Attached files

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EX-32.2 - EXHIBIT 32.2 - CHICAGO BRIDGE & IRON CO N Va20170331ex322.htm
EX-32.1 - EXHIBIT 32.1 - CHICAGO BRIDGE & IRON CO N Va20170331ex321.htm
EX-31.2 - EXHIBIT 31.2 - CHICAGO BRIDGE & IRON CO N Va20170331ex312.htm
EX-31.1 - EXHIBIT 31.1 - CHICAGO BRIDGE & IRON CO N Va20170331ex311.htm
EX-10.11 - EXHIBIT 10.11 - CHICAGO BRIDGE & IRON CO N Va20170331ex1011.htm
EX-10.9 - EXHIBIT 10.9 - CHICAGO BRIDGE & IRON CO N Va20170331ex109.htm
EX-10.8 - EXHIBIT 10.8 - CHICAGO BRIDGE & IRON CO N Va20170331ex108.htm
EX-10.7 - EXHIBIT 10.7 - CHICAGO BRIDGE & IRON CO N Va20170331ex107.htm
EX-10.1 - EXHIBIT 10.1 - CHICAGO BRIDGE & IRON CO N Va20170331ex101.htm
10-Q - FORM 10-Q - CHICAGO BRIDGE & IRON CO N Va2017033110q.htm


Execution Version

AMENDMENT NO. 3 AND WAIVER TO TERM LOAN AGREEMENT
This Amendment No. 3 and Waiver to Term Loan Agreement (this “Amendment”), dated as of May 8, 2017, is made by and among CHICAGO BRIDGE & IRON COMPANY N.V., a corporation organized under the laws of the Kingdom of the Netherlands (the “Company”), CHICAGO BRIDGE & IRON COMPANY (DELAWARE), a Delaware corporation (the “Borrower”), BANK OF AMERICA, N.A., a national banking association organized and existing under the laws of the United States (“Bank of America”), in its capacity as administrative agent for the Lenders (as defined in the Credit Agreement) (in such capacity, the “Administrative Agent”), and each of the Lenders signatory hereto.
W I T N E S S E T H:
WHEREAS, each of the Company, the Borrower, the Administrative Agent, and the Lenders have entered into that certain Term Loan Agreement dated as of July 8, 2015 (as amended by that certain Amendment No. 1 to Term Loan Agreement, dated as of October 27, 2015, that certain Amendment No. 2 to Term Loan Agreement, dated as of February 24, 2017, and as hereby amended and as from time to time further amended, modified, supplemented, restated, or amended and restated, 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 Lenders have made available to the Borrower a senior unsecured term loan credit facility in an original aggregate principal amount of $500,000,000; and
WHEREAS, the Company has entered into the Guaranty pursuant to which it has guaranteed certain or all of the obligations of the Borrower under the Credit Agreement and the other Loan Documents; and
WHEREAS, the Borrower has requested that the Administrative Agent and the Lenders agree to amend the Credit Agreement in certain respects and to waive a Default or potential Default under the Credit Agreement, which the Administrative Agent and the Lenders party hereto are willing to do on the terms and conditions contained in this Amendment;
NOW, THEREFORE, 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.Amendments to Credit Agreement. Subject to the terms and conditions set forth herein, the Credit Agreement (exclusive of Schedules and Exhibits thereto) shall be amended such that after giving effect to all such amendments, it shall read in its entirety as set forth on Annex I attached hereto.
2.    Amendments to Compliance Certificate. Exhibit C to the Credit Agreement is hereby amended and restated in its entirety as set forth in Annex II hereto.
3.    Waiver. Pursuant to Section 10.01 of the Credit Agreement and subject to the terms and conditions hereof, effective as of the date hereof each Lender party hereto hereby waives:
(a)    the requirement set forth in Section 6.01(d) of the Credit Agreement for the Company to deliver a copy of the plan and forecast of the Company and its Subsidiaries for the fiscal year commencing January 1, 2017, and further waives any Default or potential Default that has arisen or may arise under Section 8.01(b) of the Credit Agreement in connection thereof; and

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(b)    any actual or potential Default or Event of Default, if any, under Section 8.01(b) of the Credit Agreement arising solely as a result of the failure of the Company to comply with the terms of Section 7.18(a) of the Credit Agreement for the fiscal quarter ending March 31, 2017.
The waivers set forth in this Amendment is limited to the extent specifically set forth above for the fiscal year commencing January 1, 2017 and the fiscal quarter ending March 31, 2017, respectively, and shall in no way serve to waive compliance with Section 6.01(d) and Section 7.18(a) of the Credit Agreement for any other periods, or any other terms, covenants or provisions of the Credit Agreement or any other Loan Document, or any obligations of the Borrower, other than as expressly set forth above.
4.    Effectiveness; Conditions Precedent. This Amendment, the amendments to the Credit Agreement provided in Sections 1 and 2 hereof and the waivers provided in Section 3 hereof shall be effective as of the date first written above upon the satisfaction of the following conditions precedent:
(a)    The Administrative Agent shall have received counterparts of this Amendment, duly executed by the Company, the Borrower, each Guarantor and the Required Lenders, which counterparts may be delivered by telefacsimile or other electronic means (including .pdf);
(b)    The Administrative Agent shall have received a copy of an amendment to each other outstanding Transaction Facility, in each case, in the form previously provided to it and in form and substance reasonably satisfactory to the Administrative Agent; and
(c)    (i) The Company shall have paid any fees required to be paid on the date hereof pursuant to that certain Fee Letter dated as of May 3, 2017 by and among the Company, Bank of America, N.A., and Merrill Lynch, Pierce, Fenner & Smith Incorporated; (ii) an amendment fee shall have been received by the Administrative Agent for each Lender executing this Amendment by 3:00 p.m. (New York time) on May 5, 2017 for the account of such Lender, paid to the Administrative Agent, equal to 0.25% (25 bps) multiplied by each such Lender’s Outstanding Amount as of such date; and (iii) all other fees and expenses of the Administrative Agent (including the fees and expenses of counsel to the Administrative Agent) to the extent due and payable under Section 10.04(a) of the Credit Agreement and for which invoices have been presented a reasonable period of time prior to the effectiveness hereof shall have been paid in full (which fees and expenses may be estimated to date without prejudice to final settling of accounts for such fees and expenses).
5.    Representations and Warranties. In order to induce the Administrative Agent and the Lenders to enter into this Amendment, the Company represents and warrants to the Administrative Agent and the Lenders as follows:
(a)    The representations and warranties made by the Company in Article V of the Credit Agreement are true and correct in all material respects (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, in which case it shall be true and correct in all respects) on and as of the date hereof, except to the extent that such representations and warranties expressly relate to an earlier date;
(b)    This Amendment has been duly authorized, executed and delivered by the Company and the Borrower and constitutes a legal, valid and binding obligation of such parties, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting the rights of creditors, and subject to equitable principles of general application; and

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(c)    After giving effect to this Amendment and the corresponding amendments to the Existing 2013 Revolving Credit Agreement and the Existing 2015 Revolving Credit Agreement, no Default or Event of Default has occurred and is continuing, or would result from the effectiveness of this Amendment.
6.    Consent of the Guarantors. Each Guarantor hereby consents, acknowledges and agrees to the amendments and other matters set forth herein and hereby confirms and ratifies in all respects the Guaranty to which it is a party (including without limitation the continuation of each Guarantor’s payment and performance obligations thereunder upon and after the effectiveness of this Amendment and the amendments, waivers and consents contemplated hereby) and the enforceability of the applicable Guaranty against the applicable Guarantor in accordance with its terms.
7.    Entire Agreement. This Amendment, together with all the Loan Documents (collectively, the “Relevant Documents”), sets 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 the other in relation to the subject matter hereof or thereof. None of the terms or conditions of this Amendment may be changed, modified, waived or canceled orally or otherwise, except in writing and in accordance with Section 10.01 of the Credit Agreement.
8.    Full Force and Effect of Credit Agreement. Except as hereby specifically amended, waived, modified or supplemented, the Credit Agreement and each other Loan Document is hereby confirmed and ratified in all respects and shall be and remain in full force and effect according to its respective terms.
9.    Governing Law. This Amendment shall in all respects be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts executed and to be performed entirely within such State, and shall be further subject to the provisions of Sections 10.14 and 10.15 of the Credit Agreement.
10.    Enforceability. Should any one or more of the provisions of this Amendment be determined to be illegal or unenforceable as to one or more of the parties hereto, all other provisions nevertheless shall remain effective and binding on the parties hereto.
11.    References. All references in any of the Loan Documents to the “Credit Agreement” shall mean the Credit Agreement, as amended hereby.
12.    Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the Company, the Borrower, the Administrative Agent and each of the Guarantors and Lenders, and their respective successors, legal representatives, and assignees to the extent such assignees are permitted assignees as provided in Section 10.06 of the Credit Agreement.
13.    No Novation. Neither the execution and delivery of this Amendment nor the consummation of any other transaction contemplated hereunder is intended to constitute a novation of the Credit Agreement or of any of the other Loan Documents or any obligations thereunder.

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14.    Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by telecopy or other electronic means (including .pdf) shall be effective as delivery of a manually executed counterpart of this Amendment.
15.    FATCA. For purposes of determining withholding Taxes imposed under the Foreign Account Tax Compliance Act (FATCA), from and after the effective date of this Amendment, it is understood and agreed that the Administrative Agent may treat (and the Lenders hereby authorize the Administrative Agent to treat) the Loans as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
16.    Collateral Delivery Obligation. Within 60 days after the date hereof (which such date may be extended by an additional 30 days at the sole discretion of the Administrative Agent or as otherwise extended in accordance with the Agreed Collateral Principles), the Obligations under the Loan Documents shall be secured by valid and perfected first priority Liens and security interests, subject to Liens permitted under the Credit Agreement and subject further to the Agreed Collateral Principles, in all of the following, other than Excluded Collateral (the “Collateral”):
(a)    Subject to the limitations expressly set forth in this Section 16, all of the present and future personal property and assets, and, to the extent required by the Administrative Agent, owned real property having an individual value of at least $2,500,000, of each Loan Party including, without limitation:
(1)    all present and future shares of capital stock of (or other ownership or profit interests in) each of the present and future Subsidiaries of each Loan Party other than inactive Subsidiaries (limited, in the case of each entity that is a “controlled foreign corporation” under Section 957 of the Internal Revenue Code, each U.S. entity that is treated as a disregarded entity for U.S. federal income tax purposes that owns (directly or indirectly through another fiscally transparent entity) a “controlled foreign corporation”, and each U.S. entity that is treated as a corporation for U.S. federal income tax purposes whose assets primarily consist of one or more “controlled foreign corporations”, to a pledge of 65% of the capital stock of each such first-tier foreign Subsidiary or U.S. Subsidiary, as applicable, to the extent the pledge of any greater percentage would result in adverse tax consequences to the applicable Loan Party);
(2)    all inventory of each Loan Party;
(3)    all equipment of each Loan Party;
(4)    all intellectual property of each Loan Party (provided that in no event shall any intellectual property security agreements (or equivalent documentation) be filed with the USPTO or US Copyright office until after the occurrence and during the continuation of an Event of Default);
(5)    all accounts receivable and payment intangibles of each Loan Party; and
(6)    all deposit accounts of each Loan Party located in the United States, but excluding (x) any deposit accounts specially and exclusively used for payroll, payroll taxes, and other employee wage and benefit payments to or for the benefit of any Loan Party’s salaried employees and (y) other deposit accounts constituting zero balance, payroll, withholding or trust

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accounts, the aggregate average daily balance of which for all Loan Parties does not exceed $2,500,000 at any time; and
(b)    all proceeds and products of the foregoing.
Assets being disposed of in connection with Project Jazz shall not be included as, or required to be pledged as, Collateral; provided, however, in the event that Project Jazz is not consummated, such assets shall be included as, and be pledged as, Collateral to the extent it would not otherwise be excluded pursuant to this Section 16.
In no event shall the Collateral include any of the following:
(i)    pledges and security interests prohibited by applicable law, rule or regulation (to the extent such law, rule or regulation is effective under applicable anti-assignment provisions of the Uniform Commercial Code (or foreign equivalent));
(ii)     assets of and equity interests in any joint venture or other non-wholly owned Subsidiary;
(iii)    any asset or property if and for so long as the grant of a security interest therein is prohibited by, or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, sublicense, agreement, instrument or other document;
(iv)    any property in which the Loan Party now or hereafter has rights, to the extent in each case a security interest may not be granted by the Loan Party in such property without the consent of one or more third parties, including any Governmental Authority;
(v)     any property to the extent that such grant of a security interest would contravene the Agreed Collateral Principles;
(vi)     any motor vehicles and any other assets subject to a certificate of title (other than proceeds thereof), to the extent a security interest in such motor vehicles or other assets cannot be perfected solely by filing a Uniform Commercial Code financing statement; and
(vii)    assets as to which the Administrative Agent and the Loan Parties reasonably agree that the costs of obtaining such security interest or perfection thereof are excessive in relation to the benefit to the Lenders of the security to be afforded thereby (the foregoing described in clauses (i) through (vii) are, collectively, the “Excluded Collateral”).
The “Agreed Collateral Principles” are as follows: (i) notwithstanding anything herein to the contrary, no actions shall be required under the law of any non-U.S. jurisdiction in order to create or perfect any security interest other than the United Kingdom, Lichtenstein, Netherlands and Netherlands Antilles, (ii) no lien by any Person organized outside of the United States shall be made that would result in any breach of any law or regulation (or analogous restriction) of the jurisdiction of organization of such Person or result in any risk to the officers or directors of such Person or a civil or criminal liability, and (iii) it is expressly acknowledged that in certain jurisdictions it may be (A) impossible or impractical (including for legal and regulatory reasons) to create security over certain categories of assets or (B) it may take longer than agreed upon to grant or create such security over certain categories of assets, in which event the Administrative Agent will act reasonably in granting the necessary extension of timing for obtaining such security, provided,

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that with respect to subsections (A) and (B), the applicable Loan Party has exercised commercially reasonable efforts in providing such security.
Notwithstanding anything to the contrary contained in the Loan Documents, the Liens on the Collateral shall (i) ratably secure the relevant Loan Party’s Obligations, (ii) rank pari passu with the Liens securing the obligations under the Transaction Facilities, (iii) be effected and implemented by the entry by the Loan Parties into such security, pledge and other agreements (including, without limitation, an amendment to the Credit Agreement), in each case in form and substance satisfactory to the Administrative Agent, and the taking by the Loan Parties of such action (including, without limitation, the filing of Uniform Commercial Code financing statements and the delivery of original certificates and instruments constituting or representing Collateral, accompanied by appropriate instruments of transfer), in each case, as may be necessary or advisable in the opinion of the Administrative Agent to vest in the Administrative Agent valid and subsisting Liens on the Collateral, and (iv) be subject to an intercreditor or related agreement (the “Intercreditor Agreement”) by and between the (A) Administrative Agent (acting as “collateral agent”), (B) the noteholders under the Note Purchase Agreements, (C) the respective administrative agents (to the extent authorized to do so) for the creditors under the other Transaction Facilities and (D) those Lenders under the Credit Agreement, the Existing 2013 Revolving Credit Agreement and the Existing 2015 Revolving Credit Agreement who have issued performance and financial letters of credit to the Company and/or its Subsidiaries (but outside of such credit agreements), which in the case of the Lenders pursuant to this clause (D) will be pari passu to the other creditors in clauses (A) through (C) with respect to up to $500,000,000 in Indebtedness owed by the Company or its Subsidiaries to such Lenders. Notwithstanding any other timing requirement in this Section 16 otherwise, the Intercreditor Agreement shall be entered into by the parties thereto not later than 21 days following the date hereof.
The Administrative Agent shall also act as the “collateral agent” under the Loan Documents and any security instruments, and each of the Lenders hereby irrevocably appoints and authorizes the Administrative Agent (i) to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto, and (ii) to enter into security documents, the Intercreditor Agreement and any other related security instruments on behalf of the Lenders.
[Signature pages follow.]


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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.

BORROWER:

CHICAGO BRIDGE & IRON COMPANY (Delaware),
as the Borrower


By:     /s/ Luciano Reyes        
Name: Luciano Reyes
Title: Treasurer






Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page



COMPANY:
CHICAGO BRIDGE & IRON COMPANY N.V.

By: CHICAGO BRIDGE & IRON COMPANY B.V.,
its Managing Director


By:     /s/ Michael S. Taff        
Name: Michael S. Taff
Title: Authorized Signatory




Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page



ACKNOWLEDGEMENT

Each of the undersigned Subsidiary Guarantors hereby acknowledge and agree to the foregoing Amendment.


 
 
 
 
 
CHICAGO BRIDGE & IRON COMPANY, a Delaware corporation
 
 
 
By:
 
/s/ Michael S. Taff
 
 
 
Name:
 
Michael S. Taff
 
 
 
Title:
 
Authorized Signatory
 
 
 
CHICAGO BRIDGE & IRON COMPANY (DELAWARE)
 
 
 
By:
 
/s/ Michael S. Taff
 
 
 
Name:
 
Michael S. Taff
 
 
 
Title:
 
Authorized Signatory
 
 
 
CB&I TYLER COMPANY
 
 
 
 
By:
 
/s/ Luciano Reyes
 
 
 
Name:
 
Luciano Reyes
 
 
 
Title:
 
Treasurer
 
 
 
CB&I, LLC
 
By:
CB&I HoldCo, LLC, its Sole Member
 
 
 
 
By:
 
/s/ Regina N. Hamilton
 
 
 
Name:
 
Regina N. Hamilton
 
 
 
Title:
 
Secretary
 
 
CHICAGO BRIDGE & IRON COMPANY, an Illinois corporation
By:
 
/s/ Luciano Reyes
 
 
 
Name:
 Luciano Reyes
 
 
 
Title:
 Treasurer
 
 
 
A&B BUILDERS, LTD.
 
 
 
 
By:
 
/s/ Luciano Reyes
 
 
 
Name:
 Luciano Reyes
 
 
 
Title:
 Treasurer
 


Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page



 
ASIA PACIFIC SUPPLY COMPANY
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Treasurer

CBI AMERICAS LTD.
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Treasurer
 
CSA TRADING COMPANY, LTD.
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Treasurer
 
CB&I WOODLANDS L.L.C.
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Treasurer
 
CBI COMPANY LTD.
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Treasurer
 
CENTRAL TRADING COMPANY, LTD.
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Treasurer
 
CONSTRUCTORS INTERNATIONAL, L.L.C.
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Treasurer


Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page



HBI HOLDINGS, L.L.C.
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Treasurer
 
 
 
 
 
HOWE-BAKER INTERNATIONAL, L.L.C.
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Treasurer
 
HOWE-BAKER ENGINEERS, LTD.
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Treasurer
 
HOWE-BAKER HOLDINGS, L.L.C.
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Treasurer
 
HOWE-BAKER MANAGEMENT, L.L.C.
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Treasurer
HOWE-BAKER INTERNATIONAL MANAGEMENT L.L.C.
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Treasurer
MATRIX ENGINEERING, LTD.
 
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Treasurer




Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page



MATRIX MANAGEMENT SERVICES, L.L.C.
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Treasurer
 
 
 
 
 
OCEANIC CONTRACTORS, INC.
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Treasurer
 
CBI VENEZOLANA, S.A.
 
 
By:
 
/s/ Rui Orlando Gomes
 
 
Name:
 
Rui Orlando Gomes
 
 
Title:
 
Treasurer
 
CBI MONTAJES DE CHILE LIMITADA
 
 
By:
 
/s/ Rui Orlando Gomes
 
 
Name:
 
Rui Orlando Gomes
 
 
Title:
 
Director/Legal Representative
 
CB&I EUROPE B.V.
 
 
By:
 
/s/ Raymond Buckley
 
 
Name:
 
Raymond Buckley
 
 
Title:
 
Director
 
CBI EASTERN ANSTALT
 
 
By:
 
/s/ Raymond Buckley
 
 
Name:
 
Raymond Buckley
 
 
Title:
 
Director
 
CB&I POWER COMPANY B.V.
(f/k/a CMP HOLDINGS B.V.)
 
 
By:
 
Raymond Buckley
 
 
Name:
 
Raymond Buckley
 
 
Title:
 
Director


Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page



CBI CONSTRUCTORS PTY LTD
 
By:
/s/ Ian Michael Bendesh
 
Name:
 
Ian Michael Bendesh
 
Title:
 
Director
 
 
 
 
CBI ENGINEERING AND CONSTRUCTION
CONSULTANT (SHANGHAI) CO. LTD.
 
 
By:
 
/s/ Raymond Buckley
 
 
Name:
 Raymond Buckley
 
 
Title:
 Chairman
 
CBI (PHILIPPINES), INC.
 
 
By:
 
/s/ Tom Anderson
 
 
Name:
Tom Anderson
 
 
Title:
President
 
CBI OVERSEAS, LLC
 
 
By:
 
/s/ Regina N. Hamilton
 
 
Name:
Regina N. Hamilton
 
 
Title:
 Secretary
 
 
 
 
CB&I CONSTRUCTORS LIMITED
 
 
By:
 
/s/ Kevin J. Forder
 
 
Name:
Kevin J. Forder
 
 
Title:
Director
 
CB&I HOLDINGS (U.K.) LIMITED
 
 
By:
 
/s/ Kevin J. Forder
 
 
Name:
Kevin J. Forder
 
 
Title:
Director
 
CB&I UK LIMITED
 
 
By:
 
/s/ Kevin J. Forder
 
 
Name:
Kevin J. Forder
 
 
Title:
Director
 



Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page



CB&I MALTA LIMITED
 
 
By:
 
/s/ Duncan Wigney
 
 
Name:
 
Duncan Wigney
 
 
Title:
 
Director
 
LUTECH RESOURCES LIMITED
 
 
By:
/s/ Jonathan Stephenson
 
Name:
Jonathan Stephenson
 
Title:
Secretary
 
 
 
 
 
 
NETHERLANDS OPERATING COMPANY B.V.
 
 
By:
 
/s/ H.M. Koese
 
 
Name:
H. M. Koese
 
 
Title:
Director
 
 
 
 
 
CBI NEDERLAND B.V.
 
 
By:
 
/s/ Ashok Joshi
 
 
Name:
Ashok Joshi
 
 
Title:
Director
 
ARABIAN GULF MATERIAL SUPPLY COMPANY, LTD.
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Director
PACIFIC RIM MATERIAL SUPPLY COMPANY, LTD.
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Director
 
SOUTHERN TROPIC MATERIAL SUPPLY COMPANY, LTD.
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Director


Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page



 
CHICAGO BRIDGE & IRON (ANTILLES) N.V.
 
 
By:
 
/s/ Michael S. Taff
 
 
Name:
 
Michael S. Taff
 
 
Title:
 
Managing Director
 
LUMMUS TECHNOLOGY HEAT TRANSFER B.V.
 
 
By:
 
/s/ John R. Alanese, Jr.
 
 
Name:
 
John R. Albanese, Jr.
 
 
Title:
 
Director
 
LEALAND FINANCE COMPANY B.V.
 
 
By:
 
/s/ Michael S. Taff
 
 
Name:
 
Michael S. Taff
 
 
Title:
 
Managing Director
 
 
 
 
 
CB&I FINANCE COMPANY LIMITED
 
 
By:
 
/s/ Kevin J. Forder
 
 
Name:
 
Kevin J. Forder
 
 
Title:
 
Director
 
CB&I OIL & GAS EUROPE B.V.
 
 
By:
 
/s/ Michael S. Taff
 
 
Name:
 
Michael S. Taff
 
 
Title:
 
Managing Director
 
CBI COLOMBIANA S.A.
 
 
By:
 
/s/ Michael S. Taff
 
 
Name:
 
Michael S. Taff
 
 
Title:
 
Director
 
CHICAGO BRIDGE & IRON COMPANY B.V.
 
 
By:
 
/s/ Michael S. Taff
 
 
Name:
 
Michael S. Taff
 
 
Title:
 
Managing Director


Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page



 
CB&I TECHNOLOGY INTERNATIONAL CORPORATION (f/k/a LUMMUS INTERNATIONAL CORPORATION)

 
 
 
 
 
By:
 
/s/ John R. Albanese, Jr.
 
 
 
Name:
 
John R. Albanese, Jr.
 
 
 
Title:
 
Vice President – Finance – Treasurer
 
 
 
CB&I TECHNOLOGY VENTURES, INC.
 
(f/k/a LUMMUS CATALYST COMPANY LTD.)
 
 
 
By:
 
/s/ John R. Albanese, Jr.
 
 
 
Name:
 
John R. Albanese, Jr.
 
 
 
Title:
 
Vice President & Treasurer
 
 
 
 
 
 
 
 
CB&I TECHNOLOGY OVERSEAS CORPORATION (f/k/a LUMMUS OVERSEAS CORPORATION)
 
 
 
 
 
 
By:
 
/s/ John R. Albanese, Jr.
 
 
 
 
Name:
 
John R. Albanese, Jr.
 
 
 
 
Title:
 
Vice President & Treasurer
 
 
 
CATALYTIC DISTILLATION TECHNOLOGIES
 
 
 
 
By:
 
/s/ John R. Albanese, Jr.
 
 
 
 
Name:
 
John R. Albanese, Jr.
 
 
 
 
Title:
 
Management Committee Member
 
 
 
 
 
CB&I TECHNOLOGY INC. (f/k/a LUMMUS TECHNOLOGY, INC.)
 
 
 
 
 
 
By:
 
/s/ John R. Albanese, Jr.
 
 
 
 
Name:
 
John R. Albanese, Jr.
 
 
 
 
Title:
 
CFO & Treasurer
 
 
 
 
 
CBI SERVICES, LLC
 
 
By:
CB&I HoldCo, LLC, its Sole Member
 
 
 
 
 
 
By:
 
/s/ Regina N. Hamilton
 
 
 
 
Name:
 
Regina N. Hamilton
 
 
 
 
Title:
 
Secretary
 
 




Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page



 
WOODLANDS INTERNATIONAL INSURANCE COMPANY
 
 
By:
 
/s/ Robert Havlick
 
 
Name:
 
Robert Havlick
 
 
Title:
 
Director
 
CB&I HUNGARY HOLDING LIMITED LIABILITY COMPANY
 
 
By:
 
/s/ William G. Lamb
 
 
Name:
 
William G. Lamb
 
 
Title:
 
Director
 
LUMMUS NOVOLEN TECHNOLOGY GMBH
 
 
By:
 
/s/ Godofredo Follmer
 
 
Name:
 
Godofredo Follmer
 
 
Title:
 
Managing Director
 
 
 
 
 
CB&I LUMMUS GMBH
 
 
By:
 
/s/ Andreas Schwarzhaupt
 
 
Name:
 
Andreas Schwarzhaupt
 
 
Title:
 
Managing Director
 
CB&I S.R.O.
 
 
By:
 
/s/ Jiri Gregor
 
 
Name:
 
Jiri Gregor
 
 
Title:
 
Managing Director
 
CBI PERUANA S.A.C.
 
 
By:
 
/s/ James E. Bishop
 
 
Name:
 
James E. Bishop
 
 
Title:
 
General Manager
 
HORTON CBI, LIMITED
 
 
By:
 
/s/ Greg Guse
 
 
Name:
 
Greg Guse
 
 
Title:
 
Director


Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page



 
CB&I (NIGERIA) LIMITED
 
 
By:
 
/s/ Andy Dadosky
 
 
Name:
 
Andy Dadosky
 
 
Title:
 
Director
 
CB&I SINGAPORE PTE LTD.
 
 
By:
 
/s/ Michael S. Taff
 
 
Name:
 
Michael S. Taff
 
 
Title:
 
Director
 
CB&I NORTH CAROLINA, INC.
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Director
 
 
 
 
 
 
SHAW ALLOY PIPING PRODUCTS, LLC
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Manager
 
CB&I Walker LA, L.L.C.
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Manager
 
 
 
 
 
CB&I ENVIRONMENTAL & INFRASTRUCTURE, INC.
(f/k/a SHAW ENVIRONMENTAL, INC.)
 
 
By:
 
/s/ Luciano Reyes
 
 
Name:
 
Luciano Reyes
 
 
Title:
 
Director


Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page



   
 
 
 
 
 
 
 
CB&I OVERSEAS (FAR EAST) INC.
 
 
 
 
 
 
 
 
By:
 
  /s/ Joseph Christaldi
 
 
 
 
 
Name:
 
Joseph Christaldi
 
 
 
 
 
Title:
 
Director
 
 
 
 
 
 
 
THE SHAW GROUP INC.
 
 
 
 
 
 
 
 
By:
 
/s/ Luciano Reyes
 
 
 
 
 
Name:
 
Luciano Reyes
 
 
 
 
 
Title:
 
Treasurer
 
 
 
 
LUMMUS GASIFICATION TECHNOLOGY LICENSING COMPANY
 
 
 
 
 
By:
 
/s/ John R. Albanese, Jr.
 
 
 
 
 
Name:
 
John R. Albanese, Jr.
 
 
 
 
 
Title:
 
Director
 
 
 
 
 
 
 
CB&I LAURENS, INC.
 
 
 
 
 
 
 
 
By:
 
/s/ William G. Lamb
 
 
 
 
 
Name:
 
William G. Lamb
 
 
 
 
 
Title:
 
Vice President – Global Tax
 
 
 
 
 
 
 
CB&I GOVERNMENT SOLUTIONS, INC.
 
 
 
 
 
 
 
By:
 
/s/ Luciano Reyes
 
 
 
 
 
Name:
 
Luciano Reyes
 
 
 
 
 
Title:
 
Director
 
 
 
 
 
 
 
SHAW SSS FABRICATORS, INC.
 
 
 
 
 
 
 
 
By:
 
/s/ Luciano Reyes
 
 
 
 
 
Name:
 
Luciano Reyes
 
 
 
 
 
Title:
 
Treasurer
 
 
 
 
 
CHICAGO BRIDGE & IRON COMPANY (NETHERLANDS), LLC
 
 
 
 
 
 
By:
 
/s/ Regina N. Hamilton
 
 
 
 
 
Name:
 
Regina N. Hamilton
 
 
 
 
 
Title:
 
Director
 
 
 


Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page



 
 
 
 
 
CBI US HOLDING COMPANY, INC
 
 
By:
 
/s/ Regina N. Hamilton
 
 
Name:
 
Regina N. Hamilton
 
 
Title:
 
Secretary
 
 
 
 
 
CBI HOLDCO TWO, INC
 
 
By:
 
/s/ Regina N. Hamilton
 
 
Name:
 
Regina N. Hamilton
 
 
Title:
 
Secretary
 
 
 
 
 
CBI COMPANY BV
 
 
By:
 
/s/ Ashok Joshi
 
 
Name:
 
Ashok Joshi
 
 
Title:
 
Director






Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan 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         

Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page




LENDERS:

BANK OF AMERICA, N.A., as a Lender


By:/s/ Patrick Martin        
Name: Patrick Martin
Title: Managing Director

Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page





ARAB BANKING CORPORATION (B.S.C.), as a Lender


By: /s/ Victoria Gale            
Name: Victoria Gale
Title: Senior Relationship Manager, Financial Institutions, Wholesale Banking


By:/s/ Gautier Strub            
Name: Gautier Strub
Title: Senior Relationship Manager, Corporates, Wholesale Banking

Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page




THE BANK OF EAST ASIA, LIMITED, NEW YORK BRANCH, as a Lender


By:/s/ Jamees Hua        
Name: James Hua
Title: SVP


By:/s/ Kitty Sin            
Name: Kitty Sin
Title: SVP


Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page




BANK OF MONTREAL, as a Lender


By: /s/ Michael Gift        
Name: Michael Gift
Title: Director


Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page





THE BANK OF NOVA SCOTIA, as a Lender


By: /s/ Michael Grad        
Name: Michael Grad
Title: Director

Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page





BANK OF THE WEST, as a Lender

By: /s/ Robert J. Likos            
Name: Robert J. Likos
Title: Director

Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page





THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Lender


By: /s/ Mark Maloney        
Name: Mark Maloney
Title: Authorized Signatory


Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page





BNP PARIBAS, as a Lender


By: Mary-Ann Wong            
Name: Mary-Ann Wong
Title: Vice President

By:/s/ Liz Cheng            
Name: Liz Cheng
Title: Vice President

Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page





BOKF, NA DBA BANK OF TEXAS, as a Lender


By: /s/ Marian Livingston        
Name: Marian Livingston
Title: Senior Vice President

Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page





CITIBANK, N.A., as a Lender


By: /s/ Paul Burroughs            
Name: Paul Burroughs
Title: Vice President

Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page





COMPASS BANK, as a Lender


By: /s/ Aaron Lloyd        
Name: Aaron Lloyd
Title: Director

Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page






CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender


By: /s/ Dixon Schultz        
Name: Dixon Schultz
Title: Managing Director


By: /s/ Michael Willis        
Name: Michael Willis
Title: Managing Director

Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page





DBS BANK LTD., as a Lender


By:/s/ Yeo How Ngee            
Name: Yeo How Ngee
Title: Managing Director

Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page





FIFTH THIRD BANK, as a Lender


By:/s/ Robert R. Mangers        
Name: Robert R. Mangers
Title: Vice President

Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page





FIRST COMMERCIAL BANK, LTD., NEW YORK BRANCH, as a Lender


By:/s/ Bill Wang        
Name: Bill Wang
Title: Senior Vice President & General Manager

Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page






HSBC BANK USA, NATIONAL ASSOCIATION, as a Lender


By:/s/ Paul Hatton        
Name: Paul Hatton
Title: Managing Director


Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page





ING BANK N.V., DUBLIN BRANCH, as a Lender


By: /s/ Shaun Hawley            
Name: Shaun Hawley
Title: Director


By:/s/ Barry Fehily            
Name: Barry Fehily
Title: Managing Director

Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page





INTESA SANPAOLO S.P.A., NEW YORK BRANCH, as a Lender


By:/s/ W.S. Denton        
Name: W. S. Denton
Title: Corporate & Investment Banking


By:/s/ Francesco Di Mario    
Name: Francesco Di Mario
Title: FVP, Credit Manager

Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page





LLOYDS BANK PLC, as a Lender


By: /s/ Erin Walsh        
Name: Erin Walsh
Title: Assistant Vice President – W004


By:/s/ Daven Popat        
Name: Daven Popat
Title: Senior Vice President – P003


Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page





MIZUHO BANK, LTD., as a Lender


By:/s/ Donna DeMagistris
Name: Donna DeMagistris
Title: Authorized Signatory


Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page






NATIONAL BANK OF KUWAIT, S.A.K., as a Lender


By: /s/ Wendy Wanninger    
Name: Wendy Wanninger
Title: Executive Manager


By: /s/ Artlette Kittaneh        
Name: Arlette Kittaneh
Title: Executive Manager


Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page




NBAD AMERICAS N.V., as a Lender


By:/s/ Pamela Sigda        
Name: Pamela Sigda
Title: Chief Operating Officer & SVP


By:/s/ Sousan Tarazi        
Name: Souzan Tarazi
Title: Head of Operations

Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page




THE NORTHERN TRUST COMPANY, as a Lender


By:/s/    Kevin L. Burson        
Name: Kevin L. Burson
Title: Senior Vice President


Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page






REGIONS BANK, as a Lender


By:/s/ Joey Powell            
Name: Joey Powell
Title: Director


Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page





LENDERS:
RIYAD BANK, HOUSTON AGENCY, as a Lender


By:/s/ Tim Hartnett        
Name: Tim Hartnett
Title: Vice President & Administrative Officer


By: /s/ Manny Cafeo        
Name: Manny Cafeo
Title: Operations Manager


Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page





SANTANDER BANK, N.A., as a Lender


By:/s/ Andrew Barbosa            
Name: Andres Barbosa
Title: Executive Director

Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page






SUNTRUST BANK, as a Lender


By: /s/ Justin Lien            
Name: Justin Lien
Title: Director


Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page






THE STANDARD BANK OF SOUTH AFRICA LIMITED, as a Lender


By:/s/ Grey Fyfe        
Name: Grey Fyfe
Title: Head MEI

Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page





LENDERS:
TORONTO DOMINION (TEXAS) LLC, as a Lender


By: /s/    Annie Dorval        
Name: Annie Dorval
Title: Authorized Signatory

Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page






UNICREDIT BANK AG, NEW YORK BRANCH, as a Lender


By:/s/ Julien Tizorin            
Name: Julien Tizorin
Title: Director

By:/s/ Ken Hamilton            
Name: Ken Hamilton
Title: Managing Director

Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page





ZB, NA D/B/A AMEGY BANK NATIONAL ASSOCIATION, as a Lender


By:/s/ Lauren Eller        
Name: Lauren Eller
Title: Assistant Vice President
    

Chicago Bridge & Iron
Amendment No. 3 and Waiver to Term Loan Agreement
Signature Page






ANNEX I

CONFORMED CREDIT AGREEMENT

(see attached)




Execution Version




Published CUSIP Numbers: 16725MAK7 (Deal)
Term Loan: 16725MAL5
TERM LOAN AGREEMENT

Dated as of July 8, 2015
among    

image1a02.jpg
CHICAGO BRIDGE & IRON COMPANY N.V.,
as Guarantor,

CHICAGO BRIDGE & IRON COMPANY (DELAWARE),
as the Borrower,

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

and

The Other Lenders Party Hereto

BANK OF AMERICA MERRILL LYNCH
and
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
as Joint Lead Arrangers and Joint Bookrunners

CRÉDIT AGRICOLE CORPORATE,
as Syndication Agent

BNP PARIBAS SECURITIES CORP.,
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD
and
COMPASS BANK,
as Co-Documentation Agents

______________________________________ 
1 Conformed version to include Amendments 1, 2 and 3.

67688554_13

TABLE OF CONTENTS

Page


ARTICLE I
 
DEFINITIONS AND ACCOUNTING TERMS
1

1.01
 
Defined Terms
1

1.02
 
Other Interpretive Provisions
32

1.03
 
Accounting Terms
33

1.04
 
Rounding
33

1.05
 
Times of Day
33

1.06
 
Supplemental Disclosure
33

 
 
 
 
ARTICLE II
 
THE COMMITMENTS AND BORROWINGS
34

2.01
 
Loans
34

2.02
 
Borrowings, Conversions and Continuations of Loans
34

2.03
 
Prepayments
35

2.04
 
Reduction of Commitments
36

2.05
 
Repayment of Loans
36

2.06
 
Interest
37

2.07
 
Fees
37

2.08
 
Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
37

2.09
 
Evidence of Debt
38

2.10
 
Payments Generally; Administrative Agent’s Clawback
38

2.11
 
Sharing of Payments by Lenders
40

2.12
 
Incremental Loans
41

2.13
 
Defaulting Lenders
42

 
 
 
 
ARTICLE III
 
TAXES, YIELD PROTECTION AND ILLEGALITY
43

3.01
 
Taxes
44

3.02
 
Illegality
48

3.03
 
Inability to Determine Rates
49

3.04
 
Increased Costs; Reserves on Eurodollar Rate Loans
50

3.05
 
Compensation for Losses
51

3.06
 
Mitigation Obligations; Replacement of Lenders
52

3.07
 
Survival
52

 
 
 
 
ARTICLE IV
 
CONDITIONS PRECEDENT
52

4.01
 
Conditions of Initial Advance
52

 
 
 
 
ARTICLE V
 
REPRESENTATIONS AND WARRANTIES
54

5.01
 
Organization; Corporate Powers
54

5.02
 
Authority, Execution and Delivery; Loan Documents
54

5.03
 
No Conflict; Governmental Consents
55

5.04
 
No Material Adverse Change
55

5.05
 
Financial Statements
55

5.06
 
Payment of Taxes
56


67688554_13

TABLE OF CONTENTS

Page


5.07
 
Litigation; Loss Contingencies and Violations
56

5.08
 
Subsidiaries
57

5.09
 
ERISA
57

5.10
 
Accuracy of Information
58

5.11
 
Securities Activities
58

5.12
 
Material Agreements
58

5.13
 
Compliance with Laws
58

5.14
 
Assets and Properties
59

5.15
 
Statutory Indebtedness Restrictions
59

5.16
 
Insurance
59

5.17
 
Environmental Matters
59

5.18
 
Benefits
60

5.19
 
Solvency
60

5.20
 
OFAC
60

5.21
 
PATRIOT Act
60

5.22
 
Senior Indebtedness
60

5.23
 
Anti-Corruption Laws
60

5.24
 
Not an EEA Financial Institution
61

 
 
 
 
ARTICLE VI
 
AFFIRMATIVE COVENANTS
61

6.01
 
Financial Report
61

6.02
 
Notices
62

6.03
 
Existence, Etc
66

6.04
 
Corporate Powers; Conduct of Business
66

6.05
 
Compliance with Laws, Etc
66

6.06
 
Payment of Taxes and Claims; Tax Consolidation
66

6.07
 
Insurance
66

6.08
 
Inspection of Property; Books and Records; Discussions
66

6.09
 
ERISA Compliance
67

6.10
 
Maintenance of Property
67

6.11
 
Environmental Compliance
67

6.12
 
Use of Proceeds
67

6.13
 
Subsidiary Guarantors
68

6.14
 
Foreign Employee Benefit Compliance
69

6.15
 
Anti-Corruption Laws
69

 
 
 
 
ARTICLE VII
 
NEGATIVE COVENANTS
69

7.01
 
Indebtedness
69

7.02
 
Sales of Assets
71

7.03
 
Liens
72

7.04
 
Investments
73

7.05
 
Contingent Obligations
74

7.06
 
Conduct of Business; Subsidiaries; Permitted Acquisitions
74


67688554_13

TABLE OF CONTENTS

Page


7.07
 
Transactions with Shareholders and Affiliates
76

7.08
 
Restriction on Fundamental Changes
76

7.09
 
Sales and Leasebacks
76

7.10
 
Margin Regulations
76

7.11
 
ERISA
77

7.12
 
Subsidiary Covenants
77

7.13
 
Hedging Obligations
77

7.14
 
Issuance of Disqualified Stock
77

7.15
 
Non-Guarantor Subsidiaries
78

7.16
 
Intercompany Indebtedness
78

7.17
 
Restricted Payments
78

7.18
 
Financial Covenants
78

7.19
 
Sanctions
80

7.20
 
Anti-Corruption Laws
80

 
 
 
 
ARTICLE VIII
 
EVENTS OF DEFAULT AND REMEDIES
80

8.01
 
Events of Default
81

8.02
 
Remedies Upon Event of Default
83

8.03
 
Application of Funds
84

 
 
 
 
ARTICLE IX
 
ADMINISTRATIVE AGENT
85

9.01
 
Appointment and Authority
85

9.02
 
Rights as a Lender
85

9.03
 
Exculpatory Provisions
85

9.04
 
Reliance by Administrative Agent
86

9.05
 
Delegation of Duties
86

9.06
 
Resignation of Administrative Agent
87

9.07
 
Non-Reliance on Administrative Agent and Other Lenders
88

9.08
 
No Other Duties, Etc
88

9.09
 
Administrative Agent May File Proofs of Claim
88

9.10
 
Guaranty Matters
89

9.11
 
Hedge Obligations
89

 
 
 
 
ARTICLE X
 
MISCELLANEOUS
89

10.01
 
Amendments, Etc
89

10.02
 
Notices; Effectiveness; Electronic Communication
91

10.03
 
No Waiver; Cumulative Remedies; Enforcement
93

10.04
 
Expenses; Indemnity; Damage Waiver
93

10.05
 
Payments Set Aside
95

10.06
 
Successors and Assigns
96

10.07
 
Treatment of Certain Information; Confidentiality
99

10.08
 
Right of Setoff
100

10.09
 
Interest Rate Limitation
101


67688554_13

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Page


10.10
 
Counterparts; Integration; Effectiveness
101

10.11
 
Survival of Representations and Warranties
101

10.12
 
Severability
102

10.13
 
Replacement of Lenders
102

10.14
 
Governing Law; Jurisdiction; Etc
103

10.15
 
Waiver of Jury Trial
104

10.16
 
No Advisory or Fiduciary Responsibility
104

10.17
 
Electronic Execution of Assignments and Certain Other Documents
105

10.18
 
USA PATRIOT Act
105

10.19
 
Entire Agreement
106

10.20
 
Keepwell
106

10.21
 
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
106

 
 
 
 
ARTICLE XI
 
GUARANTY
107

11.01
 
Guaranty
107

11.02
 
Waivers; Subordination of Subrogation
107

11.03
 
Guaranty Absolute
108

11.04
 
Acceleration
109

11.05
 
Marshaling; Reinstatement
109

11.06
 
Termination Date
109

11.07
 
Subordination of Intercompany Indebtedness
110



67688554_13



SCHEDULES

1.01A    Excluded Foreign Subsidiaries
1.01B    Material Subsidiaries
2.01    Commitments and Applicable Percentages
5.07    Litigation
5.08    Subsidiaries
5.09    Pensions and Post-Retirement Plans
5.17    Environmental Matters
7.01    Permitted Existing Indebtedness
7.03    Permitted Existing Liens
7.04    Permitted Existing Investments
7.05    Permitted Existing Contingent Obligations
7.12    Subsidiary Covenants
7.17    Permitted Restricted Payments
10.02    Administrative Agent’s Office; Certain Addresses for Notices
EXHIBITS

Form of
A        Borrowing/Election Notice
B        Note
C        Compliance Certificate
D        Assignment and Assumption
E        Officer’s Certificate
F        Subsidiary Guaranty
G-1        Company’s US Counsel’s Opinion
G-2        Company’s Foreign Counsel’s Opinion
H-1–H-4    U.S. Tax Compliance Certificates


-v-
67688554_13



TERM LOAN AGREEMENT
This TERM LOAN AGREEMENT (“Agreement”) is entered into as of July 8, 2015 among CHICAGO BRIDGE & IRON COMPANY N.V., a corporation organized under the laws of The Kingdom of the Netherlands (the “Company”), CHICAGO BRIDGE & IRON COMPANY (DELAWARE), a Delaware corporation (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.
The Loan Parties (as hereinafter defined) have requested that the Lenders make term loans to the Loan Parties in an aggregate principal amount of up to $500,000,000.00.
The Lenders have agreed to make such loans and other financial accommodations to the Loan Parties on the terms and subject to the 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
1.01    Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
Accounting Change” has the meaning specified in Section 1.03.
Acquisition” means any transaction, or any series of related transactions, consummated on or after the date of this Agreement, by which the Company or any of its Subsidiaries (a) acquires any going business or all or substantially all of the assets of any Person, firm, corporation or division thereof, whether through purchase of assets, merger or otherwise or (b) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the securities of a corporation which have ordinary voting power for the election of directors (other than securities having such power only by reason of the happening of a contingency) or a majority (by percentage of voting power) of the outstanding Equity Interests of another Person.
Act” has the meaning specified in Section 10.18.
Adjusted Indebtedness” of a Person means, without duplication, such Person’s Indebtedness but excluding obligations with respect to (a) the undrawn portion of any Performance Letters of Credit (under and as defined in each of the Existing 2013 Revolving Credit Agreement and the Existing 2015 Revolving Credit Agreement), bank guarantees supporting obligations comparable to those supported by performance letters of credit and all reimbursement agreements related thereto and (b) liabilities of such Person or any of its Subsidiaries under any sale and leaseback transaction which do not create a liability on the consolidated balance sheet of such Person.





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 Company and the Lenders.
Administrative Questionnaire” means an Administrative Questionnaire in substantially a 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.
Aggregate Commitments” means the Commitments of all the Lenders.
Agreement” means this Credit Agreement.
Agreement Accounting Principles” means generally accepted accounting principles as in effect in the United States from time to time, applied in a manner consistent with that used in preparing the financial statements of the Company referred to in Section 5.05(b) hereof; provided, however, except as provided in Section 1.03, that with respect to the calculation of financial ratios and other financial tests required by this Agreement, “Agreement Accounting Principles” means generally accepted accounting principles as in effect in the United States as of the date of this Agreement, applied in a manner consistent with that used in preparing the financial statements of the Company referred to in Section 5.05(b) hereof.
Amendment No. 2 Closing Date” means February 24, 2017, the effective date of Amendment No. 2 to Term Loan Agreement by and among the Company, the Borrower, the Administrative Agent and the Lenders party thereto.
Amendment No. 3 Closing Date” means May 8, 2017, the effective date of Amendment No. 3and Waiver to Term Loan Agreement by and among the Company, the Borrower, the Administrative Agent and the Lenders party thereto.
Applicable Percentage” means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Facility represented by (a) on or prior to the Closing Date, such Lender’s Commitment at such time and (b) thereafter, the outstanding principal amount of such Lender’s Loans at such time. If the commitment of each Lender to make Loans has been terminated pursuant to Section 8.02 or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender 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, from time to time, the following percentages per annum, based upon the Leverage Ratio as set forth below:
Applicable Rate
Pricing Level
Leverage Ratio
Eurodollar Rate +
Base Rate +
1
Less than 0.75 to 1.00
1.250%
0.250%
2
Less than 1.25 to 1.00 but greater than or equal to 0.75 to 1.00
1.375%
0.375%
3
Less than 2.00 to 1.00 but greater than or equal to 1.25 to 1.00
1.500%
0.500%
4
Less than 2.50 to 1.00 but greater than or equal to 2.00 to 1.00
1.750%
0.750%
5
Less than 3.00 to 1.00 but greater than or equal to 2.50 to 1.00
2.000%
1.000%
6
Less than 3.50 to 1.00 but greater than or equal to 3.00 to 1.00
2.250%
1.250%
7
Greater than or equal to 3.50 to 1.00
2.500%
1.500%

Any increase or decrease in the Applicable Rate resulting from a change in the Leverage Ratio shall become effective five (5) Business Days immediately following the date a Compliance Certificate is delivered pursuant to Section 6.01(c)(ii); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 7 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and in each case shall remain in effect until the date on which such Compliance Certificate is delivered.
Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for the period from the Amendment No. 3 Closing Date through and including the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.01(c)(ii) for the period of four consecutive fiscal quarters ending June 30, 2017 shall be Pricing Level 7.
Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).
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.
Arrangers” mean each of Merrill Lynch, Pierce, Fenner & Smith Incorporated (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially

    




all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), Compass Bank, BNP Paribas Securities Corp., Crédit Agricole Corporate and Investment Bank and The Bank of Tokyo-Mitsubishi UFJ, Ltd., each in its capacity as a joint lead arranger and joint bookrunner.
Asset Sale” means, with respect to any Person, the sale, lease, conveyance, disposition or other transfer by such Person of any of its assets (including by way of a sale-leaseback transaction, and including the sale or other transfer of any of the Equity Interests of any Subsidiary of such Person, but not the Equity Interests of such Person) to any Person other than the Company or any of its wholly owned Subsidiaries other than (a) the sale of inventory in the ordinary course of business and (b) the sale or other disposition of any obsolete equipment disposed of in the ordinary course of business.
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 D or any other form (including electronic documentation generated by MarkitClear or other electronic platform) approved by the Administrative Agent.
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.
Bankruptcy Code” means 11 U.S.C. § 101 et seq.
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 Eurodollar Rate plus 1.00%; provided that in no event shall such rate be less than 0%. 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 such 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 Loan that bears interest based on the Base Rate.
Benefit Plan” means a defined benefit plan as defined in Section 3(35) of ERISA (other than a Multiemployer Plan or Foreign Pension Plan) in respect of which the Company or any other

    




member of the Controlled Group is, or within the immediately preceding six (6) years was, an “employer” as defined in Section 3(5) of ERISA.
Borrower” has the meaning specified in the introductory paragraph hereto.
Borrower Materials” has the meaning specified in Section 6.02.
Borrowing” means a borrowing consisting of simultaneous Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period, made by each of the Lenders pursuant to Section 2.01 or by some or all of the Lenders pursuant to Section 2.12, as applicable.
Borrowing/Election Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, in each case 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.
Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, New York, New York or the state where the Administrative Agent’s Office is located, and in respect of any fundings, disbursements, settlements and payments in respect of any Eurodollar Rate Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any Eurodollar Rate Loan, means any such day that is also a London Banking Day.
Capital Stock” means (a) in the case of a corporation, corporate stock, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock, (c) in the case of a partnership, partnership interests (whether general or limited) and (d) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
Capitalized Lease” of a Person means any lease of property by such Person as lessee which would be capitalized on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles.
Capitalized Lease Obligations” of a Person means the amount of the obligations of such Person under Capitalized Leases which would be capitalized on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles.
Cash Equivalents” means (a) marketable direct obligations issued or unconditionally guaranteed by the United States government and backed by the full faith and credit of the United States government; (b) domestic and Eurodollar certificates of deposit and time deposits, bankers’ acceptances and floating rate certificates of deposit issued by any commercial bank organized under the laws of the United States, any state thereof, the District of Columbia, any foreign bank, or its branches or agencies, the long-term indebtedness of which institution at the time of acquisition is

    




rated A- (or better) by S&P or A3 (or better) by Moody’s, and which certificates of deposit and time deposits are fully protected against currency fluctuations for any such deposits with a term of more than ninety (90) days; (c) shares of money market, mutual or similar funds having assets in excess of $100,000,000 and the investments of which are limited to (x) investment grade securities (i.e., securities rated at least Baa by Moody’s or at least BBB by S&P) and (y) commercial paper of United States and foreign banks and bank holding companies and their subsidiaries and United States and foreign finance, commercial industrial or utility companies which, at the time of acquisition, are rated A-1 (or better) by S&P or P-1 (or better) by Moody’s (all such institutions being, “Qualified Institutions”); (d) commercial paper of Qualified Institutions; provided that the maturities of such Cash Equivalents shall not exceed three hundred sixty-five (365) days from the date of acquisition thereof; and (e) auction rate securities (long-term, variable rate bonds tied to short-term interest rates) that are rated Aaa by Moody’s or AAA by S&P.
Change in Law” means the occurrence, after the date of this Agreement, 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” (within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly, of twenty percent (20%) or more of the voting power of the then-outstanding Capital Stock of the Company entitled to vote generally in the election of the directors of the Company; or
(b)    the majority of the board of directors of the Company fails to consist of Continuing Directors; or
(c)    except as expressly permitted under the terms of this Agreement, the Company, the Borrower or any Subsidiary Borrower consolidates with or merges into another Person or conveys, transfers or leases all or substantially all of its property to any Person, or any Person consolidates with or merges into the Company, the Borrower or any Subsidiary Borrower, in either event pursuant to a transaction in which the outstanding Capital Stock of the Company, the Borrower or such Subsidiary Borrower, as applicable, is reclassified or changed into or exchanged for cash, securities or other property; or

    




(d)    except as otherwise expressly permitted under the terms of this Agreement, the Company shall cease to own and control, either directly or indirectly, all of the economic and voting rights associated with all of the outstanding Capital Stock of each of the Subsidiary Guarantors or shall cease to have the power, directly or indirectly, to elect all of the members of the board of directors of each of the Subsidiary Guarantors.
Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01.
Closing-Date Incremental Loan” has the meaning specified in Section 2.12(a).
Code” means the Internal Revenue Code of 1986.
Commitment” means, as to each Lender, its obligation to make Loans to the Borrower pursuant to Section 2.01 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, in each case, as such amount may be adjusted from time to time in accordance with this Agreement.
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.
Company” has the meaning specified in the introductory paragraph hereto.
Compliance Certificate” means a certificate substantially in the form of Exhibit C.
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 Fixed Charges” means, for any period, the sum of (a) Consolidated Long-Term Lease Rentals for such period and (b) consolidated Interest Expense of the Company and its Subsidiaries (including capitalized interest and the interest component of Capitalized Leases) for such period.
Consolidated Long-Term Lease Rentals” means, for any period, the sum of the minimum amount of rental and other obligations of the Company and its Subsidiaries required to be paid during such period under all leases of real or personal property (other than Capitalized Leases) having a term (including any required renewals or extensions or any renewals or extensions at the option of the lessor or lessee) of one year or more after the commencement of the initial term, determined on a consolidated basis in accordance with GAAP.
Consolidated Net Income” means, for any period, the net income (or deficit) of the Company and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, but excluding in any event (a) any extraordinary gain or loss (net of any tax effect), (b) cash distributions received by the Company or any Subsidiary from any Eligible Joint Venture and (c) net earnings of any Person (other than a Subsidiary) in which the Company or any Subsidiary has an

    




ownership interest unless such net earnings shall have actually been received by the Company or such Subsidiary in the form of cash distributions.
Consolidated Net Income Available for Fixed Charges” means, for any period, Consolidated Net Income plus, to the extent deducted in determining such Consolidated Net Income, (a) provisions for income taxes, (b) Consolidated Fixed Charges, (c) to the extent not already included in Consolidated Net Income, dividends and distributions actually received in cash during such period from Persons that are not Subsidiaries of the Company, (d) retention bonuses paid to officers, directors and employees of the Company and its Subsidiaries in connection with the Transaction not to exceed $25,000,000, (e) any charges, fees and expenses incurred in connection with the Transaction, the transactions related thereto, and any related issuance of Indebtedness or equity, whether or not successful, (f) charges, expenses and losses incurred in connection with restructuring and integration activities in connection with the Transaction, including in connection with closures of certain facilities and termination of leases, (g) non-cash compensation expenses for management or employees to the extent deducted in computing Consolidated Net Income, (h) expenses incurred in connection with the Shaw Acquisition and relating to termination and severance as to, or relocation of, officers, directors and employees not exceeding $110,000,000, and (i) equity earnings booked or recognized by the Company or any of its Subsidiaries from Eligible Joint Ventures not to exceed 15% (or such lower percentage as may be set forth in the Note Purchase Agreements) of EBITDA of the Company pursuant to clauses (a) through (i) of the definition thereof for such period.
Consolidated Net Worth” means, at a particular date, all amounts which would be included under shareholders’ or members’ equity on the consolidated balance sheet for the Company and its consolidated Subsidiaries plus any preferred stock of the Company to the extent that it has not been redeemed for indebtedness, as determined in accordance with Agreement Accounting Principles.
Contaminant” means any waste, pollutant, hazardous substance, toxic substance, hazardous waste, special waste, petroleum or petroleum-derived substance or waste, asbestos, polychlorinated biphenyls (“PCBs”), or any constituent of any such substance or waste, and includes but is not limited to these terms as defined in Environmental, Health or Safety Requirements of Law.
Contingent Obligation”, as applied to any Person, means any Contractual Obligation, contingent or otherwise, of that Person with respect to any Indebtedness of another or other obligation or liability of another, including, without limitation, any such Indebtedness, obligation or liability of another directly or indirectly guaranteed, endorsed (otherwise than for collection or deposit in the ordinary course of business), co-made or discounted or sold with recourse by that Person, or in respect of which that Person is otherwise directly or indirectly liable, including Contractual Obligations (contingent or otherwise) arising through any agreement to purchase, repurchase, or otherwise acquire such Indebtedness, obligation or liability or any security therefor, or to provide funds for the payment or discharge thereof (whether in the form of loans, advances, stock purchases, capital contributions or otherwise), or to maintain solvency, assets, level of income, or other financial condition, or to make payment other than for value received. The amount of any Contingent Obligation shall be equal to the present value of the portion of the obligation so guaranteed or otherwise supported, in the case of known recurring obligations, and the maximum reasonably

    




anticipated liability in respect of the portion of the obligation so guaranteed or otherwise supported assuming such Person is required to perform thereunder, in all other cases.
Continuing Director” means, with respect to any person as of any date of determination, any member of the board of directors of such Person who (a) was a member of such board of directors on the Closing Date, or (b) was nominated for election or elected to such board of directors with the approval of the required majority of the Continuing Directors who were members of such board at the time of such nomination or election; provided that an individual who is so elected or nominated in connection with a merger, consolidation, acquisition or similar transaction shall not be a Continuing Director unless such individual was a Continuing Director prior thereto.
Contractual Obligation”, as applied to any Person, means any provision of any equity or debt securities issued by that Person or any indenture, mortgage, deed of trust, security agreement, pledge agreement, guaranty, contract, undertaking, agreement or instrument, in any case in writing, to which that Person is a party or by which it or any of its properties is bound, or to which it or any of its properties is subject.
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.
Controlled Group” means the group consisting of (a) any corporation which is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) as the Company; (b) a partnership or other trade or business (whether or not incorporated) which is under common control (within the meaning of Section 414(c) of the Code) with the Company; and (c) a member of the same affiliated service group (within the meaning of Section 414(m) of the Code) as the Company, any corporation described in clause (a) above or any partnership or trade or business described in clause (b) above.
Customary Permitted Liens” means:
(a)    Liens (other than Environmental Liens and Liens in favor of the IRS or the PBGC) with respect to the payment of taxes, assessments or governmental charges in all cases which are not yet due or (if foreclosure, distraint, sale or other similar proceedings shall not have been commenced or any such proceeding after being commenced is stayed) which are being contested in good faith by appropriate proceedings properly instituted and diligently conducted and with respect to which adequate reserves or other appropriate provisions are being maintained in accordance with Agreement Accounting Principles;
(b)    statutory Liens of landlords and Liens of suppliers, mechanics, carriers, materialmen, warehousemen, service providers or workmen and other similar Liens imposed by law created in the ordinary course of business for amounts not yet due or which are being contested in good faith by appropriate proceedings properly instituted

    




and diligently conducted and with respect to which adequate reserves or other appropriate provisions are being maintained in accordance with Agreement Accounting Principles;
(c)    Liens (other than Environmental Liens and Liens in favor of the IRS or the PBGC) incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other types of social security benefits or to secure the performance of bids, tenders, sales, contracts (other than for the repayment of borrowed money), surety, appeal and performance bonds; provided that (i) all such Liens do not in the aggregate materially detract from the value of the Company’s or its Subsidiary’s assets or property taken as a whole or materially impair the use thereof in the operation of the businesses taken as a whole, and (ii) all Liens securing bonds to stay judgments or in connection with appeals do not secure at any time an aggregate amount exceeding $5,000,000;
(d)    Liens arising with respect to zoning restrictions, easements, encroachments, licenses, reservations, covenants, rights-of-way, utility easements, building restrictions and other similar charges, restrictions or encumbrances on the use of real property which do not in any case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of the Company or any of its respective Subsidiaries;
(e)    Liens of attachment or judgment with respect to judgments, writs or warrants of attachment, or similar process against the Company or any of its Subsidiaries which do not constitute a Default under Section 8.01(h) hereof; and
(f)    any interest or title of the lessor in the property subject to any operating lease entered into by the Company or any of its Subsidiaries in the ordinary course of business.
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 Laws of the United States or other applicable jurisdictions from time to time in effect.
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 an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per annum; provided, however, that with respect to a Eurodollar 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.
Defaulting Lender” means, subject to Section 2.13(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Company 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 or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, (b) has notified the Company or the Administrative Agent 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 (3) Business Days after written request by the Administrative Agent or the Company, to confirm in writing to the Administrative Agent and the Company 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 Company), 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 for the avoidance of doubt, a Lender shall not be a Defaulting Lender solely by virtue of (i) the ownership or acquisition of any Capital Stock in that Lender or any direct or indirect parent company thereof by a Governmental Authority or (ii) in the case of a Solvent Person, the precautionary appointment of an administrator, guardian, custodian or other similar official by a Governmental Authority under or based on the Law of the country where such Person is subject to home jurisdiction supervision if applicable Law requires that such appointment not be publicly disclosed, in any such case, so long as such ownership interest or where such action (as applicable) 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 2.13(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 Company and each Lender promptly following such determination.
Designated Hedging Agreement” has the meaning specified in Section 11.07.
Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is the subject of any Sanction.
Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

    




Disqualified Stock” means any Capital 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 redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is ninety-one (91) days after the Maturity Date.
DOL” means the United States Department of Labor and any Person succeeding to the functions thereof.
Dollar” and “$” mean lawful money of the United States.
Domestic Subsidiary” means any Subsidiary of the Company (a) that is organized under the laws of the United States, any state thereof or the District of Columbia and (b) substantially all of the operations of which are conducted within the United States.
EBIT” means, for any period, on a consolidated basis for the Company and its Subsidiaries, the sum of the amounts for such period, without duplication, calculated in each case in accordance with Agreement Accounting Principles, of (a) Consolidated Net Income, plus (b) Interest Expense to the extent deducted in computing Consolidated Net Income, plus (c) charges against income for foreign, federal, state and local taxes to the extent deducted in computing Consolidated Net Income, plus (d) any other non-recurring non-cash charges (excluding any such non-cash charges to the extent any such non-cash charge becomes, or is expected to become, a cash charge in a later period) to the extent deducted in computing Consolidated Net Income, plus (e) extraordinary losses incurred other than in the ordinary course of business to the extent deducted in computing Consolidated Net Income, minus (f) any non-recurring non-cash credits to the extent added in computing Consolidated Net Income, minus (g) extraordinary gains realized other than in the ordinary course of business to the extent added in computing Consolidated Net Income.
EBITDA” means, for any period, on a consolidated basis for the Company and its Subsidiaries, the sum of the amounts for such period, without duplication, calculated in each case in accordance with Agreement Accounting Principles, of (a) EBIT, plus (b) depreciation expense to the extent deducted in computing Consolidated Net Income, plus (c) amortization expense, including, without limitation, amortization of goodwill and other intangible assets to the extent deducted in computing Consolidated Net Income, plus (d) non-cash compensation expenses for management or employees to the extent deducted in computing Consolidated Net Income, plus (e) to the extent not already included in Consolidated Net Income, dividends and distributions actually received in cash during such period from Persons that are not Subsidiaries of the Company, plus (f) retention bonuses paid to officers, directors and employees of the Company and its Subsidiaries in connection with the Transaction not to exceed $25,000,000, plus (g) any charges, fees and expenses incurred in connection with the Transaction, the transactions related thereto, and any related issuance of Indebtedness or equity, whether or not successful, plus (h) charges, expenses and losses incurred in connection with restructuring and integration activities in connection with the Transaction, including in connection with closures of certain facilities and termination of leases, plus (i) expenses incurred in connection with the Shaw Acquisition and relating to termination and severance as to, or relocation of, officers, directors and employees not exceeding $110,000,000, and plus (j) equity earnings booked or recognized by the Company or any of its Subsidiaries from

    




Eligible Joint Ventures not to exceed 15% (or such lower percentage as may be set forth in the Note Purchase Agreements) of EBITDA of the Company pursuant to clauses (a) through (i) of this definition for such period.
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 is primarily engaged in the business of commercial banking and that (a) is a Lender or an Affiliate of a Lender, (b) shall have senior unsecured long-term debt ratings which are rated at least BBB (or the equivalent) as publicly announced by S&P or Fitch Investors Services, Inc. or Baa2 (or the equivalent) as publicly announced by Moody’s or (c) shall otherwise be reasonably acceptable to the Administrative Agent.
Eligible Joint Venture” means, at each time of determination, a joint venture of the Company or any of its Subsidiaries that has been designated as such to the Administrative Agent (a) for which annual unaudited financial statements and quarterly unaudited financial statements have been delivered to the Administrative Agent and the Lenders, in each case such financial statements prepared in accordance with GAAP and otherwise in form and substance reasonably satisfactory to the Administrative Agent, (b) of which between a 20% and 50% interest in the profits or capital thereof is owned by the Company or one or more of its Subsidiaries, or the Company and one or more of its Subsidiaries, (c) for which the Eligible Joint Venture Leverage Ratio of such joint venture is less than 1.00 to 1.00, and (d) that is validly existing under the Laws of its jurisdiction of organization or formation (or equivalent); provided, however, that there may not be more than ten (10) designated Eligible Joint Ventures at any time.
Eligible Joint Venture Consolidated Net Income” means, for any period, the net income (or deficit) of any joint venture of the Company and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, but excluding in any event (a) any extraordinary gain or loss (net of any tax effect) and (b) net earnings of any Person (other than a Subsidiary) in which such joint venture or any Subsidiary has an ownership interest unless such net earnings shall have actually been received by such joint venture or such Subsidiary in the form of cash distributions.
Eligible Joint Venture EBITDA” means, for any period, for any joint venture of the Company or any of its Subsidiaries, an amount equal to Eligible Joint Venture Consolidated Net Income for such period, plus (a) the following to the extent deducted in calculating such Eligible

    




Joint Venture Consolidated Net Income: (i) Eligible Joint Venture Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income taxes payable by such joint venture for such period, (iii) depreciation and amortization expense and (iv) other non-recurring expenses of such joint venture reducing such Eligible Joint Venture Consolidated Net Income which do not represent a cash item in such period or any future period, and minus (b) the following to the extent included in calculating such Eligible Joint Venture Consolidated Net Income: (i) Federal, state, local and foreign income tax credits of such joint venture for such period and (ii) all non-cash items increasing Eligible Joint Venture Consolidated Net Income for such period.
Eligible Joint Venture Interest Charges” means, for any period, for any joint venture of the Company or any of its Subsidiaries, the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses of such joint venture in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, and (b) the portion of rent expense of such joint venture with respect to such period under capital leases that is treated as interest in accordance with GAAP.
Eligible Joint Venture Leverage Ratio” means, as of any date of determination, for any joint venture of the Company, the ratio of (a) Indebtedness for such joint venture of the Company or any of its Subsidiaries, on a consolidated basis, to (b) Eligible Joint Venture EBITDA for the period of the four prior fiscal quarters ending on or most recently ended prior to such date.
Environmental, Health or Safety Requirements of Law” means all Requirements of Law derived from or relating to foreign, federal, state and local laws or regulations relating to or addressing pollution or protection of the environment, or protection of worker health or safety, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., and the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq., in each case including any amendments thereto, any successor statutes, and any regulations or guidance promulgated thereunder, and any state or local equivalent thereof.
Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Company, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
Environmental Lien” means a lien in favor of any Governmental Authority for (a) any liability under Environmental, Health or Safety Requirements of Law, or (b) damages arising from, or costs incurred by such Governmental Authority in response to, a Release or threatened Release of a Contaminant into the environment.

    




Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock). Equity Interests will not include any Incentive Arrangements or obligations or payments thereunder.
ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time including (unless the context otherwise requires) any rules or regulations promulgated thereunder.
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.
Eurodollar Rate” means:
(a)    for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the London Interbank Offered Rate (“LIBOR”) or a comparable or successor rate, which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two (2) Business 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; and
(b)    for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two (2) Business Days prior to such date for U.S. Dollar deposits with a term of one month commencing that day;
provided that in no event shall such rate be less than 0%; provided, further that to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the approved rate shall be applied to the applicable Interest Period in a manner consistent with market practice; and provided, further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.
Eurodollar Rate Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of “Eurodollar Rate”.
Event of Default” has the meaning specified in Section 8.01.
Excluded Foreign Subsidiary” means any Foreign Subsidiary other than those listed as Foreign Subsidiaries on Schedule 1.01A.
Excluded Joint Venture” means a Subsidiary that is a joint venture or an unincorporated association that is not required to become a Guarantor pursuant to Section 6.13.

    




Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Loan Party of, or the grant by such Loan Party 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 Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 10.20 and any other “keepwell, support or other agreement” for the benefit of such Loan Party and any and all guarantees of such Loan Party’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Loan Party, or a grant by such Loan Party 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, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Company under Section 10.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii) or (c), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.
Existing 2012 Term Loan Credit Agreement” means that certain Term Loan Agreement dated as of December 21, 2012 by and among the Company, the Borrower, as borrower, the lenders party thereto and Bank of America, N.A., as administrative agent, in each case, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
Existing 2013 Revolving Credit Agreement” means that certain Credit Agreement dated as of October 28, 2013 by and among the Company, the Borrower and certain other Subsidiaries of the Company party thereto, as borrowers, the lenders party thereto and Bank of America, N.A., as administrative agent, in each case, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
Existing 2015 Revolving Credit Agreement” means that certain Amended and Restated Revolving Credit Agreement dated as of July 8, 2015 by and among the Company, the Borrower and certain other Subsidiaries of the Company party thereto, as borrowers, the lenders party thereto

    




and Bank of America, N.A., as administrative agent, in each case, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
Facility” means (a) on or prior to the Closing Date, the aggregate amount of the Commitments at such time and (b) thereafter, the Total Outstandings.

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, any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to such intergovernmental agreement.
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 Letter” means the letter agreement, dated May 21, 2015, among the Company, the Borrower, the Administrative Agent and Merrill Lynch, Pierce, Fenner & Smith Incorporated.
Financial Officer” means any of the chief financial officer, principal accounting officer, treasurer or controller of the Company, acting singly.
Foreign Employee Benefit Plan” means any employee benefit plan as defined in Section 3(3) of ERISA which is maintained or contributed to for the benefit of the employees of the Company, any of its respective Subsidiaries or any members of its Controlled Group and is not covered by ERISA pursuant to ERISA Section 4(b)(4).
Foreign Lender” means a Lender that is not a U.S. Person. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
Foreign Pension Plan” means any employee benefit plan as described in Section 3(3) of ERISA for which the Company or any member of its Controlled Group is a sponsor or administrator and which (a) is maintained or contributed to for the benefit of employees of the Company, any of its respective Subsidiaries or any member of its Controlled Group, (b) is not covered by ERISA pursuant to Section 4(b)(4) of ERISA, and (c) under applicable local law, is required to be funded through a trust or other funding vehicle.

    




Foreign Subsidiary” means a Subsidiary of the Company which is not a Domestic Subsidiary.
Freeport Joint Ventures” means the joint ventures related to the Freeport Liquefaction Project.
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.
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).
Guaranteed Obligations” has the meaning specified in Section 11.01(a).
Guarantors” means, collectively, (a) the Subsidiary Guarantors, (b) the Company and (c) with respect to the payment and performance by each Specified Loan Party of its obligations under its Guaranty with respect to all Hedging Obligations under Designated Hedging Agreements, the Borrower.
Guaranty” means each of (a) the guaranty by the Company of all of the Obligations of the Borrower pursuant to Article XI of this Agreement and (b) the Subsidiary Guaranty, in each case, as amended, restated, supplemented or otherwise modified from time to time.
Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
Hedge Bank” means any Person that, (a) at the time it enters into a Hedging Obligation not prohibited by this Agreement, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Hedging Obligation not prohibited by this Agreement, in each case, in its capacity as a party to such Hedging Obligation.
Hedging Arrangements” has the meaning specified in “Hedging Obligations” below.

    




Hedging Obligations” of a Person means any and all obligations of such Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (a) any and all agreements, devices or arrangements designed to protect at least one of the parties thereto from the fluctuations of interest rates, commodity prices, exchange rates or forward rates applicable to such party’s assets, liabilities or exchange transactions, including, but not limited to, dollar-denominated or cross-currency interest rate exchange agreements, forward currency exchange agreements, interest rate cap or collar protection agreements, forward rate currency or interest rate options, puts and warrants or any similar derivative transactions (“Hedging Arrangements”), and (b) any and all cancellations, buy backs, reversals, terminations or assignments of any of the foregoing.
Incentive Arrangements” means any stock ownership, restricted stock, stock option, stock appreciation rights, “phantom” stock plans, employment agreements, non-competition agreements, subscription and stockholders agreements and other incentive and bonus plans and similar arrangements made in connection with the retention of executives, officers or employees of the Company and its Subsidiaries.
Incremental Effective Date” has the meaning specified in Section 2.12(d).
Incremental Loan Notice” has the meaning specified in Section 2.12(b).
Incremental Loans” has the meaning specified in Section 2.12(a).
Indebtedness” of a Person means, without duplication, such Person’s (a) obligations for borrowed money, (b) obligations representing the deferred purchase price of property or services (other than (i) accounts payable arising in the ordinary course of such Person’s business payable on terms customary in the trade, and (ii) purchase price adjustments, earnouts or other similar forms of contingent purchase prices), (c) obligations, whether or not assumed, secured by Liens or payable out of the proceeds or production from property or assets now or hereafter owned or acquired by such Person, (d) obligations which are evidenced by notes, acceptances or other instruments, (e) Capitalized Lease Obligations, (f) Contingent Obligations, (g) obligations with respect to any letters of credit, bank guarantees and similar instruments, including, without limitation, Financial Letters of Credit and Performance Letters of Credit (in each case, under and as defined in each of the Existing 2013 Revolving Credit Agreement and the Existing 2015 Revolving Credit Agreement), and all reimbursement agreements related thereto, (h) Off-Balance Sheet Liabilities and (i) Disqualified Stock.
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 clause (a), Other Taxes.
Indemnitees” has the meaning specified in Section 10.04(b).
Information” has the meaning specified in Section 10.07.

    




Initial Loan” has the meaning specified in Section 2.01.
Interest Expense” means, for any period, the total gross interest expense of the Company and its consolidated Subsidiaries, whether paid or accrued, including, without duplication, the interest component of Capitalized Leases, commitment and letter of credit fees, the discount or implied interest component of Off-Balance Sheet Liabilities, capitalized interest expense, pay-in-kind interest expense, amortization of debt documents and net payments (if any) pursuant to Hedging Arrangements relating to interest rate protection, all as determined in conformity with Agreement Accounting Principles.
Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest Period for a Eurodollar 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; and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date.
Interest Period” means as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date seven days, one month, two months, three months or six months thereafter (or, subject to the Administrative Agent’s receipt of all Lenders’ consent, another period so long as such period is not more than twelve (12) months), as selected by the Borrower in its Borrowing/Election Notice, or such other period that is twelve months or less requested by the Borrower and consented to by all of the Lenders; 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, in the case of a Eurodollar Rate Loan, 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 pertaining to a Eurodollar Rate Loan 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.
Investment” means, with respect to any Person, (a) any purchase or other acquisition by that Person of any Indebtedness, Equity Interests or other securities, or of a beneficial interest in any Indebtedness, Equity Interests or other securities, issued by any other Person; (b) any purchase by that Person of all or substantially all of the assets of a business (whether of a division, branch, unit operation, or otherwise) conducted by another Person; and (c) any loan, advance (other than deposits with financial institutions available for withdrawal on demand, prepaid expenses, accounts receivable, advances to employees and similar items made or incurred in the ordinary course of business) or capital contribution actually invested by that Person to any other Person (but excluding any subsequent passive increases or accretions to the value of such initial capital contribution),

    




including all Indebtedness to such Person arising from a sale of property by such Person other than in the ordinary course of its business.
IRS” means the United States Internal Revenue Service.
Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
Lenders” means the lending institutions listed on the signature pages of this Agreement as a Lender and their respective successors and assigns.
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 Company and the Administrative Agent.
Leverage Ratio” has the meaning specified in Section 7.18(a).
LIBOR” has the meaning specified in the definition of Eurodollar Rate.
Lien” means any lien (statutory or other), mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance or preference, priority or security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, the interest of a vendor or lessor under any conditional sale, Capitalized Lease or other title retention agreement).
Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of an Initial Loan or an Incremental Loan. All Loans shall be denominated in Dollars.
Loan Documents” means this Agreement, each Note, the Fee Letter and each Guaranty, in each case, together with all amendments thereto from time to time.
Loan Parties” means, collectively, the Company, the Borrower and each Subsidiary Guarantor.
London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
Margin Stock” shall have the meaning ascribed to such term in Regulation U.
Material Adverse Effect” means a material adverse effect upon (a) the business, condition (financial or otherwise), operations, performance, properties or results of operations of the Company, any other Borrower, or the Company and its Subsidiaries, taken as a whole, (b) the collective ability of the Company or any of its Subsidiaries to perform their respective obligations under the Loan Documents, or (c) the ability of the Lenders or the Administrative Agent to enforce the Obligations;

    




it being understood and agreed that the occurrence of a Product Liability Event shall not constitute an event which causes a “Material Adverse Effect” unless and until the aggregate amount of, or attributable to, Product Liability Events (to the extent not covered by third-party insurance as to which the insured does not dispute coverage) exceeds, during any period of twelve (12) consecutive months, the greater of (x) $20,000,000 and (y) 20% of EBITDA (for the then most recently completed period of four fiscal quarters of the Company).
Material Indebtedness” is defined in Section 8.01(e).
Material Subsidiary” means, without duplication, (a) each Subsidiary Borrower and (b) any Subsidiary that directly or indirectly owns or Controls any Subsidiary Borrower or other Material Subsidiary and (c) any other Subsidiary (i) the consolidated net revenues of which for the most recent fiscal year of the Company for which audited financial statements have been delivered pursuant to Section 6.01(b) were greater than five percent (5%) of the Company’s consolidated net revenues for such fiscal year or (ii) the consolidated assets of which as of the end of such fiscal year were greater than five percent (5%) of the Company’s consolidated assets as of such date; provided that if at any time the aggregate amount of the consolidated net revenues or consolidated assets of all Subsidiaries that are not Material Subsidiaries exceeds twenty percent (20%) of the Company’s consolidated net revenues for any such fiscal year or twenty percent (20%) of the Company’s consolidated assets as of the end of any such fiscal year, the Company (or, in the event the Company has failed to do so within ten (10) days, the Administrative Agent) shall designate sufficient Subsidiaries as “Material Subsidiaries” to eliminate such excess, and such designated Subsidiaries shall for all purposes of this Agreement constitute Material Subsidiaries. For purposes of making the determinations required by this definition, (x) revenues and assets of Foreign Subsidiaries shall be converted into Dollars at the rates used in preparing the consolidated balance sheet of the Company included in the applicable financial statements and (y) revenues and assets of Excluded Joint Ventures shall be disregarded. The Material Subsidiaries on the Closing Date are identified in Schedule 1.01B hereto.
Maturity Date” means July 8, 2020; provided, however, that if such date is not a Business Day, the Maturity Date shall be the immediately preceding Business Day.
Maximum Accepted Incremental Participation” has the meaning specified in Section 2.12(b).
Maximum Incremental Availability” has the meaning specified in Section 2.12(a).
Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
Multiemployer Plan” means a “Multiemployer Plan” as defined in Section 4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years was, contributed to by either the Company or any member of the Controlled Group.
NEH” means Nuclear Energy Holdings, L.L.C., a Delaware limited liability company and wholly owned Subsidiary of the Company.

    




Net Cash Proceeds” means:
(a)    with respect to any Asset Sale, Disposition or Sale and Leaseback Transaction by any Person, (i) cash or Cash Equivalents (freely convertible into Dollars) received by such Person or any Subsidiary of such Person from such Asset Sale or Sale and Leaseback Transaction (including cash received as consideration for the assumption or incurrence of liabilities incurred in connection with or in anticipation of such Asset Sale, Disposition or Sale and Leaseback Transaction), after (A) provision for all income or other taxes measured by or resulting from such Asset Sale or Sale and Leaseback Transaction, (B) payment of all brokerage commissions and other fees and expenses and commissions related to such Asset Sale, Disposition or Sale and Leaseback Transaction, and (C) all amounts used to repay Indebtedness (and any premium or penalty thereon) secured by a Lien on any asset disposed of in such Asset Sale, Disposition or Sale and Leaseback Transaction or which is or may be required (by the express terms of the instrument governing such Indebtedness or by applicable law) to be repaid in connection with such Asset Sale, Disposition or Sale and Leaseback Transaction (including payments made to obtain or avoid the need for the consent of any holder of such Indebtedness); and (ii) cash or Cash Equivalents payments in respect of any other consideration received by such Person or any Subsidiary of such Person from such Asset Sale, Disposition or Sale and Leaseback Transaction upon receipt of such cash payments by such Person or such Subsidiary; and
(b)    with respect to the sale or issuance of any Capital Stock by the Company or any of its Subsidiaries, or the incurrence or issuance of any Indebtedness by the Company 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, fees and other reasonable and customary out-of-pocket expenses, incurred by Company or such Subsidiary in connection therewith.
Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 10.01 and (b) has been approved by the Required Lenders.
Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
Note” means a promissory note made by the Borrower in favor of a Lender evidencing Loans made by such Lender to the Borrower, substantially in the form of Exhibit B.
Note Purchase Agreements” means the 2012 Note Purchase Agreement and the 2015 Note Purchase Agreement.
NPA Notes” means senior notes in an aggregate original principal amount of up to $1,100,000,000 issued by the Borrower pursuant to the Note Purchase Agreements as set forth therein.
Obligations” means all Loans, advances, debts, liabilities, obligations, covenants and duties owing, by the Borrower or any of its Subsidiaries to the Administrative Agent, any Lender, the

    




Arrangers, any Affiliate of the Administrative Agent or any Lender, any Indemnitee, of any kind or nature, present or future, arising under this Agreement or any other Loan Document, whether or not evidenced by any note, guaranty or other instrument, whether or not for the payment of money, whether arising by reason of an extension of credit, loan, foreign exchange risk, guaranty, indemnification, or in any other manner, whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, now existing or hereafter arising and however acquired. The term includes, without limitation, all interest, charges, expenses, fees, attorneys’ fees and disbursements, paralegals’ fees (in each case whether or not allowed), and any other sum chargeable to the Company or any of its Subsidiaries under this Agreement or any other Loan Document, but excludes Hedging Obligations.
OFAC” means the Office of Foreign Assets Control.
Off-Balance Sheet Liabilities” of a Person means (a) any repurchase obligation or liability of such Person or any of its Subsidiaries with respect to Receivables sold by such Person or any of its Subsidiaries, (b) any liability of such Person or any of its Subsidiaries under any sale and leaseback transactions which do not create a liability on the consolidated balance sheet of such Person, (c) any liability of such Person or any of its Subsidiaries under any financing lease or so-called “synthetic lease” or “tax ownership operating lease” transaction, or (d) any obligations of such Person or any of its Subsidiaries arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the consolidated balance sheets of such Person and its Subsidiaries.
Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
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 3.06).

    




Outstanding Amount” means, on any date, the aggregate outstanding principal amount of the Loans after giving effect to any borrowings and prepayments or repayments of such Loans occurring on such date.
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.
Permitted Acquisition” has the meaning specified in Section 7.06.
Permitted Existing Contingent Obligations” means the Contingent Obligations of the Company and its Subsidiaries identified as such on Schedule 7.05 to this Agreement.
Permitted Existing Indebtedness” means the Indebtedness of the Company and its Subsidiaries identified as such on Schedule 7.01 to this Agreement.
Permitted Existing Investments” means the Investments of the Company and its Subsidiaries identified as such on Schedule 7.04 to this Agreement.
Permitted Existing Liens” means the Liens on assets of the Company and its Subsidiaries identified as such on Schedule 7.03 to this Agreement.
Permitted Refinancing” means, with respect to any Indebtedness (the “Refinanced Indebtedness”), any refinancings, refundings, renewals or extensions thereof (the “Refinancing Indebtedness” thereof); provided that (a) at the time of such refinancing, refunding, renewal or extension, no Default has occurred and is continuing, (b) the amount of such Refinancing Indebtedness does not exceed the amount of such Refinanced Indebtedness except by an amount equal to customary underwriting discounts, fees or commissions, expenses and prepayment premium (if any) incurred in connection with such refinancing, refunding, renewal or extension, plus any existing commitments unutilized under such Refinanced Indebtedness and (c) such Refinancing Indebtedness (i) has a weighted average maturity (measured as of the date of such refinancing, refunding, renewal or extension) and a maturity no shorter than that of such Refinanced Indebtedness, (ii) is not secured by any property or any Lien other than that (if any) securing such Refinanced Indebtedness, (iii) is not guaranteed by or secured by any property of any guarantor or other obligor which is not also a guarantor or obligor of such Refinanced Indebtedness, (iv) if such Refinanced Indebtedness is subordinated in right of payment to the Obligations, is subordinated in right of payment to the Obligations on terms no less favorable to the Lenders than those contained in the documentation governing such Refinanced Indebtedness, (v) does not have covenants, events of default or other material terms, taken as a whole, that are less favorable to the Loans Parties than those of the Refinanced Indebtedness and (vi) has an interest rate not exceeding the then-applicable market interest rate.
Permitted Sale and Leaseback Transactions” means (a)(i) any Sale and Leaseback Transaction of the Company’s administrative headquarters facility in The Woodlands, Texas or

    




(ii) any Sale and Leaseback Transaction (other than in connection with clause (a)(i)) of all or any portion of the Company’s other property, in each case on terms acceptable to the Administrative Agent and only to the extent that the aggregate amount of Net Cash Proceeds from all such Permitted Sale and Leaseback Transactions is less than or equal to $50,000,000 and (b) any Sale and Leaseback Transaction of the Company’s facility in Plainfield, Illinois.
Person” means any individual, corporation, firm, enterprise, partnership, trust, incorporated or unincorporated association, joint venture, joint stock company, limited liability company or other entity of any kind, or any government or political subdivision or any agency, department or instrumentality thereof.
Plan” means an employee benefit plan defined in Section 3(3) of ERISA, other than a Multiemployer Plan, in respect of which the Company or any member of the Controlled Group is, or within the immediately preceding six (6) years was, an “employer” as defined in Section 3(5) of ERISA.
Platform” has the meaning specified in Section 6.02.
Product Liability Event” means, solely in connection with asbestos-related claims and litigation, (a) the entry of one or more final judgments or orders against the Company or any Subsidiary, or (b) the Company or any Subsidiary (i) enters into settlements for the payment of money or (ii) pays any legal expenses associated with such judgment, orders or settlements and any and all other aspects of any claims and litigation associated therewith, and with respect to such judgments or orders, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of thirty (30) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect.
Project Bluefin” means, collectively, the acquisition by a direct, wholly owned subsidiary of Westinghouse Electric Company LLC (“WECLLC”) of all of the issued and outstanding shares of capital stock or membership interests of certain direct and indirect subsidiaries of the Company (the “Transferred Companies”) pursuant to that certain Purchase Agreement by and among the Company, the Transferred Companies, WECLLC and a direct, wholly owned subsidiary of WECLLC, as amended, and all transactions and Dispositions pursuant thereto and in connection therewith.
Project Jazz” means, collectively, the Disposition by the Company of the Capital Services business.
Proposed New Lender” has the meaning specified in Section 2.12(f).
Public Lender” has the meaning specified in Section 6.02.
Qualified ECP Guarantor” shall mean, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another person to qualify as an “eligible contract participant” at such time under §1a(18)(A)(v)(II) of the Commodity Exchange Act.

    




Qualified Securitization Financing” means the securitization of accounts receivables or other working capital assets of the Company or any of its Subsidiaries on customary market terms (including, without limitation, Standard Securitization Undertakings and a Receivables Repurchase Obligation) as determined in good faith by the Company to be in the aggregate commercially fair and reasonable to the Company and its Subsidiaries taken as a whole.
Receivable(s)” means and includes all of the Company’s and its consolidated Subsidiaries’ presently existing and hereafter arising or acquired accounts, accounts receivable, and all present and future rights of the Company or its Subsidiaries, as applicable, to payment for goods sold or leased or for services rendered (except those evidenced by instruments or chattel paper), whether or not they have been earned by performance, and all rights in any merchandise or goods which any of the same may represent, and all rights, title, security and guaranties with respect to each of the foregoing, including, without limitation, any right of stoppage in transit.
Receivables Repurchase Obligation” means any obligation of a seller of receivables in a Qualified Securitization Financing to repurchase receivables arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
Recipient” means the Administrative Agent or any Lender, as applicable.
Register” has the meaning specified in Section 10.06(c).
Regulation T” means Regulation T of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by and to brokers and dealers of securities for the purpose of purchasing or carrying margin stock (as defined therein).
Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by banks, non-banks and non-broker lenders for the purpose of purchasing or carrying Margin Stock applicable to member banks of the Federal Reserve System.
Regulation X” means Regulation X of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by foreign lenders for the purpose of purchasing or carrying margin stock (as defined therein).
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 any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration into the indoor or outdoor environment, including the movement of Contaminants through or in the air, soil, surface water or groundwater.
Reportable Event” means a reportable event as defined in Section 4043 of ERISA and the regulations issued under such section, with respect to a Plan, excluding, however, such events as to which the PBGC by regulation or otherwise waived the requirement of Section 4043(a) of ERISA that it be notified within thirty (30) days after such event occurs, provided, however, that a failure to meet the minimum funding standards of Section 412 of the Code and of Section 302 of ERISA shall be a Reportable Event regardless of the issuance of any such waiver of the notice requirement in accordance with either Section 4043(a) of ERISA or Section 412(d) of the Code.
Required Lenders” means, at any time, Lenders having Applicable Percentages representing more than 50% of the Total Outstandings of all Lenders. The Applicable Percentages of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
Requirements of Law” means, as to any Person, the charter and by-laws or other organizational or governing documents of such Person, and any law, rule or regulation, or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject including, without limitation, the Securities Act of 1933, the Securities Exchange Act of 1934, Regulations T, U and X, ERISA, the Fair Labor Standards Act, the Worker Adjustment and Retraining Notification Act, Americans with Disabilities Act of 1990, and any certificate of occupancy, zoning ordinance, building, environmental or land use requirement or permit or environmental, labor, employment, occupational safety or health law, rule or regulation, including Environmental, Health or Safety Requirements of Law.
Responsible Officer” means a Managing Director of the Company, or such other Person as authorized by a Managing Director, acting singly; solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01, the secretary or any assistant secretary of a Loan Party; and, solely for purposes of notices given pursuant to Article II, 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 or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and 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.
Restricted Payment” means (a) any dividend or other distribution, direct or indirect, on account of any Equity Interests of the Company or any of its Subsidiaries now or hereafter outstanding, except a dividend payable solely in such Person’s Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to purchase such Capital Stock, (b) any redemption, retirement, purchase or other acquisition for value, direct or indirect, of any Equity Interests of the Company or any of its Subsidiaries now or hereafter outstanding, other than in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary of the Company) of

    




other Equity Interests of the Company or any of its Subsidiaries (other than Disqualified Stock), (c) any payment or prepayment of principal of, or interest (whether in cash or as payment-in-kind), premium, if any, fees or other charges with respect to, any Indebtedness subordinated to the Obligations, or any redemption, purchase, retirement, defeasance, prepayment or other acquisition for value, direct or indirect, of any Indebtedness other than (i) the Obligations and (ii) any scheduled payments of principal of or interest with respect to Company’s Indebtedness issued pursuant to the Transaction Facilities, (d) any payment of a claim for the rescission of the purchase or sale of, or for material damages arising from the purchase or sale of, any Indebtedness (other than the Obligations) or any Equity Interests of the Company or any of its Subsidiaries, or of a claim for reimbursement, indemnification or contribution arising out of or related to any such claim for damages or rescission and (e) any payment in respect of a purchase price adjustment, earn-out or other similar form of contingent purchase price.
Sale and Leaseback Transaction” means any lease, whether an operating lease or a Capitalized Lease, of any property (whether real or personal or mixed), (a) which the Company or one of its Subsidiaries sold or transferred or is to sell or transfer to any other Person, or (b) which the Company or one of its Subsidiaries intends to use for substantially the same purposes as any other property which has been or is to be sold or transferred by the Company or one of its Subsidiaries to any other Person in connection with such lease.
Sanction(s)” means any sanction administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority.
S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc. and any successor thereto.
SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
Senior Secured Indebtedness” of a Person means, without duplication, such Person’s Adjusted Indebtedness hereunder and under each other Transaction Facility.
Shaw Acquisition” means the acquisition of The Shaw Group Inc. by the Company (by means of a merger of a Subsidiary thereof with and into The Shaw Group Inc.) as of February 13, 2013 pursuant to the Transaction Agreement.
Solvent” means, when used with respect to any Person, that at the time of determination:
(a)    the fair value of its assets (both at fair valuation and at present fair saleable value) is equal to or in excess of the total amount of its liabilities, including, without limitation, contingent liabilities; and
(b)    it is then able and expects to be able to pay its debts as they mature; and

    




(c)    it has capital sufficient to carry on its business as conducted and as proposed to be conducted.
With respect to contingent liabilities (such as litigation, guarantees and pension plan liabilities), such liabilities shall be computed at the amount which, in light of all the facts and circumstances existing at the time, represent the amount which can be reasonably be expected to become an actual or matured liability.
Specified Loan Party” means any Loan Party that is not an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section 10.21).
Standard Securitization Undertakings” means representations, warranties, undertakings, covenants, indemnities and guarantees of performance entered into by the Company or any Subsidiary thereof which the Company has determined in good faith to be customary in a Qualified Securitization Financing.
Subsidiary” means, as to any Person, any corporation, association or other business entity in which such Person or one or more of its Subsidiaries or such Person and one or more of its Subsidiaries owns sufficient equity or voting interests to enable it or them (as a group) ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such entity, and any partnership, limited liability company or joint venture if more than a 50% interest in the profits or capital thereof is owned by such Person or one or more of its Subsidiaries or such Person and one or more of its Subsidiaries (unless such partnership, limited liability company or joint venture can and does ordinarily take major business actions without the prior approval of such Person or one or more of its Subsidiaries). Unless the context otherwise clearly requires, any reference to a “Subsidiary” is a reference to a Subsidiary of the Company (excluding NEH).
Subsidiary Borrower(s)” means, at any time, any Designated Borrower under and as defined in each of the Existing 2013 Revolving Credit Agreement and the Existing 2015 Revolving Credit Agreement (in each case, other than the Borrower).
Subsidiary Guarantor(s)” means (a) each Subsidiary Borrower; (b) all of the Company’s Material Subsidiaries (other than any Excluded Foreign Subsidiary); (c) all Subsidiaries acquired or formed after the Closing Date which are Material Subsidiaries and which have or are required to have satisfied the provisions of Section 6.13(a); (d) all of the Company’s Subsidiaries which become Material Subsidiaries and which have satisfied or are required to have satisfied the provisions of Section 6.13(b); and (e) all other Subsidiaries which become Subsidiary Guarantors in satisfaction of the provisions of Section 6.13(c) or Section 7.15, in each case with respect to clauses (a) through (e) above, and together with their respective successors and assigns.
Subsidiary Guaranty” means that certain Subsidiary Guaranty, dated as of the date hereof executed by each Subsidiary Guarantor and any and all supplements and joinders thereto executed from time to time by each additional Subsidiary Guarantor in favor of the Administrative Agent in substantially the form of Exhibit F attached hereto, as the same may be amended, restated, supplemented or otherwise modified from time to time.

    




Substantial Portion” means, with respect to the consolidated assets of the Company and its Subsidiaries, assets which (a) represent more than 10% of the consolidated assets of the Company and its Subsidiaries as would be shown in the consolidated financial statements of the Company and its Subsidiaries as at the beginning of the twelve-month period ending with the month in which such determination is made, or (b) are responsible for more than 10% of the consolidated net sales or of the consolidated net income of the Company and its Subsidiaries as reflected in the financial statements referred to in clause (a) above.
Supplement” is defined in Section 6.13(a).
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.
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.
Termination Event” means (a) a Reportable Event with respect to any Benefit Plan; (b) the withdrawal of the Company or any member of the Controlled Group from a Benefit Plan during a plan year in which the Company or such Controlled Group member was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or the cessation of operations which results in the termination of employment of twenty percent (20%) of Benefit Plan participants who are employees of the Company or any member of the Controlled Group; (c) the imposition of an obligation on the Company or any member of the Controlled Group under Section 4041 of ERISA to provide affected parties written notice of intent to terminate a Benefit Plan in a distress termination described in Section 4041(c) of ERISA; (d) the institution by the PBGC or any similar foreign governmental authority of proceedings to terminate a Benefit Plan or Foreign Pension Plan; (e) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Benefit Plan; (f) that a foreign governmental authority shall appoint or institute proceedings to appoint a trustee to administer any Foreign Pension Plan in place of the existing administrator, or (g) the partial or complete withdrawal of the Company or any member of the Controlled Group from a Multiemployer Plan or Foreign Pension Plan.
Threshold Amount” means an amount equal to the lesser of (a) $75,000,000 and (b) the equivalent threshold amount set forth in the Note Purchase Agreements (or any related document thereto).
Total Outstandings” means the aggregate Outstanding Amount of all Loans.
Transaction” means the Shaw Acquisition, the payment of fees and expenses in connection therewith, any issuance by the Company of its common equity to consummate the Transaction or refinance any debt issued to consummate the Transaction, and any combination of the issuance and placement of the NPA Notes or amendment of the 2012 Note Purchase Agreement, the entering into and funding of the Existing 2012 Term Loan Credit Agreement, the entering into and funding of the Existing 2013 Revolving Credit Agreement, the entering into and funding of the Existing 2015

    




Revolving Credit Agreement and the entering into and funding under the credit facility established under this Agreement.
Transaction Agreement” means that certain transaction agreement dated as of July 30, 2012 by and among the Company, Crystal Merger Subsidiary Inc. and The Shaw Group Inc.
Transaction Facilities” means the Facility, the Existing 2013 Revolving Credit Agreement, the Existing 2015 Revolving Credit Agreement and the issuance of the NPA Notes pursuant to the Note Purchase Agreements.
Type” means, with respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.
United States” and “U.S.” mean the United States of America.
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(e)(ii)(B)(III).
Withholding Agent” means any Loan Party and the Administrative Agent.
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.
2012 Note Purchase Agreement” means that certain Note Purchase and Guarantee Agreement dated as of December 27, 2012, among the Initial Borrower, the Company and the institutional investors named therein, as amended, restated, amended and restated, supplemented or otherwise modified.
2015 Note Purchase Agreement” means that certain Note Purchase and Guarantee Agreement, among the Initial Borrower, the Company and the institutional investors named therein, as amended, restated, amended and restated, supplemented or otherwise modified.
1.02    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 Organization 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.
(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.
1.03    Accounting Terms. Except as provided to the contrary herein, all accounting terms used herein shall be interpreted and all accounting determinations hereunder shall be made in accordance with Agreement Accounting Principles. If any changes in generally accepted accounting principles are hereafter required or permitted and are adopted by the Company or any of its Subsidiaries with the agreement of its independent certified public accountants and such changes result in a change in the method of calculation of any of the financial covenants, tests, restrictions or standards herein or in the related definitions or terms used therein (“Accounting Changes”), the parties hereto agree, at the Company’s request, to enter into negotiations, in good faith, in order to amend such provisions in a credit neutral manner so as to reflect equitably such changes with the desired result that the criteria for evaluating the Company’s and its Subsidiaries’ financial condition shall be the same after such changes as if such changes had not been made; provided, however, until such provisions are amended in a manner reasonably satisfactory to the Administrative Agent and the Required Lenders, no Accounting Change shall be given effect in such calculations and all financial statements and reports required to be delivered hereunder shall be prepared in accordance with Agreement Accounting Principles without taking into account such Accounting Changes. In the event such amendment is entered into, all references in this Agreement to Agreement Accounting Principles shall mean generally accepted accounting principles as of the date of such amendment. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Accounting Standards Codification 825-10-25 (previously referred to as Statement of Financial Accounting Standards 159) (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or

    




effect) to value any Indebtedness or other liabilities of the Company or any of its Subsidiaries at “fair value”, as defined therein.
1.04    Rounding. Any financial ratios required to be maintained by the Company 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).
1.05    Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Central time (daylight or standard, as applicable).
1.06    Supplemental Disclosure. At any time at the request of the Administrative Agent and at such additional times as the Company determines, the Company shall supplement each schedule or representation herein or in the other Loan Documents with respect to any matter hereafter arising which, if existing or occurring at the date of this Agreement, would have been required to be set forth or described in such schedule or as an exception to such representation or which is necessary to correct any information in such schedule or representation which has been rendered inaccurate thereby. Notwithstanding that any such supplement to such schedule or representation may disclose the existence or occurrence of events, facts or circumstances which are either prohibited by the terms of this Agreement or any other Loan Documents or which result in the breach of any representation or warranty, such supplement to such schedule or representation shall not be deemed either an amendment thereof or a waiver of such breach unless expressly consented to in writing by Administrative Agent and the Required Lenders, and no such amendments, except as the same may be consented to in a writing which expressly includes a waiver, shall be or be deemed a waiver by the Administrative Agent or any Lender of any Default disclosed therein. Any items disclosed in any such supplemental disclosures shall be included in the calculation of any limits, baskets or similar restrictions contained in this Agreement or any of the other Loan Documents.
ARTICLE II    
THE COMMITMENTS AND BORROWINGS
2.01    Loans. Subject to the terms and conditions set forth herein, each Lender severally agrees to make a single loan to the Borrower, in Dollars, on the Closing Date in an amount not to exceed the amount of such Lender’s Applicable Percentage of the Facility on such date (each such loan, an “Initial Loan”). Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
2.02    Borrowings, Conversions and Continuations of Loans.
(a)    Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurodollar 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 Borrowing/Election Notice; provided that any telephone notice must be confirmed promptly by delivery to the Administrative Agent of a Borrowing/Election Notice. Each such notice must be received by the Administrative Agent not later than 10:00 a.m. (i) three (3) Business Days prior to the requested date of any

    




Borrowing of, conversion to or continuation of Eurodollar Rate Loans and (ii) on the requested date of any Borrowing of Base Rate Loans. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $4,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each Borrowing/Election Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto, and (vi) the Borrower. If the Borrower fails to specify a Type of Loan in a Borrowing/Election 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 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 Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Borrowing/Election Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
(b)    Following receipt of a Borrowing/Election 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 Company, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans, as described in the preceding subsection. In the case of a Borrowing, each Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 12:00 noon on the Business Day specified in the applicable Borrowing/Election Notice. Upon satisfaction of the applicable conditions set forth in Section 4.01, 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 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 the Administrative Agent by the Borrower.
(c)    Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of a Default, no Loans may be requested as, converted to or continued as Eurodollar 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 Eurodollar 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.

    




(e)    After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than ten Interest Periods in effect with respect to the Facility.
2.03    Prepayments.
(a)    Optional. The Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Loans in whole or in part without premium or penalty; provided that (i) such notice must be in a form reasonably acceptable to the Administrative Agent and be received by the Administrative Agent (A) three (3) Business Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 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 specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage 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. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Subject to Section 2.13, each such prepayment shall be applied to the Loans of the Lenders in accordance with their respective Applicable Percentages. Borrowings that are prepaid may not be reborrowed.
(b)    Mandatory.
(i)    If the Company or any of its Subsidiaries Disposes of any property in accordance with and permitted by Section 7.02(f) which results in the realization by such Person of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clause (b)(iv) below).
(ii)    Upon the incurrence or issuance by the Company or any of its Subsidiaries of any unsecured Indebtedness and/or Indebtedness that is junior to the Indebtedness incurred hereunder, in each case pursuant to a capital markets transaction or any substitutions thereof, after the Amendment No. 3 Closing Date, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Company or such Subsidiary (such prepayments to be applied as set forth in clause (b)(iv) below).
(iii)    Upon the sale or issuance by the Company or any of its Subsidiaries of any of its Capital Stock after the Amendment No. 3 Closing Date (other than any sale or issuance of Capital Stock in connection with employee benefit arrangements), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds

    




received therefrom immediately upon receipt thereof by the Company or such Subsidiary (such prepayments to be applied as set forth in clause (b)(iv) below).
(iv)    Each prepayment pursuant to the foregoing provisions of this Section 2.03(b) shall be applied (x) in the case of an at-the-market (ATM) offering pursuant to clause (b)(iii) above, on the last day of each March, June, September and December and (y) in all other cases, promptly (but in any event within 30 days upon such receipt of proceeds), and on a pro rata basis based on outstanding balances under each of this Agreement, the Existing 2013 Revolving Credit Agreement, the Existing 2015 Revolving Credit Agreement and the Note Purchase Agreements, in each case, as of the last day of the fiscal quarter immediately preceding such Disposition or incurrence of Indebtedness or issuance of Capital Stock, as applicable, to prepay (A) Loans hereunder, on the one hand, and (B) certain outstanding amounts owing under the NPA Notes, on the other hand, in each case, it being agreed and understood that any portion of such proceeds offered to, but declined by, the holders of the NPA Notes (after giving effect to all offers of such proceeds to the other holders of the NPA Notes) shall be used to prepay Loans hereunder.
2.04    Reduction of Commitments. The Aggregate Commitments shall be automatically and permanently reduced to zero on the Closing Date.
2.05    Repayment of Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the Lenders the principal amount of the Loans in consecutive quarterly installments equal to $18,750,000. The first such installment shall be paid on or before June 30, 2017, and the remaining installments shall be paid on or before the last day of each March, June, September and December thereafter; provided that if any such payment would fall on a day other than a Business Day, the payment shall be made on the immediately preceding Business Day. The final installment shall be payable on the Maturity Date and shall be equal to the aggregate Outstanding Amount of the Loans on the Maturity Date.
2.06    Interest.
(a)    Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; and (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.
(b)    During the occurrence and continuance of an Event of Default, upon the request of the Required Lenders, 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 Laws; provided that during the continuation of an Event of Default under Section 8.01(a)(i) such interest rate shall be automatically applicable without any action of the Required Lenders.
(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. Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
2.07    Fees.
(a)    The Company shall pay to each Arranger and the Administrative Agent for their own respective accounts, in Dollars, fees in the amounts and at the times specified in the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
(b)    The Company and 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.
2.08    Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.
(a)    All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Eurodollar 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 2.10(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)    If, as a result of any restatement of or other adjustment to the financial statements of the Company or for any other reason, the Company or the Lenders determine that (i) the Leverage Ratio as calculated by the Company as of any applicable date was inaccurate and (ii) a proper calculation of the Leverage Ratio would have resulted in higher pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically and without further action by the Administrative Agent or any Lender), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This paragraph shall not limit the rights of the Administrative Agent or any Lender, as the case may be, under Section 2.06(b) or under Article VIII. The Company’s and the Borrower’s obligations under this paragraph shall survive the termination of the Aggregate Commitments and the repayment of all other Obligations hereunder.
2.09    Evidence of Debt. The Loans 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 Loans 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. Upon 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.
2.10    Payments Generally; Administrative Agent’s Clawback.
(a)    General. All payments to be made by the Borrower shall be made free and clear of 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 applicable Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. 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 after 2:00 p.m. shall in each case 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)    (1)    Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 11:00 a.m. on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of