

Second Lien Credit Agreement” means that certain Second Lien Term Loan Agreement, dated as of the Amendment No. 3 Effective Date (as amended or otherwise modified in accordance with the terms of the Intercreditor Agreement), by and among the Borrower, Lightship Capital LLC, as administrative agent, the lenders party thereto and the other entities party thereto.

 

Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between or among the Borrower and/or any (or one or more) Subsidiary of the Borrower and any Cash Management Bank.

 

Secured Hedge Agreement” means any Secured Swap Contract that is entered into by and between or among the Borrower and/or any (or one or more) Subsidiary of the Borrower and any Hedge Bank.

 

Secured Parties” means, collectively, the Administrative Agent, the Lenders, each L/C Issuer, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05, and the other Persons the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Security Instruments.

 

Secured Swap Contracts” means all Swap Contracts entered into by the Borrower and/or any (or one or more) Subsidiary of the Borrower designed to alter the risks of any Person arising from fluctuations in interest rates, currency values or commodity prices.

 

Security” means any Stock, Stock Equivalent, voting trust certificate, bond, debenture, promissory note or other evidence of Indebtedness, whether secured, unsecured, convertible or subordinated, or any certificate of interest, share or participation in, or any temporary or interim certificate for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing, but shall not include any evidence of the Obligations.

 

53

 

 

Security Instruments” means, collectively, the Collateral Agreement, the Mortgages, each Intellectual Property Security Agreement, and all other agreements (including Joinder Agreements, control agreements, supplements, collateral assignments and similar agreements), instruments and other documents, whether now existing or hereafter in effect, pursuant to which the Borrower, any Subsidiary or other Person (other than a Lender) shall grant or convey to the Administrative Agent (for the benefit of the Secured Parties) a Lien in, or any other Person shall acknowledge any such Lien in, property as security for all or any portion of the Obligations or any other obligation under any Loan Document.

 

Selected Assets” means assets identified by the CIO under either the Plan or the Orion Plan.

 

Senior Leverage Ratio” means, with respect to the Borrower and its Subsidiaries as of any day, the ratio of (a) Financial Covenant Debt (other than the Indebtedness incurred pursuant to the Second Lien Credit Agreement) of the Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP as of such day to (b) EBITDA for the Borrower and its Subsidiaries for the last four full Fiscal Quarters ending on or prior to such day for which the financial statements and certificates required by Section 6.01(a) or 6.01(b) have been delivered.

 

Solvent” means, with respect to any Person, that the value of the assets of such Person (both at fair value and present fair saleable value) is, on the date of determination, greater than the total amount of liabilities (including contingent and unliquidated liabilities) of such Person as of such date and that, as of such date, such Person is able to pay all liabilities of such Person as such liabilities are expected to mature and does not have unreasonably small capital for its then current business activities. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

 

Spinoff” means the distribution of 100% of the issued and outstanding Stock of the Borrower to the shareholders of BWC, to occur on or after the Closing Date, the result of which is that immediately thereafter 100% of the Stock of the Borrower shall be owned directly by the shareholders of BWC immediately prior to such Restricted Payment.

 

Spot Rate” for a currency means the rate determined by the applicable L/C Issuer, with notice thereof to the Administrative Agent, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the applicable L/C Issuer may obtain such spot rate from another financial institution designated by such L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided further that such L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Alternative Currency.

 

54

 

 

Stock” means shares of capital stock (whether denominated as common stock or preferred stock), partnership or membership interests, equity participations or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or similar business entity, whether voting or non-voting.

 

Stock Equivalents” means all securities convertible into or exchangeable for Stock and all warrants, options or other rights to purchase or subscribe for any Stock, whether or not presently convertible, exchangeable or exercisable.

 

Subordinated Debt” means (a) the Indebtedness incurred pursuant to the Second Lien Credit Agreement and (b) other Indebtedness (other than with respect to the Term Loan Facility) of the Borrower or any of its Subsidiaries pursuant to terms and conditions acceptable to the Administrative Agent and the Required Lenders in their respective sole discretion that is, by its terms, expressly subordinated to the prior payment of any of the Obligations pursuant to subordination terms and conditions acceptable to the Administrative Agent and the Required Lenders in their respective sole discretion. The terms of any Subordinated Debt may permit Intercompany Subordinated Debt Payments.

 

Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person; provided that any reference herein or in any other Loan Document to a “Subsidiary” of the Borrower shall exclude any Person whose financial statements are not consolidated with the financial statements of the Borrower in accordance with GAAP. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.

 

Swap Contract” means (a) any and all interest rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

 

55

 

 

Swap Obligations” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

 

Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.

 

Swing Line Lender” means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.

 

Swing Line Loan” has the meaning specified in Section 2.04(a).

 

Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit B or such other form as approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.

 

Swing Line Sublimit” means an amount equal to $0.00. The Swing Line Sublimit is part of, and not in addition to, the Revolving Credit Facility.

 

Tax Affiliate” means, with respect to any Person, (a) any Subsidiary of such Person, and (b) any Affiliate of such Person with which such Person files or is eligible to file consolidated U.S. federal income tax returns or consolidated, combined, unitary or similar tax returns for state, local or foreign tax purposes.

 

Tax Return” has the meaning specified in Section 5.08.

 

Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

Term Loan” means a Tranche A-1 Term Loan, a Tranche A-2 Term Loan, a Tranche A-3 Term Loan a Tranche A-4 Term Loan or a Tranche A-35 Term Loan, as the context may require.

 

Term Loan Borrowing” means any Tranche A-1 Term Loan Borrowing, any Tranche A-2 Term Loan Borrowing, any Tranche A-3 Term Loan Borrowing, any Tranche A-4 Term Loan Borrowing or any Tranche A-35 Term Loan Borrowing, as the context may require.

 

56

 

 

Term Loan Commitment” means any Tranche A-1 Term Loan Commitment, any Tranche A-2 Term Loan Commitment, any Tranche A-3 Term Loan Commitment, any Tranche A-4 Term Loan Commitment or any Tranche A-35 Term Loan Commitment, as the context may require.

 

Term Loan Facility” means, at any time, the aggregate principal amount of all the Term Loans outstanding at such time. As of the Amendment No. 9 Effective Date, the aggregate amount of the Tranche A-1 Term Loan Lenders’ Term Loan Commitments shall equal $35,000,000, plus an amount equal to the reasonable fees and expenses incurred by the Tranche A-1 Term Loan Lender with respect to the preparation and negotiation of the Tranche A Last Out Facility Commitment Letter and Amendment No. 9, which amounts are reimbursable under the Tranche A Last Out Facility Commitment Letter for which related invoices have been delivered to the Borrower and the Administrative Agent within two (2) Business Days after the Amendment No. 9 Effective Date (the “Initial Funding Term Loan Lender Expenses”). As of the Amendment No. 15 Effective Date, the aggregate amount of the Tranche A-2 Term Loan Lenders’ Term Loan Commitments shall equal $10,000,000. As of the Amendment No. 16 Effective Date, the aggregate amount of the Tranche A-3 Term Loan Lenders’ Term Loan Commitments shall equal $150,000,000. As of the Amendment No. 20 Effective Date, the aggregate amount of the Tranche A-4 Term Loan Lenders’ Term Loan Commitments shall equal $30,000,000.

 

Term Loan Facility Maturity Date” means December 31, 2020.

 

Term Loan Increase” has the meaning set forth in Section 2.14A(a).

 

Term Loan Increase Effective Date” has the meaning set forth in Section 2.14A(c).

 

Term Loan Lender” means each Lender that has a Term Loan Commitment or holds Term Loans.

 

Term Loan Prefunding Requirement” has the meaning set forth in Section 2.02(b).

 

Test Date” has the meaning set forth in Section 2.05(b)(vi).

 

Title IV Plan” means an “employee pension benefit plan” (as defined by Section 3(2) of ERISA), other than a Multiemployer Plan, covered by Title IV of ERISA or Section 412 of the Code and to which the Borrower, any of its Subsidiaries, any Guarantor or any ERISA Affiliate has any obligation or liability (contingent or otherwise).

 

Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.

 

Total Revolving Outstandings” means the aggregate Outstanding Amount of all Revolving Credit Loans and all L/C Obligations.

 

57

 

 

Tranche” means, with respect to a Term Loan, its character as a Tranche A-1 Term Loan, a Tranche A-2 Term Loan, a Tranche A-3 Term Loan, a Tranche A-4 Term Loan or a Tranche A-35 Term Loan.

 

Tranche A Last Out Facility Commitment Letter” means each of (a) that certain letter regarding the last out term loan financing commitment, dated as of the Amendment No. 8 Effective Date, between Vintage Capital Management, LLC and B. Riley FBR, Inc. and (b) that certain letter regarding the last out term loan financing commitment, dated as of the Amendment No. 8 Effective Date, between the Borrower and Vintage Capital Management, LLC.

 

Tranche A-1 Term Loan” has the meaning specified in Section 2.01A.

 

Tranche A-1 Term Loan Borrowing” means a borrowing consisting of simultaneous Term Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01A.

 

Tranche A-1 Term Loan Commitment” means, as to each Tranche A-1 Term Loan Lender, its obligation to make Term Loans to the Borrower pursuant to Section 2.01A in an aggregate principal amount not to exceed the Dollar amount set forth opposite such Tranche A-1 Term Loan Lender’s name on Schedule 2.01 or opposite such caption in the Assignment and Assumption pursuant to which such Tranche A-1 Term Loan Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. Each Tranche A-1 Lender’s Term Loan Commitment shall be permanently reduced by the amount of Tranche A-1 Term Loans made to the Borrower by such Tranche A-1 Term Loan Lender.

 

Tranche A-1 Term Loan Lender” means each Lender that has a Term Loan Commitment pursuant to Section 2.01A or holds Tranche A-1 Term Loans.

 

Tranche A-2 Term Loan” has the meaning specified in Section 2.01B.

 

Tranche A-2 Term Loan Borrowing” means a borrowing consisting of simultaneous Term Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01B.

 

Tranche A-2 Term Loan Commitment” means, as to each Tranche A-2 Term Loan Lender, its obligation to make Term Loans to the Borrower pursuant to Section 2.01B in an aggregate principal amount not to exceed the Dollar amount set forth opposite such Tranche A-2 Term Loan Lender’s name on Schedule 2.01 or opposite such caption in the Assignment and Assumption pursuant to which such Tranche A-2 Term Loan Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. Each Tranche A-2 Lender’s Term Loan Commitment shall be permanently reduced by the amount of Tranche A-2 Term Loans made to the Borrower by such Tranche A-2 Term Loan Lender.

 

58

 

 

Tranche A-2 Term Loan Lender” means each Lender that has a Term Loan Commitment pursuant to Section 2.01B or holds Tranche A-2 Term Loans.

 

Tranche A-3 Term Loan” has the meaning specified in Section 2.01C.

 

Tranche A-3 Term Loan Borrowing” means the borrowing consisting of a Tranche A-3 Term Loan made pursuant to Section 2.01C.

 

Tranche A-3 Term Loan Commitment” means, as to each Tranche A-3 Term Loan Lender, its obligation to make Term Loans to the Borrower pursuant to Section 2.01C in an aggregate principal amount not to exceed the Dollar amount set forth opposite such Tranche A-3 Term Loan Lender’s name on Schedule 2.01 or opposite such caption in the Assignment and Assumption pursuant to which such Tranche A-3 Term Loan Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. Each Tranche A-3 Term Loan Lender’s Term Loan Commitment shall be permanently reduced by the amount of Tranche A-3 Term Loans made to the Borrower by such Tranche A-3 Term Loan Lender.

 

Tranche A-3 Term Loan Lender” means each Lender that has a Term Loan Commitment pursuant to Section 2.01C or holds Tranche A-3 Term Loans.

 

“Tranche A-4 Term Loan” has the meaning specified in Section 2.01D.

 

“Tranche A-4 Term Loan Borrowing” means the borrowing consisting of a Tranche A-4 Term Loan made pursuant to Section 2.01D.

 

“Tranche A-4 Term Loan Commitment” means, as to each Tranche A-4 Term Loan Lender, its obligation to make Term Loans to the Borrower pursuant to Section 2.01D in an aggregate principal amount not to exceed the Dollar amount set forth opposite such Tranche A-4 Term Loan Lender’s name on Schedule 2.01 or opposite such caption in the Assignment and Assumption pursuant to which such Tranche A-4 Term Loan Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. Each Tranche A-4 Term Loan Lender’s Term Loan Commitment shall be permanently reduced by the amount of Tranche A-4 Term Loans made to the Borrower by such Tranche A-4 Term Loan Lender.

 

“Tranche A-4 Term Loan Lender” means each Lender that has a Term Loan Commitment pursuant to Section 2.01D or holds Tranche A-4 Term Loans.

 

“Tranche A-5 Term Loan” has the meaning specified in Section 2.01E.

 

“Tranche A-5 Term Loan Borrowing” means a borrowing consisting of a Tranche A-5 Term Loan made pursuant to Section 2.01E.

 

59

 

 

“Tranche A-5 Term Loan Commitment” means, as to the Tranche A-5 Term Loan Lender, the deemed making of Term Loans to the Borrower pursuant to Section 2.01E in an aggregate principal amount not to exceed the Indebtedness described in Section 7.01(r).

 

“Tranche A-5 Term Loan Lender” means B. Riley Financial, Inc.

 

Trigger Event” has the meaning set forth in Section 2.05(b)(vi).

 

Type” means, with respect to a Loan, its character as a Base Rate Loan, a Eurocurrency Rate Loan or (with respect to Terms Loans only) a Fixed Rate Loan.

 

UCC” has the meaning specified in the Collateral Agreement.

 

UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).

 

United States” and “U.S.” mean the United States of America.

 

Universal” means Babcock & Wilcox Universal, Inc. and its Subsidiaries.

 

Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).

 

U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.

 

U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(f)(ii)(B)(III).

 

Vølund Projects” means projects related to the manufacture, construction, maintenance and operation of renewable energy plants in the United Kingdom, Denmark, Sweden, other Scandinavian countries and Indonesia by Babcock & Wilcox Vølund A/S, an indirect Subsidiary of the Borrower, and/or one or more Subsidiaries or Affiliates of Babcock & Wilcox Vølund A/S, including Babcock & Wilcox Vølund A/B.

 

Vølund Projects Schedule” means, for each Vølund Project, the Project Status Report schedule for such project most recently delivered to FTI prior to the Amendment No. 5 Effective Date.

 

Vølund Projects Settlements” means (a) with respect to the Vølund Project located at [***], the Termination and Settlement Agreement, dated March 29, 2019 between [***], [***], Babcock & Wilcox Vølund A/S and The Babcock & Wilcox Company, (b) with respect to the Vølund Project located at [***], the Deed of Termination of Construction Contract for [***], dated February 28, 2019, between [***], [***] and The Babcock & Wilcox Company and (c) with respect to the Vølund Project located at [***], the Deed of Agreement and Settlement of Claims relating to an EPC contract dated 23 January 2015 in relation to [***], dated March 29, 2019, between [***], Babcock & Wilcox Vølund A/S, [***] and The Babcock and Wilcox Company.

 

60

 

 

Voting Stock” means Stock of any Person having ordinary power to vote in the election of members of the board of directors, managers, trustees or similar controlling Persons, of such Person (irrespective of whether, at the time, Stock of any other class or classes of such entity shall have or might have voting power by reason of the happening of any contingency).

 

Wholly-Owned” means, in respect of any Subsidiary of any Person, a circumstance where all of the Stock of such Subsidiary (other than director’s qualifying shares, and the like, as may be required by applicable law) is owned by such Person, either directly or indirectly through one or more Wholly-Owned Subsidiaries thereof.

 

Withdrawal Liability” means, with respect to the Borrower, any of its Subsidiaries or any Guarantor, the aggregate liability incurred (whether or not assessed) with respect to all Multiemployer Plans pursuant to Section 4201 of ERISA.

 

Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

 

Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

 

(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Constituent Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

 

61

 

 

(b) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”

 

(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

 

Accounting Terms.

 

(a) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the audited financial statements for the Fiscal Year ended December 31, 2014, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.

 

(b) Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases (including leases entered into or renewed after the Closing Date) shall be classified and accounted for (and the interest component thereof calculated) on a basis consistent with that reflected in the audited financial statements for the Fiscal Year ended December 31, 2014 for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above.

 

62

 

 

(c) Consolidation of Variable Interest Entities. All references herein to consolidated financial statements of the Borrower and its Subsidiaries or to the determination of any amount for the Borrower and its Subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Borrower is required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as defined herein.

 

Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

 

Exchange Rates; Currency Equivalents.

 

(a) The applicable L/C Issuer shall determine the Spot Rates (and notify the Administrative Agent of the same) as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of L/C Credit Extensions and Outstanding Amounts denominated in Alternative Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by Loan Parties hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent or the applicable L/C Issuer, as applicable.

 

(b) Wherever in this Agreement in connection with the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Letter of Credit is denominated in an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the applicable L/C Issuer, as the case may be.

 

Alternative Currencies.

 

(a) The Borrower may from time to time request that one or more L/C Issuers issue and maintain Letters of Credit denominated in a currency other than Dollars. Any such request shall be subject to the approval of the L/C Issuer that will be issuing Letters of Credit in such currency.

 

(b) Any such request shall be made by the Borrower to one or more L/C Issuers not later than 11:00 a.m., ten Business Days prior to the date of the desired issuance of a Letter of Credit in such currency (or such other time or date as may be agreed by any such L/C Issuer, in its sole discretion).

 

63

 

 

(c) If any L/C Issuer consents to the issuance of Letters of Credit in such requested currency, such L/C Issuer shall so notify the Borrower and the Administrative Agent, and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Letter of Credit issuances by each such approving L/C Issuer (but not by any L/C Issuer not approving such currency).

 

(d) Prior to the Closing Date, each L/C Issuer may agree, or may have agreed under the Existing Credit Agreement, with the Borrower to issue Letters of Credit in particular currencies (other than Dollars) immediately upon, and at all times after, the Closing Date, or under the Existing Credit Agreement, and each L/C Issuer and the Borrower shall notify the Administrative Agent (if not already notified pursuant to the Existing Credit Agreement) of the currencies (other than Dollars) approved by such L/C Issuer prior to or on the Closing Date.

 

Times of Day; Rates.

 

(a) Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

 

(b) The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to, the administration, submission or any other matter related to the rates in the definition of “Eurocurrency Rate” or with respect to any comparable or successor rate thereto.

 

Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; providedhowever, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

 

Surviving Provisions Perpetual1.10 . Unless otherwise specified herein, each of the parties hereto expressly intend that any provision herein stated to survive the payment in full of the Obligations and the termination of this Agreement is of perpetual duration.

 

ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS

 

Revolving Credit Loans. Subject to the terms and conditions set forth herein, each Revolving Credit Lender severally agrees to make loans to the Borrower in Dollars (each such loan, a “Revolving Credit Loan”) from time to time, on any Business Day during the Availability Period for the Revolving Credit Facility, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Credit Commitment; providedhowever, that after giving effect to any Revolving Credit Borrowing, (i) the Total Revolving Outstandings shall not exceed the Revolving Credit Facility, (ii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Revolving Credit Commitment and (iii) during the Relief Period, the aggregate outstanding principal amount of Revolving Credit Loans shall not exceed the Relief Period Sublimit. Within the limits of each Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Revolving Credit Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.

 

64

 

 

2.01A Tranche A-1 Term Loans. Subject to the terms and conditions set forth herein, each Tranche A-1 Term Loan Lender severally agrees to make loans to the Borrower in Dollars (each such loan, a “Tranche A-1 Term Loan”) from time to time, on any Business Day during the Availability Period with respect to the Term Loan Facility, in an aggregate amount not to exceed such Term Loan Lender’s Term Loan Commitment. Tranche A-1 Term Loans may be Base Rate Loans or Eurocurrency Rate Loans prior to the Amendment No. 16 Effective Date and, thereafter, shall be Fixed Rate Loans, as further provided herein. Subject to the other terms and conditions hereof, the Borrower may prepay the Tranche A-1 Term Loans pursuant to Section 2.05, subject to any subordination terms set forth herein. Amounts so prepaid or repaid may not be reborrowed.

 

2.01B  Tranche A-2 Term Loans.  Subject to the terms and conditions set forth herein, each Tranche A-2 Term Loan Lender severally agrees to make loans to the Borrower in Dollars (each such loan, a “Tranche A-2 Term Loan”) on the Amendment No. 15 Effective Date, in an aggregate amount not to exceed such Term Loan Lender’s Term Loan Commitment. Tranche A-2 Term Loans may be Base Rate Loans or Eurocurrency Rate Loans prior to the Amendment No. 16 Effective Date and, thereafter, shall be Fixed Rate Loans, as further provided herein. Subject to the other terms and conditions hereof, the Borrower may prepay the Tranche A-2 Term Loans pursuant to Section 2.05, subject to any subordination terms set forth herein. Amounts so prepaid or repaid may not be reborrowed.

 

2.01C Tranche A-3 Term Loans.  Subject to the terms and conditions set forth herein, each Tranche A-3 Term Loan Lender severally agrees to make loans to the Borrower in Dollars (each such loan, a “Tranche A-3 Term Loan”) on the Amendment No. 16 Effective Date, in an aggregate amount not to exceed such Term Loan Lender’s Tranche A-3 Term Loan Commitment. Tranche A-3 Term Loans shall be Fixed Rate Loans, as further provided herein. Subject to the other terms and conditions hereof, the Borrower may prepay the Tranche A-3 Term Loans pursuant to Section 2.05, subject to any subordination terms set forth herein. Amounts so prepaid or repaid may not be reborrowed.

 

2.01D Tranche A-4 Term Loans. Subject to the terms and conditions set forth herein, each Tranche A-4 Term Loan Lender severally agrees to make loans to the Borrower in Dollars (each such loan, a “Tranche A-4 Term Loan”) on the Amendment No. 20 Effective Date, in an aggregate amount not to exceed such Term Loan Lender’s Tranche A-4 Term Loan Commitment. Tranche A-4 Term Loans shall be Fixed Rate Loans, as further provided herein. Subject to the other terms and conditions hereof, the Borrower may prepay the Tranche A-4 Term Loans pursuant to Section 2.05, subject to any subordination terms set forth herein. Amounts so prepaid or repaid may not be reborrowed.

 

65

 

 

2.01E Tranche A-5 Term Loans. Subject to the terms and conditions set forth herein, each Tranche A-5 Term Loan Lender shall be deemed to have made loans to the Borrower in Dollars (each such loan, a “Tranche A-5 Term Loan”) on any Business Day during the Availability Period with respect to the Term Loan Facility (which date shall correspond with the date that the principal amount of such Tranche A-5 Term Loans was drawn under the [***] Letter of Credit as set forth in a Committed Loan Notice, and the Borrower shall deliver such a Committed Loan Notice within two (2) Business Days of any such drawing (or such longer period, not to exceed five (5) Business Days, in the Administrative Agent’s reasonable discretion) with respect to such Tranche A-5 Term Loan, in an aggregate amount not to exceed the Term Loan Lender’s Tranche A-5 Term Loan Commitment; provided that the Tranche A-5 Term Loan Lender shall also deliver a [***] Drawing Certificate to the Administrative Agent certifying that such amounts have been drawn under the [***] Letter of Credit. Tranche A-5 Term Loans shall be Fixed Rate Loans, as further provided herein. Subject to the other terms and conditions hereof, the Borrower may prepay the Tranche A-5 Term Loans pursuant to Section 2.05, subject to any subordination terms set forth herein. Amounts so prepaid or repaid may not be reborrowed. The Administrative Agent shall not be responsible for or have any duty to request any [***] Drawing Certificate or ascertain or inquire into any [***] Drawing Certificate or the contents of any [***] Drawing Certificate.

 

Borrowings, Conversions and Continuations of Loans.

 

(a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by (A) telephone or (B) a Committed Loan Notice; provided that any telephonic notice must be confirmed promptly by delivery to the Administrative Agent of a Committed Loan Notice. Each such notice must be received by the Administrative Agent not later than 1:00 p.m. (i) (x) three Business Days prior to the requested date of any Revolving Credit Borrowing or Term Loan Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or of any conversion of Eurocurrency Rate Loans to Base Rate Loans or, (y) on any date prior to the termination of the Availability Period with respect to the Term Loans, eight Business Days prior to such requested date of any such Revolving Credit Borrowing or Term Loan Borrowing and (ii) (x) on the requested date of any Revolving Credit Borrowing or Term Loan Borrowing of Base Rate Loans or (y) on any date prior to the termination of the Availability Period with respect to the Term Loans, three Business Days prior to such requested date of any such Revolving Credit Borrowing or Term Loan Borrowing; provided however that such notice with respect to the Initial Tranche A Term Loan Funding must be received by the Administrative Agent not later than 1:00 p.m. one Business Day prior to such Term Loan Borrowing; provided further that if the Borrower wishes to request Eurocurrency Rate Loans having an Interest Period other than one, two, three or six months in duration as provided in the definition of “Interest Period,” the applicable notice must be received by the Administrative Agent not later than 1:00 p.m. four Business Days prior to the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans, whereupon the Administrative Agent shall give prompt notice to the Lenders under the applicable Facility of such request and determine whether the requested Interest Period is acceptable to all of them. Not later than 1:00 p.m., three Business Days before the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans having an Interest period other than one, two, three or six months in duration as provided in the definition of “Interest Period”, the Administrative Agent shall notify the Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all such Lenders. Each Revolving Credit Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c), each Revolving Credit Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice shall specify (i) whether the Borrower is requesting a Revolving Credit Borrowing and/or a Term Loan Borrowing, a conversion of Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the requested date of the Borrowing(s), conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Revolving Credit Loans and/or Term Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Committed Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. Notwithstanding anything to the contrary herein, a Swing Line Loan may not be converted to a Eurocurrency Rate Loan. Notwithstanding the above, all Term Loans shall automatically be converted into Fixed Rate Loans on the Amendment No. 16 Effective Date.

 

66

 

 

(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans as described in Section 2.02(a). In the case of a Revolving Credit Borrowing, each Lender shall make the amount of its Revolving Credit Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office not later than (i) 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice so long as such Committed Loan Notice was received prior to the Business Day specified for such Revolving Credit Borrowing in such Committed Loan Notice and (ii) 3:00 p.m. in the case of any Revolving Credit Borrowing requested in a Committed Loan Notice that was received on the same Business Day as the Business Day specified for such Revolving Credit Borrowing in the applicable Committed Loan Notice. In the case of a Term Loan Borrowing, each Term Loan Lender shall make the amount of its Term Loan available (less any Amendment No. 9 Closing Fee, Initial Funding Term Loan Lender Expenses and/or OID to be netted against any Tranche A-1 Term Loan Borrowing on such proposed Term Loan Borrowing date in accordance with clause (y) below) to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office not later than (i) 11:00 a.m. on the Business Day specified for such Term Loan Borrowing in the applicable Committed Loan Notice and (ii) solely with respect to the Initial Tranche A Term Loan Funding, 3:00 p.m. on the Business Day immediately prior to the Business Day specified for such Term Loan Borrowing in the applicable Committed Loan Notice (clauses (i) and (ii) together, the “Term Loan Prefunding Requirement”). Upon satisfaction of the applicable conditions set forth in Sections 4.034.044.05, 4.06 and 4.07 (and, if such Borrowing is the initial Credit Extension, Section 4.02), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account (other than the Recovery Event Proceeds Account) of the Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower; providedhowever, that (x) if on the date a Committed Loan Notice with respect to a Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings, and second, shall be made available to the Borrower as provided above, and (y) (A) if such Borrowing includes a Tranche A-1 Term Loan Borrowing, any Amendment No. 9 Closing Fee, Initial Funding Term Loan Lender Expenses or OID shall be netted from the amounts to be made available to the Borrower as provided above and (B) to the extent any Term Loan Borrowing results in a Trigger Event or if a Repayment Deadline exists, proceeds of the applicable Term Loan Borrowing may be applied to the prepayment of Revolving Credit Loans in amounts equal to the excess of the thresholds set forth in the definition of “Trigger Event”. For the avoidance of doubt, the Administrative Agent shall have no obligation to make any amounts available to the Borrower on a proposed date of any Borrowing if such amounts have not been received by the Administrative Agent from the applicable Lenders.

 

(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan. During the existence of a Default, no Loans may be requested as, converted to or continued as Eurocurrency Rate Loans without the consent of the Required Lenders.

 

(d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.

 

67

 

 

(e) After giving effect to all Revolving Credit Borrowings, all conversions of Revolving Credit Loans from one Type to the other, and all continuations of Revolving Credit Loans as the same Type, there shall not be more than five Interest Periods in effect in respect of the Revolving Credit Facility. After giving effect to all Term Loan Borrowings, all conversions of Term Loans from one Type to the other, and all continuations of Term Loans as the same Type, there shall not be more than five Interest Periods in effect in respect of the Term Loan Facility.

 

(f) Notwithstanding anything set forth above, all Revolving Credit Borrowings and Tranche A-1 Term Loan Borrowings made during the Availability Period with respect to the Term Loan Facility shall be made in amounts such that the proportions thereof satisfy the Funding Ratio.

 

(g) No amounts funded to the Administrative Agent in satisfaction of the Term Loan Prefunding Requirement shall earn or accrue interest hereunder or otherwise until such funds are made available to the Borrower in accordance with clause (b) above.

 

Letters of Credit.

 

(a) The Letter of Credit Commitment.

 

(i) Subject to the terms and conditions set forth herein, (A) (x) each L/C Issuer agrees to issue Letters of Credit and (y) notwithstanding their respective approval rights under Section 2.03(a)(ii) but subject to the proviso therein, each Extended Letter of Credit Issuer agrees to issue Extended Letters of Credit, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, denominated in Dollars or in one or more Alternative Currencies applicable to such L/C Issuer for the account of any Permitted L/C Party, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of any Permitted L/C Party and any drawings thereunder, including Extended Letters of Credit; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (v) the Total Revolving Outstandings shall not exceed the Revolving Credit Facility, (w) the Revolving Credit Exposure of any Revolving Credit Lender shall not exceed such Lender’s Revolving Credit Commitment, (x) the Outstanding Amount of the L/C Obligations in Alternative Currencies shall not exceed the Alternative Currency Sublimit, (y) the aggregate Outstanding Amount of all Financial Letters of Credit and commercial letters of credit at any time shall not exceed (i) other than during the Relief Period, $150,000,000 and (ii) during the Relief Period, $35,000,000 and (z) the Outstanding Amount of L/C Obligations of any L/C Issuer shall not exceed the L/C Issuer Sublimit of such L/C Issuer. Each request by the Borrower or a Permitted L/C Party for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period listed in subclause (A)(1) of this Section, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. For the avoidance of doubt, all Letters of Credit outstanding under the Existing Credit Agreement as of the Closing Date for the account of a Permitted L/C Party shall in each case be deemed to have been Letters of Credit issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.

 

68

 

 

(ii) No L/C Issuer shall issue any Letter of Credit if the expiry date of such requested Letter of Credit would occur after the date that is seven Business Days prior to the Revolving Credit Facility Maturity Date (each such issued Letter of Credit, an “Extended Letter of Credit”) unless the applicable L/C Issuer has approved such later expiry date, it being acknowledged and agreed that each such Extended Letter of Credit shall be Cash Collateralized in accordance with Section 6.26provided that the Extended Letters of Credit Issuers are deemed to approve of each such later expiry date so long as such expiry date is not later than the one year anniversary of the Revolving Credit Facility Maturity Date.

 

(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:

 

(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing the Letter of Credit, or any Requirement of Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon such L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good faith deems material to it;

 

(B) the issuance of the Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;

 

(C) except as otherwise agreed by such L/C Issuer, the Letter of Credit is in an initial stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;

 

69

 

 

(D) except as otherwise agreed by such L/C Issuer, the Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency applicable to such L/C Issuer;

 

(E) such L/C Issuer does not, as of the issuance date of such requested Letter of Credit, issue Letters of Credit in the requested currency; or

 

(F) any Revolving Credit Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.

 

(iv) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.

 

(v) No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.

 

(vi) Each L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuers with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuers or any of them.

 

(vii) Notwithstanding anything to the contrary contained herein, from and after the Amendment No. 5 Effective Date, L/C Credit Extensions (other than on account of Financial Letters of Credit) shall be limited to the following purposes: (A) renewals of existing Letters of Credit, provided that increases to the Outstanding Amount thereof shall not exceed 105% of such Outstanding Amount, (B) L/C Credit Extensions solely on account of the operations of the power segment (i.e., the Borrower and its Subsidiaries’ portion of their business that provides the supply of and aftermarket services for steam-generating, environmental, and auxiliary equipment for power generation and other industrial applications), (C) L/C Credit Extensions solely on account of the operations of Babcock & Wilcox MEGTEC Holdings, Inc. and its Subsidiaries, (D) L/C Credit Extensions solely on account of the operations of Babcock & Wilcox SPIG Inc., (E) L/C Credit Extensions on account of the operations of Babcock & Wilcox Loibl GmbH of an aggregate Outstanding Amount not to exceed €7,500,000, (F) L/C Credit Extensions solely on account of the operations of Babcock & Wilcox Universal, Inc. and its Subsidiaries (other than Foreign Subsidiaries), (G) L/C Credit Extensions on account of the operations of any Vølund Project of an aggregate Outstanding Amount not to exceed $20,000,000 and (H) other purposes upon prior written approval by the Administrative Agent and the Required Lenders.

 

70

 

 

(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.

 

(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the applicable L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower or the applicable Permitted L/C Party. Such Letter of Credit Application may be sent by facsimile, by United States mail, by overnight courier, by electronic transmission using the system provided by the applicable L/C Issuer, by personal delivery or by any other means acceptable to such L/C Issuer. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day unless otherwise permitted by such L/C Issuer); (B) the amount and currency thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) whether such requested Letter of Credit is a Performance Letter of Credit, a Financial Letter of Credit or a commercial Letter of Credit; (H) the Permitted L/C Party for whom such Letter of Credit is to be issued; and (I) such other matters as the L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day unless otherwise permitted by such L/C Issuer); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may reasonably require. Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may reasonably require.

 

71

 

 

(ii) Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the applicable Permitted L/C Party or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of the Applicable Percentage of such Lender times the amount of such Letter of Credit.

 

(iii) If the Borrower or any Permitted L/C Party so requests in any applicable Letter of Credit Application, the applicable L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once prior to the then applicable expiration date of such Letter of Credit (without giving effect to the next ensuing extension thereof) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit such extensions of such Letter of Credit; provided that if any such extension results in any such Letter of Credit becoming an Extended Letter of Credit the Borrower shall provide Cash Collateral therefor in accordance with Section 6.26providedhowever, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 4.03 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.

 

(iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.

 

72

 

 

(c) Drawings and Reimbursements; Funding of Participations.

 

(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable L/C Issuer shall notify the Borrower and the Administrative Agent thereof. In the case of any draw under a Letter of Credit denominated in an Alternative Currency, the L/C Issuer shall notify the Borrower of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof. The Borrower agrees to pay to the L/C Issuer of any Letter of Credit that has been drawn upon the amount of all draws thereunder, in Dollars (or the Dollar Equivalent of such payment if such payment was made in an Alternative Currency), no later than (x) the Business Day on which the L/C Issuer has provided notice thereof to the Borrower if such notice has been provided prior to 11:00 a.m. on such Business Day, or (y) no later than 10:00 a.m. on the next succeeding Business Day after the Borrower receives such notice from such L/C Issuer if such notice is not received prior to 11:00 a.m. on such day (each such date, an “Honor Date”), and such L/C Issuer shall provide prompt notice to the Administrative Agent of such reimbursement. If the Borrower fails to so reimburse the applicable L/C Issuer by such time, such L/C Issuer shall promptly notify the Administrative Agent of the Honor Date and the amount of the unreimbursed drawing (expressed in Dollars in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit denominated in an Alternative Currency) (the “Unreimbursed Amount”), and the Administrative Agent shall provide such notice, along with the amount of such Lender’s Applicable Percentage thereof, to each Lender. In such event, the Borrower shall be deemed to have requested a (x) Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Revolving Credit Commitments and the conditions set forth in Section 4.03 (other than the delivery of a Committed Loan Notice), and, (y) during the period (I) commencing after the occurrence of the Initial Tranche A Term Loan Funding and (II) ending on the last day of the Availability Period with respect to the Term Loan Facility, a Term Loan Borrowing in the amount of such Revolving Credit Borrowing (plus any OID to be netted against such Term Loan Borrowing), but subject to the amount of the unutilized portion of the Term Loan Commitments and the conditions set forth in Section 4.05 (other than the delivery of a Committed Loan Notice). Any notice given by any L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

 

73

 

 

(ii) Each Revolving Credit Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the L/C Issuer, in Dollars, at the Administrative Agent’s Office for Dollar-denominated payments in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Revolving Credit Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer in Dollars.

 

(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in Section 4.03 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.

 

(iv) Until each Lender funds its Revolving Credit Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of the applicable L/C Issuer.

 

(v) Each Lender’s obligation to make Revolving Credit Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against any L/C Issuer, the Borrower, any Subsidiary or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; providedhowever, that each Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.03 (other than delivery by the Borrower of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the applicable L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.

 

74

 

 

(vi) If any Lender fails to make available to the Administrative Agent for the account of any L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), then, without limiting the other provisions of this Agreement, the applicable L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Loan included in the relevant Revolving Credit Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the applicable L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.

 

(d) Repayment of Participations.

 

(i) At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c), if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof in Dollars and in the same funds as those received by the Administrative Agent.

 

(ii) If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable Overnight Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

 

(e) Obligations Absolute. The obligation of the Borrower to reimburse the applicable L/C Issuer for each drawing under each Letter of Credit and, without duplication, to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

 

(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;

 

(ii) the existence of any claim, counterclaim, setoff, defense or other right that the Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

 

75

 

 

(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;

 

(iv) waiver by the L/C Issuer of any requirement that exists for the L/C Issuer’s protection and not the protection of the Borrower or any waiver by the L/C Issuer which does not in fact materially prejudice the Borrower;

 

(v) any payment made by the L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the UCC, the ISP or the UCP, as applicable;

 

(vi) any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;

 

(vii) any adverse change in the relevant exchange rates or in the availability of the relevant Alternative Currency to the Borrower or any Subsidiary or in the relevant currency markets generally; or

 

(viii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower or any Subsidiary.

 

The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will immediately notify the L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid, but only to the extent not prohibited by any applicable Requirement of Law.

 

76

 

 

(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, no L/C Issuer shall have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; providedhowever, that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (viii) of Section 2.03(e)providedhowever, that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the applicable L/C Issuer, and the applicable L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, each L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and no L/C Issuer shall be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. The applicable L/C Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (“SWIFT”) message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.

 

(g) Applicability of ISP and UCP; Limitation of Liability. Unless otherwise expressly agreed by the applicable L/C Issuer and the Borrower when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the UCP shall apply to each commercial Letter of Credit. Notwithstanding the foregoing, no L/C Issuer shall be responsible to the Borrower or any other Permitted L/C Party for, and no L/C Issuer’s rights and remedies against the Borrower or any other Permitted L/C Party shall be impaired by, any action or inaction of such L/C Issuer required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including any Requirement of Law or any order of a jurisdiction where the applicable L/C Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.

 

77

 

 

(h) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the account of each Revolving Credit Lender (subject to Section 2.16) in accordance with its Applicable Percentage, in Dollars, a Letter of Credit fee (the “Letter of Credit Fee”) (i) for each commercial Letter of Credit equal to the Applicable Rate for commercial Letters of Credit times the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit, and (ii) for each standby Letter of Credit equal to the Applicable Rate for such type (Financial Letter of Credit or Performance Letter of Credit) of such Letter of Credit times the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit. For purposes of computing the Dollar Equivalent of the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.08. Letter of Credit Fees shall be (i) due and payable on the tenth Business Day after the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Rate during any quarter, the Dollar Equivalent of the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.

 

(i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The Borrower shall pay directly to the applicable L/C Issuer for its own account, in Dollars, a fronting fee (i) with respect to each commercial Letter of Credit, at a rate separately agreed to between the Borrower and such L/C Issuer, computed on the Dollar Equivalent of the amount of such Letter of Credit, and payable upon the issuance thereof, (ii) with respect to any amendment of a commercial Letter of Credit increasing the amount of such Letter of Credit, at a rate separately agreed between the Borrower and such L/C Issuer, computed on the Dollar Equivalent of the amount of such increase, and payable upon the effectiveness of such amendment, and (iii) with respect to each standby Letter of Credit, at the rate per annum specified in the applicable Fee Letter or otherwise agreed between such L/C Issuer and the Borrower, computed on the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such fronting fee with respect to standby Letters of Credit shall be due and payable on the tenth Business Day after the last Business Day of each March, June, September and December in respect of the then-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. Such fronting fee with respect to commercial Letters of Credit shall be due and payable as provided in subparts (i) and (ii) above. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.08. In addition, the Borrower shall pay directly to the applicable L/C Issuer for its own account, in Dollars, the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

 

78

 

 

(j) Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.

 

(k) Letters of Credit Issued for Permitted L/C Parties. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, is for the account of, or the applicant therefor is, a Permitted L/C Party other than the Borrower, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account, or upon the application, of Permitted L/C Parties other than the Borrower inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Permitted L/C Parties.

 

(l) Additional L/C Issuers. In addition to Bank of America and each L/C Issuer listed on the signature pages hereto as an “L/C Issuer,” the Borrower may from time to time, with notice to the Lenders and the consent of the Administrative Agent and the applicable Lender being so appointed, appoint additional Lenders to be L/C Issuers hereunder, provided that the total number of L/C Issuers at any time shall not exceed six Lenders (or such larger number of additional Lenders as the Administrative Agent may agree to permit from time to time). Upon the appointment of a Lender as an L/C Issuer hereunder such Person shall become vested with all of the rights, powers, privileges and duties of an L/C Issuer hereunder.

 

(m) Removal of L/C Issuers. The Borrower may at any time remove Bank of America or any L/C Issuer that is appointed pursuant to subpart (l) above, if either such Person is at such time a Defaulting Lender or such Person consents to such removal; provided that (i) such removal shall be made upon not less than 30 days’ prior written notice to such L/C Issuer and the Administrative Agent (or such shorter time as such L/C Issuer shall agree) and (ii) such removed L/C Issuer shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect to all Letters of Credit issued by such L/C Issuer and outstanding as of the effective date of its removal as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Revolving Credit Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). Without limiting the foregoing, upon the removal of a Lender as an L/C Issuer hereunder, the Borrower may, or at the request of such removed L/C Issuer the Borrower shall use commercially reasonable efforts to, arrange for one or more of the other L/C Issuers to issue Letters of Credit hereunder in substitution for the Letters of Credit, if any, issued by such removed L/C Issuer and outstanding at the time of such removal, or make other arrangements satisfactory to the removed L/C Issuer to effectively cause another L/C Issuer to assume the obligations of the removed L/C Issuer with respect to any such Letters of Credit.

 

79

 

 

(n) Reporting of Letter of Credit Information and L/C Issuer Sublimit. At any time that there is more than one L/C Issuer, then on (i) the last Business Day of each calendar month, and (ii) each date that an L/C Credit Extension occurs with respect to any Letter of Credit, each L/C Issuer (or, in the case of part (ii), the applicable L/C Issuer) shall deliver to the Administrative Agent a report setting forth in form and detail reasonably satisfactory to the Administrative Agent information with respect to each Letter of Credit issued by such L/C Issuer that is outstanding hereunder, including any auto-renewal or termination of auto-renewal provisions in such Letter of Credit. In addition, each L/C Issuer shall provide notice to the Administrative Agent of its L/C Issuer Sublimit, or any change thereto, promptly upon it becoming an L/C Issuer or making any change to its L/C Issuer Sublimit. No failure on the part of any L/C Issuer to provide such information pursuant to this Section 2.03(n) shall limit the obligation of the Borrower or any Lender hereunder with respect to its reimbursement and participation obligations, respectively, pursuant to this Section 2.03.

 

(o) Cash Collateralized Letters of Credit. If the Borrower has fully Cash Collateralized the applicable L/C Issuer with respect to any Extended Letter of Credit issued by such L/C Issuer in accordance with Section 6.26 and the Borrower and the applicable L/C Issuer have made arrangements between them with respect to the pricing and fees associated therewith (each such Extended Letter of Credit a “Cash Collateralized Letter of Credit”), then on the day that is 95 days (or such shorter period of time permitted by such L/C Issuer) after the date of notice to the Administrative Agent thereof by the applicable L/C Issuer (so long as such Cash Collateral has remained in place for the entirety of such 95-day (or applicable shorter) period), and for so long as such Cash Collateral remains in place (i) such Cash Collateralized Letter of Credit shall cease to be a “Letter of Credit” hereunder, (ii) such Cash Collateralized Letter of Credit shall not constitute utilization of the Revolving Credit Facility and (ii) [reserved], (iii) no Lender shall have any further obligation to fund participations, L/C Borrowings or Revolving Credit Loans to reimburse any drawing under any such Cash Collateralized Letter of Credit, (iv) no Letter of Credit Fee shall be due or payable to the Lenders, or any of them, hereunder with respect to such Cash Collateralized Letter of Credit, and (v) any fronting fee, issuance fee or other fee with respect to such Cash Collateralized Letter of Credit shall be as agreed separately between the Borrower and such L/C Issuer.

 

80

 

 

Swing Line Loans.

 

(a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing Line Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, may in its sole discretion make loans in Dollars (each such loan, a “Swing Line Loan”) to the Borrower from time to time on any Business Day during the Availability Period with respect to the Revolving Credit Facility in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Revolving Credit Commitment; provided that after giving effect to any Swing Line Loan, (i) the Total Revolving Outstandings shall not exceed the Revolving Credit Facility at such time and (ii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Commitment; provided further that the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Swing Line Loan.

 

(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by (A) telephone or (B) by a Swing Line Loan Notice; provided that any telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a Swing Line Loan Notice. Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower.

 

81

 

 

(c) Refinancing of Swing Line Loans.

 

(i) The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Revolving Credit Lender make a Base Rate Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Revolving Credit Commitment and the conditions set forth in Section 4.03. The Swing Line Lender shall furnish the Borrower with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent. Each Revolving Credit Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Committed Loan Notice available to the Administrative Agent in Same Day Funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the account of the Swing Line Lender at the Administrative Agent’s Office for Dollar-denominated payments not later than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.

 

(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving Credit Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.

 

(iii) If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Loan included in the relevant Revolving Credit Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.

 

82

 

 

(iv) Each Lender’s obligation to make Revolving Credit Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; providedhowever, that each Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.03. No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.

 

(d) Repayment of Participations.

 

(i) At any time after any Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by the Swing Line Lender.

 

(ii) If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

 

(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Revolving Credit Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of the Swing Line Lender.

 

(f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.

 

83

 

 

Prepayments.

 

(a) Optional.

 

(i) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Loans in whole or in part without premium or penalty (except as provided in clause (iv) below); provided that (i) such notice must be in a form acceptable to the Administrative Agent and be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans, (B) on the date of prepayment of Base Rate Loans, (C) five Business Days prior to any date of prepayment of Fixed Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall (x) specify the date and amount of such prepayment and the Facility and Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans and (y) in the case of a prepayment that is an Additional Term Loan Prepayment, such notice shall be accompanied by (I) a certificate of a Responsible Officer to the Administrative Agent, countersigned by each of the Term Loan Lenders, certifying that the requirements for such Additional Term Loan Prepayment have been satisfied and the amount of any Additional Cashless Term Loan Prepayment and (II) any other tax documentation reasonably requested by the Administrative Agent from the Borrower or any applicable Term Loan Lender. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Applicable Percentage in respect of the Aggregate Revolving Credit Commitment or Aggregate Term Loan Commitment, as applicable). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05 (including the capitalization of any interest to be paid-in-kind). Any Additional Term Loan Prepayment of a Fixed Rate Loan shall be accompanied by all accrued interest on the amount prepaid (including the capitalization of any interest to be paid-in-kind) to the extent that such interest is permitted to be paid under Section 11.01. Subject to Section 2.16, each such prepayment shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of each of the relevant Facilities; provided that, if a joint notice signed by each Term Loan Lender in form reasonably satisfactory to the Administrative Agent is delivered to the Administrative Agent at least one Business Day prior to the date of an Additional Term Loan Prepayment, such prepayment shall be applied among the Term Loan Lenders as directed by such joint notice.

 

84

 

 

(ii) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.

 

(iii) Except as set forth in clause (d) of Section 11.01 and notwithstanding anything to the contrary contained herein, the Borrower shall not be permitted to prepay the Term Loan Facility (pursuant to Section 2.05(a)(i) or otherwise) until the occurrence of the Revolving Credit Facility Termination Date, provided that the Administrative Agent, in its sole discretion, may permit a prepayment in full of the Term Loan Facility on the Revolving Credit Facility Termination Date, provided further that the Administrative Agent will not release funds paid with respect to the Term Loan Facility to any Term Loan Lender until the Administrative Agent has deemed, in its reasonable discretion, that the Revolving Credit Facility Termination Date has occurred.

 

(iv) The Administrative Agent shall apply an Additional Cashless Term Loan Prepayment by reducing the principal of the outstanding Term Loans to be prepaid as set forth in the relevant notice described in clause (i) of this Section 2.05(a).

 

(b) Mandatory.

 

(i) In the event, and on each occasion, that any Net Cash Proceeds are received by or on behalf of the Borrower or any of its Subsidiaries in respect of any Prepayment Event, the Borrower shall, within five Business Days after such Net Cash Proceeds are received (or, in the case of a Prepayment Event described in clauses (b) or (c) of the definition of the term “Prepayment Event”, on or before the next succeeding Business Day following the occurrence of such Prepayment Event, or, in the case of a Prepayment Event on account of Recovery Events, on or before the later of (x) five Business Days after such Net Cash Proceeds are received and (y) the establishment of the Recovery Event Proceeds Account), prepay the Revolving Credit Facility in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds (such mandatory prepayments to be applied as set forth in clause (ii) below).

 

(ii) Each prepayment of the Revolving Credit Facility pursuant to Section 2.05(b)(i) and (vi) shall be applied to the Revolving Credit Facility (without permanent reduction of the Commitments except as provided in Section 2.06(a)(ii)) in the manner set forth in clause (iv) or clause (vii), as applicable, of this Section 2.05(b).

 

85

 

 

(iii) If (A) the Administrative Agent notifies the Borrower at any time during the Relief Period that the aggregate outstanding principal amount of Revolving Credit Loans exceeds the Relief Period Sublimit in effect at such time, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Credit Loans in an aggregate amount sufficient to reduce such outstanding principal amount of Revolving Credit Loans as of such date of payment to an amount not to exceed the Relief Period Sublimit then in effect, or (B) the Administrative Agent notifies the Borrower at any time that the Total Revolving Outstandings at such time exceed the Aggregate Revolving Credit Commitment in effect at such time, then, within two Business Days after receipt of such notice, the Borrower shall prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed the Aggregate Revolving Credit Commitment then in effect; providedhowever, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iii) unless, after the prepayment in full of the Revolving Credit Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitment then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.

 

(iv) Except as otherwise provided in Section 2.16,2.16 or clause (vii) below, prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b)first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations in full; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party or any Defaulting Lender that has provided Cash Collateral) to reimburse the applicable L/C Issuer or the applicable Lenders, as applicable.

 

86

 

 

(v) Notwithstanding anything to the contrary contained in any other provision of this Section 2.05(b), to the extent any mandatory prepayment required pursuant to Section 2.05(b)(i) (without giving effect to this Section 2.05(b)(v)) is attributable to a Prepayment Event by a Foreign Subsidiary of the Borrower or an Excluded Domestic Subsidiary, no such prepayment (or a portion thereof) shall be required to be made if such prepayment (or portion thereof, or dividend or distribution to facilitate such prepayment) shall, at the time it is required to be made, be prohibited by applicable Requirement of Law (including by reason of financial assistance, corporate benefit, restrictions on upstreaming or transfer of cash intra group and the fiduciary and statutory duties of the directors of relevant Subsidiaries), provided that the Borrower and its Subsidiaries shall make commercially reasonable efforts with respect to such Requirement of Law to permit such prepayment (or portion thereof, or dividend or distribution to facilitate such prepayment) in accordance therewith (it being understood that such efforts shall not require (x) any expenditure in excess of a nominal amount of funds or (y) modifications to the organizational or tax structure of the Borrower and its Subsidiaries to permit such prepayment (or portion thereof, or dividend or distribution to facilitate such prepayment)). Notwithstanding anything in the preceding sentence to the contrary, in the event the limitations or restrictions described therein cease to apply to any prepayment (or portion thereof, or dividend or distribution to facilitate such prepayment) required under Section 2.05(b)(i), the Borrower shall make such prepayment in an amount equal to the lesser of (x) the amount of such prepayment previously required to have been made without having given effect to such limitations or restrictions and (y) the amount of cash and Cash Equivalents on hand at such time, in each case, less the amount by which the Net Cash Proceeds from the Prepayment Event were previously used for the permanent repayment of Indebtedness (including any reductions in commitments related thereto).

 

(vi) In the event, and on each occasion, at the close of any Business Day (the “Test Date”), the aggregate unrestricted cash and Cash Equivalents (a) of the Borrower and its Subsidiaries exceeds $45,000,000 or (b) of the Non-Loan Parties exceeds $40,000,000 (a “Trigger Event”), in either case for each of the preceding three Business Days, the Borrower shall prepay the Revolving Credit Loans in an aggregate amount equal to 100% of the amount of such excess such that after giving effect to such repayment, the Borrower and its Subsidiaries and/or the Non-Loan Parties, as applicable, do not hold unrestricted cash and Cash Equivalents in amounts in excess of the above (such mandatory prepayments to be applied as set forth in clause (ii) above) on or prior to (A) the first Business Day after the Test Date or (B) the third Business Day after the Test Date solely with respect to any cash held in a deposit account owned by a Foreign Subsidiary of the Borrower required to be used for such prepayment (each of such dates, a “Repayment Deadline”).

 

87

 

 

(vii) Except as otherwise provided in Section 2.16, prepayments of the Revolving Credit Facility on account of Recovery Events made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings, second, 50% of the remainder of such prepayment shall be used to fund the Recovery Event Proceeds Account until such funds equal 105% of the Revolving Credit Facility (less Cash Collateral actually provided to L/C Issuers as required pursuant to Section 2.15(a) or Section 6.26), and third, shall be applied ratably to the outstanding Revolving Credit Loans; and, in the case of prepayments of the Revolving Credit Facility on account of Recovery Events required pursuant to clause (i) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings outstanding at such time, the funding requirement for the Recovery Event Proceeds Account and Revolving Credit Loans outstanding at such time may be retained by the Borrower for use in the ordinary course of its business. If at any time the funds in the Recovery Event Proceeds Account exceeds 105% of the Revolving Credit Facility (less Cash Collateral actually provided to L/C Issuers as required pursuant to Section 2.15(a) or Section 6.26), the Administrative Agent, at the written request of the Borrower to the Administrative Agent, shall cause such excess to be returned to the Borrower for use in the ordinary course of its business within 5 Business Days either by (i) crediting the account (other than the Recovery Event Proceeds Account) of the Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower. With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in Section 4.03 cannot be satisfied or for any other reason, if the applicable Letter of Credit has not been Cash Collateralized, the funds held in the Recovery Event Proceeds Account shall be applied to outstanding L/C Borrowings or L/C Advances on account of such Letter of Credit (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the applicable Lenders, as applicable, and the Borrower hereby authorizes the Administrative Agent to apply funds therein in such manner.

 

Termination or Reduction of Commitments.

 

(a) Reductions.

 

(i) Optional. The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Revolving Credit Commitment or Aggregate Term Loan Commitment, or from time to time permanently reduce the Aggregate Revolving Credit Commitment or Aggregate Term Loan Commitment; provided that (a) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five Business Days prior to the date of termination or reduction, (b) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof, (c) the Borrower shall not terminate or reduce the Aggregate Revolving Credit Commitment if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Outstandings would exceed the Aggregate Revolving Credit Commitment, (d) if, after giving effect to any reduction of the Revolving Credit Commitment, the Alternative Currency Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate Revolving Credit Commitment, such Sublimit shall be automatically reduced by the amount of such excess, and (e) the Borrower shall have no right to terminate or reduce any Lender’s Term Loan Commitment prior to the Revolving Credit Facility Termination Date and (f) the Borrower shall have no right to terminate or reduce the Tranche A-5 Term Loan Commitment without the written consent of the Tranche A-5 Term Loan Lender. Except as provided in the preceding sentence, the amount of any such Revolving Credit Commitment reduction shall not be applied to the Alternative Currency Sublimit or the Swing Line Sublimit unless otherwise specified by the Borrower.

 

88

 

 

(ii) Mandatory. In the event, and on each occasion, that during the Relief Period a Commitment Reduction Event occurs (after giving effect to any reinvestment period, and regardless of whether the Borrower is permitted to retain any or all of such Net Cash Proceeds thereof pursuant to the application of Section 2.05(b)(iv)), the Borrower shall, on or prior to the Business Day (x) the related prepayment is made (or, if not made, is required to be made) with respect to a Commitment Reduction Event described in clause (a) of the definition of “Commitment Reduction Amount” or (y) any other Commitment Reduction Event occurs, give notice thereof, and of the Commitment Reduction Amount with respect thereto, to the Administrative Agent. Promptly (and in any event not later than the next succeeding Business Day) after receiving such notice, the Administrative Agent shall reduce the Aggregate Revolving Credit Commitment by an amount equal to such Commitment Reduction Amount. In connection with each such reduction, the Borrower shall be required to prepay Revolving Credit Loans and, if the Revolving Credit Loans are paid in full, Cash Collateralize Letters of Credit to the extent that any such reduction of the Aggregate Revolving Credit Commitment would result in the Total Revolving Outstandings exceeding the Aggregate Revolving Credit Commitment (as so reduced), including any costs or expenses pursuant to Section 3.05. If, after giving effect to any such reduction of the Aggregate Revolving Credit Commitment, the Alternative Currency Sublimit, the Relief Period Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate Revolving Credit Commitment, such sublimit shall be automatically reduced by the amount of such excess. Except as provided in the preceding sentence, the amount of any such Aggregate Revolving Credit Commitment reduction shall not be applied to the Alternative Currency Sublimit, the Relief Period Sublimit or the Swing Line Sublimit unless otherwise specified by the Borrower.

 

(b) Application of Commitment Reductions; Payment of Fees.

 

(i) The Administrative Agent will promptly notify the Lenders of any notice of (or mandatory) termination or reduction of the Aggregate Revolving Credit Commitment. Any reduction of the Aggregate Revolving Credit Commitment shall be applied to the Revolving Credit Commitment of each Lender according to its Applicable Percentage. All fees in respect of the Revolving Credit Facility accrued until the effective date of any termination of the Aggregate Revolving Credit Commitment shall be paid on the effective date of such termination.

 

(ii) Notwithstanding anything to the contrary contained herein, a notice of termination of the Aggregate Revolving Credit Commitments or the Aggregate Term Loan Commitments and the prepayment in full of the Loans in connection therewith may state that such notice is conditioned upon the effectiveness of other credit facilities, and if any notice so states it may be revoked by the Borrower by notice to the Administrative Agent on or prior to the date specified for the termination of the Aggregate Revolving Credit Commitments or Aggregate Term Loan Commitments, as applicable, and such prepayment that the refinancing condition has not been met and the termination and prepayment is to be revoked, provided that the Borrower will continue to be responsible for any costs or expenses pursuant to Section 3.05 in connection with the failure to prepay Loans resulting from such revocation.

 

89

 

 

Repayment of Loans.

 

(a) Revolving Credit Loans. The Borrower shall repay to the Revolving Credit Lenders on the Revolving Credit Facility Maturity Date the aggregate principal amount of all Revolving Credit Loans made to the Borrower outstanding on such date.

 

(b) Swing Line Loans. The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the date 10 Business Days after such Loan is made and (ii) the Revolving Credit Facility Maturity Date.

 

(c) Term Loans. The Borrower shall repay to the Lenders on the Term Loan Facility Maturity Date the aggregate principal amount of all Term Loans made to the Borrower capitalized as principal outstanding on such date, subject to any subordination terms set forth herein.

 

Interest.

 

(a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate; (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for Base Rate Loans; and (iv) on and after the Amendment No. 16 Effective Date, each Term Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Fixed Rate.

 

(b) (i) If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Requirements of Law.

 

(i) If any amount (other than principal of any Loan) payable by the Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Requirements of Law.

 

90

 

 

(ii) Upon the request of the Required Lenders, while any Event of Default exists (other than as set forth in clauses 2.08(b)(i) and (b)(ii) above), the Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Requirements of Law.

 

(iii) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon the demand of the Administrative Agent.

 

(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

 

(d) Term Loan Interest Payments.

 

(i) During the period (A) commencing after the occurrence of the Initial Tranche A Term Loan Funding and ending the day immediately prior to the Amendment No. 16 Effective Date, a portion of the interest payable with respect to the Term Loans equal to (x) 5.50% per annum, with respect to Eurocurrency Rate Loans, and (y) 4.50% per annum, with respect to Base Rate Loans, on each Interest Payment Date occurring prior to the Amendment No. 16 Effective Date (and the Interest Payment Date occurring on June 28, 2019 with respect to any accrued interest outstanding as of the Amendment No. 16 Effective Date) shall be paid in cash on the applicable Interest Payment Date, with the remainder of the interest due on such Interest Payment Date to be paid-in-kind (which payment-in-kind shall be capitalized on the applicable Interest Payment Date and such capitalized amount shall be added to the then outstanding principal amount of the applicable Term Loans and constitute outstanding principal for all purposes hereof) and (B) commencing on the Amendment No. 16 Effective Date, a portion of interest payable with respect to the Term Loans equal to 7.50% per annum on each Interest Payment Date occurring on or after the Amendment No. 16 Effective Date shall be paid in cash on the applicable Interest Payment Date, with the remainder of the interest due on such Interest Payment Date to be paid-in-kind (which payment-in-kind shall be capitalized on the applicable Interest Payment Date and such capitalized amount shall be added to the then outstanding principal amount of the applicable Term Loans and constitute outstanding principal for all purposes hereof), provided that, commencing on the Business Day immediately after the delivery of a Fixed Rate Certificate to the Administrative Agent, all such interest shall be paid in cash.

 

(ii) Upon and during the continuance of an Event of Default and until the occurrence of the Revolving Credit Facility Termination Date, all interest with respect to the Term Loans, including such interest at the Default Rate, shall not be payable, provided that such interest shall continue to accrue.

 

91

 

 

(iii) The Borrower shall deliver to the Administrative Agent a Fixed Rate Certificate on the date of the consummation of a Qualified Rights Offering. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any Fixed Rate Certificate or Additional Term Loan Prepayment Extension Certificate. The Administrative Agent shall not be responsible for or have any duty to request any Fixed Rate Certificate or Additional Term Loan Prepayment Extension Certificate or ascertain or inquire into any Fixed Rate Certificate or Additional Term Loan Prepayment Extension Certificate or the contents of any Fixed Rate Certificate or Additional Term Loan Prepayment Extension Certificate.

 

Fees. In addition to certain fees described in subsections (h) and (i) of Section 2.03:

 

(a) Commitment Fee.

 

(i) The Borrower shall pay to the Administrative Agent for the account of each Revolving Credit Lender (subject to Section 2.16(a)(iii) with respect to Defaulting Lenders) in accordance with its Applicable Percentage, a commitment fee in Dollars equal to the Applicable Rate times the actual daily amount by which the Aggregate Revolving Credit Commitment exceeds the sum of (i) the Outstanding Amount of Revolving Credit Loans and (ii) the Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section 2.16. The commitment fee with respect to the Revolving Credit Facility shall accrue at all times during the Availability Period with respect to the Revolving Credit Facility, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the tenth Business Day after the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period for the Revolving Credit Facility.

 

(ii) The commitment fees set forth in clause (i) above shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by such Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.

 

(b) Other Fees.

 

(i) The Borrower shall pay to the Arrangers and the Administrative Agent for their own respective accounts, in Dollars, fees in the amounts and at the times specified in the Fee Letters. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

 

(ii) The Borrower shall pay to the Lenders, in Dollars, such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

 

92

 

 

(iii) The Borrower shall pay to the Administrative Agent for the account of the Revolving Credit Lenders in accordance with its Applicable Percentage, in Dollars, an annual facility fee of $1,500,000. Such fee shall be payable the first Business Day of each calendar year, shall be fully earned when paid and shall not be refundable for any reason whatsoever, provided that the facility fee for the calendar year in which the Revolving Credit Facility Maturity Date is set to occur shall be prorated in accordance with Section 2.10 (Computation of Interest and Fees) for the actual number of days to elapse until such Maturity Date.

 

(iv) The Borrower shall pay to the Administrative Agent for the account of each Revolving Credit Lender in accordance with its Applicable Percentage, in Dollars, a deferred facility fee equal to a percentage per annum of 2.50% oftimes the portion of theactual daily amount Revolving Credit Facility held by such Lender as of the date of payment of such fee (the “Deferred Facility Fee”), provided that such percentage shall be decreased by 0.50% upon the occurrence of each Deferred Facility Fee Decrease Event, up to an aggregate decrease of 1.50%. Commencing upon the occurrence of the Recapitalization Transaction, the Deferred Facility Fee shall accrue at all times during the Availability Period with respect to the Revolving Credit Facilityuntil the Amendment No. 20 Effective Date, including at any such time during which one or more of the conditions in Article IV is not met, and shall be fully earned when accrued, shall not be refundable for any reason whatsoever and shall be payable on the last day of the Availability Period with respect to the Revolving Credit Facility. For the avoidance of doubt, the Deferred Facility Fee set forth in this clause (iv) shall be in addition to the facility fee set forth in clause (iii) above.

 

(v) The Borrower agrees to pay original issue discount to the Administrative Agent for the account of (A) each Tranche A-1 Term Loan Lender on the date of each Tranche A-1 Term Loan Borrowing in an aggregate amount equal to 10.0% of the gross cash proceeds of the Tranche A-1 Term Loan received by the Borrower on the date of such Term Loan Borrowing; and (B) each Tranche A-3 Term Loan Lender on the date of the Tranche A-3 Term Loan Borrowing in an aggregate amount equal to 3.2% of the gross cash proceeds of the Tranche A-3 Term Loan received by the Borrower on the date of such Term Loan Borrowing (“OID”).

 

(vi) The Borrower shall pay to the Administrative Agent for the account of each Revolving Credit Lender in accordance with its Applicable Percentage, in Dollars, deferred ticking fees equal to a percentage of 1.00% of the portion of the Revolving Credit Facility held by such Lender as of the date of payment of such fees (the “Deferred Ticking Fees”). Until the occurrence of the Revolving Credit Facility TerminationAmendment No. 20 Effective Date, including at any time during which one or more of the conditions in Article IV is not met, the Deferred Ticking Fees shall be fully earned on December 15, 2019 and on the 15th day of each succeeding calendar month thereafter, shall not be refundable for any reason whatsoever and shall be payable on the earlier of (A) MarchMay 15, 2020 and (B) the last day of the Availability Period with respect to the Revolving Credit Facility. For the avoidance of doubt, the Deferred Ticking Fees set forth in this clause (vi) shall be in addition to the facility fee and deferred facility fee set forth in clauses (iii) and (iv) above.

 

93

 

 

Computation of Interest and Fees.

 

(a) All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Eurocurrency Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

 

(b) [reserved].

 

Evidence of Debt.

 

(a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Promptly after the request of any Lender to the Borrower made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans to the Borrower in addition to such accounts or records. Each Lender may attach schedules to a Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.

 

(b) In addition to the accounts and records referred to in subsection (a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.

 

94

 

 

Payments Generally; Administrative Agent’s Clawback.

 

(a) General. All payments to be made by the Borrower shall be made free and clear and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date specified herein, except to the extent any such payment is to be paid-in-kind pursuant to Section 2.08(d). Without limiting the generality of the foregoing, the Administrative Agent may require that any payments due under this Agreement be made in the United States. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent or the applicable L/C Issuer after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.

 

(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Revolving Credit Lender prior to the proposed date of any Revolving Credit Borrowing of Eurocurrency Rate Loans (or, in the case of any Revolving Credit Borrowing of Base Rate Loans, prior to (A) 12:00 noon on the date of such Revolving Credit Borrowing if such Revolving Credit Borrowing is to be made on a Business Day other than the date the Administrative Agent received the applicable Committed Loan Notice with respect to such Revolving Credit Borrowing and (B) 2:00 p.m. on the date of such Revolving Credit Borrowing if such Revolving Credit Borrowing is to be made on the same Business Day as the date the Administrative Agent received the applicable Committed Loan Notice with respect to such Revolving Credit Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Revolving Credit Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Revolving Credit Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Revolving Credit Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the Overnight Rate, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

 

95

 

 

(ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Revolving Credit Lenders or the applicable L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable L/C Issuer, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Revolving Credit Lenders or the applicable L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such L/C Issuer, in Same Day Funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the Overnight Rate.

 

A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.

 

(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Loan (including funds made available to satisfy the Term Loan Prefunding Requirement) to be made by such Lender to the Borrower as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

 

(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Term Loans and Revolving Credit Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.04(c).

 

96

 

 

(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

 

(f) Insufficient Funds. Subject to the application of Section 8.03 by its terms, if at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, toward payment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and L/C Borrowings then due to such parties; provided that no payments may be made to the Term Loan Lenders pursuant to this clause (f) until the occurrence of the Revolving Credit Facility Termination Date.

 

Sharing of Payments by Lenders. Subject to the turnover provisions set forth in Section 11.02, if any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Revolving Credit Loans or Term Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Revolving Credit Loans, Term Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Revolving Credit Loans or Term Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit Loans, Term Loans and other amounts owing them, provided that:

 

(i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

 

(ii) the provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) the application of Cash Collateral provided for in Section 2.15, or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than an assignment to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this Section shall apply).

 

97

 

 

The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.

 

Increase in Revolving Credit Commitments.

 

(a) Request for Increase. The Borrower may, from time to time (other than during the Relief Period, during which time, notwithstanding anything to the contrary in this Agreement, no increase pursuant to this Section 2.14 may be requested or consummated), request by written notice to the Administrative Agent one or more increases in the Revolving Credit Facility (each, a “Revolving Credit Increase”); provided that (i) the principal amount for all such Revolving Credit Increases, in the aggregate, since the Closing Date (including the then requested Revolving Credit Increase) shall not exceed the sum (with utilization being determined by the Borrower subject to the limits provided herein) of (x) $200,000,000 plus (y) a principal amount such that, after giving effect to such proposed Revolving Credit Increase (measured assuming the entire principal amount of any proposed Revolving Credit Increase being incurred pursuant to this clause (y) is fully drawn), any repayment of other Indebtedness in connection therewith and any other appropriate pro forma adjustment events, the Senior Leverage Ratio is not greater than 2.00 to 1.00; (ii) any such request shall be in a minimum amount of $10,000,000 (or a lesser amount in the event such amount represents all remaining availability under this Section) and the Borrower may make a maximum of five such requests (excluding any requests that are not consummated); (iii) no Revolving Credit Increase shall increase the Swing Line Sublimit without the consent of the Swing Line Lender; (iv) any Revolving Credit Increase may, at the request of the Borrower, be available for the issuance of Letters of Credit within the limits of the L/C Issuer Sublimits; and (v) each Revolving Credit Increase shall constitute Obligations hereunder and shall be guaranteed and secured pursuant to the Guaranty, Collateral Agreement and the other Security Instruments on a pari passu basis with the other Obligations hereunder.

 

(b) Process for Increase. Revolving Credit Increases may be (but shall not be required to be) provided by any existing Lender, in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Borrower and the Administrative Agent, or by any other Person that qualifies as an Eligible Assignee (each such other Person, an “Additional Lender”) pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent; provided that (i) the Administrative Agent shall have consented (in each case, such consent not to be unreasonably withheld, delayed or conditioned) to each proposed Additional Lender providing such Revolving Credit Increase to the extent the Administrative Agent would be required to consent to an assignment to such Additional Lender pursuant to Section 10.06(b)(iii) and (ii) each L/C Issuer and the Swing Line Lender shall have consented to each such Lender or proposed Additional Lender providing such Revolving Credit Increase if such consent by the L/C Issuers or the Swing Line Lender, as the case may be, would be required under Section 10.06(b)(iii) for an assignment of Revolving Credit Loans or Commitments to such Lender or proposed Additional Lender; provided further that the Borrower shall not be required to offer or accept commitments from existing Lenders for any Revolving Credit Increase. No Lender shall have any obligation to increase its Revolving Credit Commitment pursuant to a request for a Revolving Credit Increase, and no consent of any Lender, other than the Lenders agreeing to provide any portion of a Revolving Credit Increase, shall be required to effectuate such Revolving Credit Increase.

 

98

 

 

(c) Effective Date and Allocations. The Administrative Agent and the Borrower shall determine the effective date of any Revolving Credit Increase (the “Increase Effective Date”). The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such Revolving Credit Increase and the Increase Effective Date.

 

(d) Conditions.

 

(i) As a condition precedent to each Revolving Credit Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower and, if reasonably determined by the Administrative Agent to be necessary or desirable under applicable Requirements of Law with respect to the Loan Documents of a Guarantor, of each such Guarantor, dated as of the Increase Effective Date, signed by a Responsible Officer of the Borrower or each such Guarantor, as applicable, and (A) certifying and attaching the resolutions adopted by the Borrower or such Guarantor approving or consenting to such Revolving Credit Increase (which, with respect to any such Loan Party, may, if applicable, be the resolutions entered into by such Loan Party in connection with the incurrence of the Obligations on the Closing Date) and (B) certifying that (1) both before and immediately after giving effect to such Revolving Credit Increase, as of the Increase Effective Date no Default or Event of Default shall exist and be continuing, (2) immediately after giving effect to such Revolving Credit Increase, as of the Increase Effective Date the Borrower shall be in pro forma compliance (after giving effect to the incurrence of such Revolving Credit Increase and the use of proceeds thereof) with each of the financial covenants contained in Section 7.16 and (3) the representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date, and except that for purposes of this clause (i)(B)(3), the representations and warranties contained in Sections 5.04(a) and (b) shall be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b), respectively. In addition, as a condition precedent to each Revolving Credit Increase, the Borrower shall deliver or cause to be delivered such other officer’s certificates, Organization Documents and legal opinions of the type delivered on the Closing Date as are reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent.

 

99

 

 

(ii) Each Revolving Credit Increase shall have the same terms as the outstanding Revolving Credit Loans and be part of the existing Revolving Credit Facility hereunder. Upon each Revolving Credit Increase (x) each Lender having a Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Increase (each, a “Revolving Credit Increase Lender”) in respect of such increase, and each such Revolving Credit Increase Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in (1) Letters of Credit and (2) Swing Line Loans, will, in each case, equal each Lender’s Applicable Percentage (after giving effect to such increase in the Revolving Credit Facility) and (y) if, on the date of such increase there are any Revolving Credit Loans outstanding, the Lenders shall make such payments among themselves as the Administrative Agent may reasonably request to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any revised Applicable Percentages arising from such Revolving Credit Increase, and the Borrower shall pay to the applicable Lenders any amounts required to be paid pursuant to Section 3.05 in connection with such payments among the Lenders as if such payments were effected by prepayments of Revolving Credit Loans.

 

(e) Conflicting Provisions. This Section shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

 

2.14A Incremental Term Loans.

 

(a) Request for Increase. Subject to the consent of the Administrative Agent in its sole discretion, the Borrower may, from time to time, request by written notice to the Administrative Agent one or more increases to the Term Loan Facility (each, a “Term Loan Increase”); provided that (i) the principal amount of the Term Loan Increase shall not exceed $15,000,000; and (ii) any such request shall be in a minimum amount of $5,000,000 (or a lesser amount in the event such amount represents all remaining availability under this Section) and the Borrower may make a maximum of three such requests (excluding any requests that are not consummated); and (iii) each Term Loan Increase shall constitute Obligations hereunder and shall be guaranteed and secured pursuant to the Guaranty, Collateral Agreement and the other Security Instruments on a pari passu basis with the other Obligations hereunder, subject to any subordination terms set forth herein. It is expressly understood that the Term Loan Increase has not been committed to by the Administrative Agent or any Term Loan Lender and the decision as to whether to agree to any such request may be made by each Term Loan Lender in its sole discretion.

 

100

 

 

(b) Process for Increase. Any Term Loan Increase may be provided by any Person that qualifies as an Eligible Assignee of Term Loans (each such other Person, an “Additional Term Lender”) pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent, which joinder agreement may effect amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.14A, including the creation of a new tranche of Term Loans; provided that the Administrative Agent shall have consented in its sole discretion to each proposed Additional Term Lender providing such Term Loan Increase. No consent of any Lender, other than the Lenders agreeing to provide any portion of a Term Loan Increase, shall be required to effectuate such Term Loan Increase.

 

(c) Effective Date and Allocations. The Administrative Agent and the Borrower shall determine the effective date of any Term Loan Increase (the “Term Loan Increase Effective Date”). The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such Term Loan Increase and the Term Loan Effective Date.

 

(d) Conditions.

 

(i) As a condition precedent to each Term Loan Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower and, if reasonably determined by the Administrative Agent to be necessary or desirable under applicable Requirements of Law with respect to the Loan Documents of a Guarantor, of each such Guarantor, dated as of the Term Loan Increase Effective Date, signed by a Responsible Officer of the Borrower or each such Guarantor, as applicable, and (A) certifying and attaching the resolutions adopted by the Borrower or such Guarantor approving or consenting to such Term Loan Increase (which, with respect to any such Loan Party, may, if applicable, be the resolutions entered into by such Loan Party in connection with the incurrence of the Obligations on the Closing Date) and (B) certifying that (1) both before and immediately after giving effect to such Term Loan Increase, as of the Term Loan Increase Effective Date no Default or Event of Default shall exist and be continuing and (2) the representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the Term Loan Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date, and except that for purposes of this clause (i)(B)(3), the representations and warranties contained in Sections 5.04(a) and (b) shall be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b), respectively. In addition, as a condition precedent to each Term Loan Increase, the Borrower shall deliver or cause to be delivered such other officer’s certificates, Organization Documents and legal opinions of the type delivered on the Closing Date as are reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent.

 

101

 

 

(ii) Each Term Loan Increase shall have the same terms as the outstanding Term Loan Loans and be part of the existing Term Loan Facility hereunder.

 

Cash Collateral.

 

(a) Certain Credit Support Events. If (i) as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, (ii) the Borrower shall be required to provide Cash Collateral pursuant to Section 8.02(c), or (iii) there shall exist a Defaulting Lender with a Revolving Credit Commitment, the Borrower shall immediately (in the case of clause (ii) above) or within one Business Day (in all other cases) (or such longer period of time permitted by the Administrative Agent and the applicable L/C Issuer) following any request by the Administrative Agent or the applicable L/C Issuer, provide Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (iii) above, after giving effect to Section 2.16(a)(iv) and any Cash Collateral provided by the Defaulting Lender). If at any time the Administrative Agent determines that any funds held as Cash Collateral pursuant to the preceding sentence are subject to any right or claim of any Person other than the Administrative Agent or that the total amount of such funds is less than the applicable Minimum Collateral Amount as required by the preceding sentence, the Borrower will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited as Cash Collateral, an amount equal to the excess of (x) such applicable Minimum Collateral Amount over (y) the total amount of funds, if any, then held as Cash Collateral that the Administrative Agent determines to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted under applicable Laws, to reimburse the applicable L/C Issuer.

 

102

 

 

(b) Grant of Security Interest. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing (unless otherwise agreed by the depositary) deposit accounts at the Administrative Agent or the relevant L/C Issuer, as applicable. To the extent provided by the Borrower, the Borrower, and to the extent provided by any Lender, such Lender, hereby grants to (and subjects to the control of) the relevant L/C Issuer or to the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the Revolving Credit Lenders (including the Swing Line Lender), as applicable, and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant to this Section 2.15, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.15(c). If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent or the applicable L/C Issuer as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower or the relevant Defaulting Lender will, promptly (but in any event within five Business Days) after demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency. The Borrower shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral.

 

(c) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.15 or Sections 2.032.042.052.16 or 8.02 in respect of Letters of Credit or Swing Line Loans shall be held and applied to the satisfaction of the specific L/C Obligations, Swing Line Loans, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.

 

(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 10.06(b)(vi))) or (ii) the Administrative Agent’s and the applicable L/C Issuer’s good faith determination that there exists excess Cash Collateral; provided that (x) Cash Collateral furnished by or on behalf of a Loan Party shall not be released during the continuance of a Default (and following application as provided in this Section 2.15 may be otherwise applied in accordance with Section 8.03), and (y) the Person providing Cash Collateral and the L/C Issuer or Swing Line Lender, as applicable, may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.

 

Defaulting Lenders.

 

(a) Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Requirements of Law:

 

(i) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders,”, “Required Term Lenders” and Section 10.01.

 

103

 

 

(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.08 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the L/C Issuer or Swing Line Lender hereunder; third, to Cash Collateralize the L/C Issuer’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.15fourth, as the Borrower may request (so long as no Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing (unless otherwise agreed by the depositary) deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the L/C Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.15sixth, to the payment of any amounts owing to the Lenders, the L/C Issuer or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.03 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.16(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.16(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

 

104

 

 

(iii) Certain Fees.

 

(A) No Defaulting Lender shall be entitled to receive any commitment fee or facility fee payable under Section 2.09(a) or Section 2.09(b)(iii) or (iv) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

 

(B) Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.15.

 

(C) With respect to any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (B) above, the Borrower shall (x) pay to each non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations that has been reallocated to such non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the applicable L/C Issuer the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such L/C Issuer’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.

 

(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in L/C Obligations and Swing Line Loans shall be reallocated among the non-Defaulting Lenders that are Revolving Credit Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving Credit Exposure of any non-Defaulting Lender to exceed such non-Defaulting Lender’s Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.

 

(v) Cash Collateral, Repayment of Swing Line Loans. If the reallocation described in clause (a)(iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under any applicable Requirement of Law, (x) first, prepay Swing Line Loans in an amount equal to the Swing Line Lenders’ Fronting Exposure and (y) second, Cash Collateralize the L/C Issuers’ Fronting Exposure in accordance with the procedures set forth in Section 2.15.

 

105

 

 

(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, Swing Line Lender and the L/C Issuer agree in writing that a Lender is no longer a Defaulting Lender (except that during the continuance of an Event of Default, the Borrower’s agreement shall not be required and the agreement of the Swing Line Lender and the L/C Issuer shall not be necessary with respect to a Term Loan Lender), the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.16(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and providedfurther, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

 

ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY

 

Taxes.

 

(a) L/C Issuer. For purposes of this Section 3.01, the term “Lender” includes any L/C Issuer and the term “Requirements of Law” includes FATCA.

 

(b) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.

 

(i) Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Requirements of Law. If any applicable Requirements of Law (as determined in the good faith discretion of the Administrative Agent) require the deduction or withholding of any Tax from any such payment by the Administrative Agent or a Loan Party, then the Administrative Agent or such Loan Party shall be entitled to make such deduction or withholding, upon the basis of the information and documentation to be delivered pursuant to subsection (f) below.

 

(ii) If any Loan Party or the Administrative Agent shall be required by the Code to withhold or deduct any Taxes, including both United States Federal backup withholding and withholding taxes, from any payment made hereunder or under any other Loan Document, then (A) the Administrative Agent shall withhold or make such deductions as are determined in the good faith discretion of the Administrative Agent to be required based upon the information and documentation it has received pursuant to subsection (f) below, (B) the Administrative Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction for Indemnified Taxes been made.

 

106

 

 

(iii) If any Loan Party or the Administrative Agent shall be required by any applicable Requirements of Law other than the Code to withhold or deduct any Taxes from any payment made hereunder or under any other Loan Document, then (A) such Loan Party or the Administrative Agent, as required by such Requirements of Law as determined in the good faith discretion of such Loan Party or the Administrative Agent (as applicable), shall withhold or make such deductions as are determined by it to be required based upon the information and documentation it has received pursuant to subsection (f) below, (B) such Loan Party or the Administrative Agent, to the extent required by such Requirements of Law, shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with such Requirements of Law, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction for Indemnified Taxes been made.

 

(c) Payment of Other Taxes by the Borrower. The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable Requirements of Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

 

(d) Tax Indemnifications. (i) Each of the Loan Parties shall jointly and severally indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability (setting forth in reasonable detail the basis and calculation of such payment or liability) delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, the Loan Parties are not indemnifying any Person for Excluded Taxes, except to the extent provided in the immediately succeeding sentence. Each of the Loan Parties shall jointly and severally indemnify the Administrative Agent, within 10 days after demand therefor, for any amount which a Lender for any reason fails to pay indefeasibly to the Administrative Agent as required pursuant to Section 3.01(d)(ii) below. Upon making such payment to the Administrative Agent, the Borrower shall be subrogated to the rights of the Administrative Agent pursuant to Section 3.01(d)(ii) below against the applicable defaulting Lender (other than the right of set off pursuant to the last sentence of Section 3.01(d)(ii)).

 

107

 

 

(ii) Each Lender shall, and does hereby, severally indemnify, and shall make payment in respect thereof within 10 days after demand therefor, (x) the Administrative Agent against any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (y) the Administrative Agent and the Loan Parties, as applicable, against any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.06(d) relating to the maintenance of a Participant Register and (z) the Administrative Agent and the Loan Parties, as applicable, against any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent or a Loan Party in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this clause (ii).

 

(e) Evidence of Payments. Upon request by the Borrower or the Administrative Agent, as the case may be, after any payment of Taxes by the Borrower or by the Administrative Agent to a Governmental Authority as provided in this Section 3.01, the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Requirements of Law to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.

 

(f) Status of Lenders; Tax Documentation.

 

(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Requirements of Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(f)(ii)(A)(ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

 

108

 

 

(ii) Without limiting the generality of the foregoing,

 

(A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), and the Administrative Agent shall deliver to the Borrower on or prior to the date it becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower), properly completed and executed originals of IRS Form W-9 certifying that such Lender (or the Administrative Agent, as applicable) is exempt from U.S. federal backup withholding tax;

 

(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

 

(I)in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, properly completed and executed originals of IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, properly completed and executed originals of IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

 

(II)properly completed and executed originals of IRS Form W-8ECI;

 

109

 

 

(III)in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is neither a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, nor a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) properly completed and executed originals of IRS Form W-8BEN or W-8BEN-E, as applicable; or

 

(IV)to the extent a Foreign Lender is not the beneficial owner, properly completed and executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;

 

(C) any Foreign Lender shall, to the extent it is legally entitled to do so