Attached files

file filename
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-10.10 - EXHIBIT 10.10 - CHICAGO BRIDGE & IRON CO N Va20170331ex1010.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-10.1 - EXHIBIT 10.1 - CHICAGO BRIDGE & IRON CO N Va20170331ex101.htm
10-Q - FORM 10-Q - CHICAGO BRIDGE & IRON CO N Va2017033110q.htm

EXECUTION VERSION


SIXTH AMENDMENT AND WAIVER
TO NOTE PURCHASE AND GUARANTEE AGREEMENT
This Sixth Amendment and Waiver to Note Purchase and Guarantee Agreement (this “Amendment”), dated as of May 8, 2017, is made by and among CHICAGO BRIDGE & IRON COMPANY (DELAWARE), a Delaware corporation (the “Company”), CHICAGO BRIDGE & IRON COMPANY N.V., a corporation incorporated under the laws of The Netherlands (the “Parent Guarantor” and, together with the Company, the “Obligors”), and each of the institutions set forth on the signature pages to this Amendment (collectively, the “Noteholders”).
RECITALS:
A.    The Obligors and each of the Noteholders have heretofore entered into the Note Purchase and Guarantee Agreement dated as of December 27, 2012 (as amended, amended and restated, supplemented or otherwise modified, the “Note Purchase Agreement”), pursuant to which the Company issued (i) U.S. $150,000,000 aggregate principal amount of its 4.15% Senior Notes, Series A, due December 27, 2017, (ii) U.S. $225,000,000 aggregate principal amount of its 4.57% Senior Notes, Series B, due December 27, 2019, (iii) U.S. $275,000,000 aggregate principal amount of its 5.15% Senior Notes, Series C, due December 27, 2022 and (iv) U.S. $150,000,000 aggregate principal amount of its 5.30% Senior Notes, Series D, due December 27, 2024 (collectively, the “Notes”).
B.    The Obligors and the requisite Noteholders now desire to amend the Note Purchase Agreement in the respects, but only in the respects, hereinafter set forth.
C.    Capitalized terms used herein shall have the respective meanings ascribed thereto in the Note Purchase Agreement unless herein defined or the context shall otherwise require.
D.    All requirements of law have been fully complied with and all other acts and things necessary to make this Amendment a valid, legal and binding instrument according to its terms for the purposes herein expressed have been done or performed.
NOW, THEREFORE, the Obligors and the requisite Noteholders, in consideration of good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, do hereby agree as follows:


4236618


SECTION 1.
AMENDMENTS TO NOTE PURCHASE AGREEMENT.
Subject to the terms and conditions set forth herein, the Note Purchase Agreement (exclusive of Schedules and Exhibits thereto, unless expressly provided) 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.

SECTION 2.
AMENDMENTS TO NOTES.
From and after the Sixth Amendment Effective Date, (i) the applicable rate of interest stated in clauses (a) and (b)(i) of the first paragraph of each of the Notes shall be increased by an amount equal to 0.50% per annum (the “Coupon Bump”), (ii) all references to the original coupon rate applicable to the Notes in the Note Purchase Agreement and the Notes shall be increased by an amount equal to the Coupon Bump (and the forms of Notes attached as exhibits to Annex I hereto have been revised to reflect such Coupon Bump) and and (iii) the Default Rate applicable to the Notes is the greater of (x) 2.0% over the rate of interest publicly announced by Bank of America, N.A. in New York, New York as its “base” or “prime” rate or (y)(A) in the case of the Series A Notes, 6.65% per annum, (B) in the case of the Series B Notes, 7.07% per annum, (C) in the case of the Series C Notes, 7.65% per annum, and (D) in the case of the Series D Notes, 7.80% per annum. The Coupon Bump shall not be taken into account for purposes of any calculation of the Make-Whole Amount or the Modified Make-Whole Amount under the Note Purchase Agreement.
At the option of each Noteholder, in accordance with Section 14.2 of the Note Purchase Agreement, such Noteholder may request that its Note or Notes be exchanged for a replacement Note or Notes reflecting the foregoing amendments.
SECTION 3.
WAIVERS.
Subject to the terms and conditions hereof, effective as of the date of this Amendment, the undersigned Noteholders hereby waive:
(a)    any actual or potential Default or Event of Default, if any, under Section 11(g) of the Note Purchase Agreement arising solely as a result of the failure by the Parent Guarantor to deliver a copy of the plan and forecast of the Parent Guarantor and its Subsidiaries for the fiscal year commencing January 1, 2017, pursuant to the requirements of the 2013 Revolving Credit Agreement, the 2015 Revolving Credit Agreement and the 2015 Term Loan Agreement; and

2



(b)    any actual or potential Default or Event of Default, if any, under Section 11(c) of the Note Purchase Agreement arising solely as a result of the failure of the Parent Guarantor to comply with the terms of Section 10.7 of the Note Purchase Agreement for the fiscal quarter ending March 31, 2017;
provided, however, the foregoing does not constitute a waiver of interest payable, if any, at the Default Rate for the period from March 31, 2017 to the effective date of this Amendment, payable pursuant to the terms of the Notes.
The foregoing waivers apply solely to the matters expressly described herein, and no waiver or modification of any of the other terms, covenants, rights, or remedies under the Note Purchase Agreement, the Notes or any other Financing Agreement is granted or implied herein. The foregoing waivers shall not obligate the Noteholders to agree to any additional waiver of any provision of the Note Purchase Agreement, the Notes or any other Financing Agreement, nor be deemed to constitute or operate as a waiver of any right under the Note Purchase Agreement or any other Financing Agreement to exercise remedies resulting from any existing Default or Event of Default of which such Noteholder is not actually aware or of any future Default or Event of Default.
SECTION 4.
REPRESENTATIONS AND WARRANTIES OF THE OBLIGORS.
To induce the Noteholders to execute and deliver this Amendment (which representations shall survive the execution and delivery of this Amendment), each Obligor represents and warrants to the Noteholders that:
(a)    this Amendment has been duly authorized, executed and delivered by it and this Amendment constitutes the legal, valid and binding obligation, contract and agreement of such Obligor enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(b)    the Note Purchase Agreement, as amended by this Amendment, constitutes the legal, valid and binding obligation, contract and agreement of such Obligor enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(c)    the execution, delivery and performance by such Obligor of this Amendment (i) has been duly authorized by all requisite corporate action and, if required, shareholder action, (ii) does not require the consent or approval of any governmental or regulatory body

3



or agency, and (iii) will not (A) violate (1) any provision of law, statute, rule or regulation or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, including, without limitation, any Credit Agreement, or (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in clause (iii)(A)(3) of this Section 4(c);
(d)    as of the date hereof after giving effect to this Amendment and the amendments to the Transaction Facilities, no Default or Event of Default has occurred which is continuing;
(e)    all of the representations and warranties contained in Section 5 of the Note Purchase Agreement are true and correct in all material respects (in all respects in the case of representations and warranties qualified by materiality, Material Adverse Effect or similar language in the text thereof) with the same force and effect as if made by such Obligor on and as of the date hereof, except to the extent that such representations and warranties expressly relate solely to an earlier date or due solely as a result of actions taken by the Obligors in accordance with the covenants set forth in the Note Purchase Agreement; and
(f)    the Subsidiary Guarantors executing this Amendment constitute all of the Subsidiary Guarantors as of the date hereof.
SECTION 5.
EFFECTIVENESS; CONDITIONS PRECEDENT AND CONDITION SUBSEQUENT.
This Amendment and the amendments to the Note Purchase Agreement provided in Sections 1 and 2 hereof shall be effective as of the date first written above upon the satisfaction of the following conditions precedent:
(a)    executed counterparts of this Amendment, duly executed and delivered by the Obligors, the Required Holders and the Subsidiary Guarantors, shall have been delivered to the Noteholders;
(b)    the representations and warranties of the Obligors set forth in Section 4 hereof are true and correct on and with respect to the date hereof;
(c)    the Obligors shall have paid the fees and expenses of Chapman and Cutler LLP, counsel to the Noteholders in connection with the negotiation, preparation, approval,

4



execution and delivery of this Amendment for which invoices have been presented a reasonable period of time prior to the effectiveness hereof (which fees and expenses may be estimated to date without prejudice to final settling of accounts for such fees and expenses);
(d)    the Noteholders shall have received a copy of an amendment to each outstanding Transaction Facility, in each case, in the form previously provided to them and in form and substance reasonably satisfactory to the Noteholders;
(e)    each holder of a Note shall have received a work fee in an amount equal to 0.15% (15 bps) on the aggregate outstanding principal amount of each Note held by such holder; and
(f)    the Noteholders shall have received a copy of the resolutions of the board of directors of the Parent Guarantor authorizing the transactions contemplated by this Amendment.
Within 10 days following the effective date of this Amendment, the Noteholders shall have received opinions of counsel to the Obligors (which may be allocated between external and internal counsel for the Obligors in a manner consistent with such allocation in connection with the original Closing) in form and substance reasonably satisfactory to the Noteholders, covering the due authorization, execution, delivery and enforceability of the Financing Agreements after giving effect to this Amendment, and no conflict with organizational documents, applicable laws or material agreements identified in the Parent Guarantor’s most recent Form 10-K filed with the SEC.
SECTION 6.
MISCELLANEOUS.
(a)    This Amendment shall be construed in connection with and as part of the Note Purchase Agreement and the Notes, and except as modified and expressly amended by this Amendment, all terms, conditions and covenants contained in the Note Purchase Agreement and the Notes are hereby ratified and shall be and remain in full force and effect.
(b)    The Parent Guarantor and each Subsidiary Guarantor (i) acknowledges and consents to all of the terms and conditions of this Amendment, (ii) affirms all of its obligations under the Parent Guarantee and its Subsidiary Guarantee, as applicable, and (iii) agrees that this Amendment and all documents delivered in connection herewith do not operate to reduce or discharge its obligations under the Note Purchase Agreement (including, without limitation, the Parent Guarantee) or its Subsidiary Guarantee.

5



(c)    Any and all notices, requests, certificates and other instruments executed and delivered after the execution and delivery of this Amendment may refer to the Note Purchase Agreement without making specific reference to this Amendment but nevertheless all such references shall include this Amendment unless the context otherwise requires.
(d)    The descriptive headings of the various Sections or parts of this Amendment are for convenience only and shall not affect the meaning or construction of any of the provisions hereof.
(e)    This Amendment shall be governed by and construed in accordance with New York law and shall be further subject to the provisions of Section 24.7 and Section 24.8 of the Note Purchase Agreement.
(f)    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.
(g)    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 Note Purchase Agreement, the Notes or any of the other Financing Agreements or any obligations thereunder.
(h)    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.
[Signature pages follow.]


6



IN WITNESS WHEREOF, the undersigned has duly executed this Amendment as of the date first written above.
CHICAGO BRIDGE & IRON COMPANY N.V., as the Parent Guarantor
By: CHICAGO BRIDGE & IRON COMPANY B.V., as its Managing Director
 
 
 
 
 
 
By:
 
/s/ Michael S. Taff
 
 
Name:
 
Michael S. Taff
 
 
Title:
 
Authorized Signatory
 
 


[Signature to Sixth Amendment to 2012 Note Purchase Agreement]



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





[Signature to Sixth Amendment to 2012 Note Purchase Agreement]



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
 
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


[Signature to Sixth Amendment to 2012 Note Purchase Agreement]



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
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


[Signature to Sixth Amendment to 2012 Note Purchase Agreement]



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:
 
/s/ Raymond Buckley
 
 
 
Name:
 
Raymond Buckley
 
 
 
Title:
 
Director
 
 
 
 
 
 
 
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
 


[Signature to Sixth Amendment to 2012 Note Purchase Agreement]



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
 
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





[Signature to Sixth Amendment to 2012 Note Purchase Agreement]



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 (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. Albanese, 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



[Signature to Sixth Amendment to 2012 Note Purchase Agreement]



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
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


[Signature to Sixth Amendment to 2012 Note Purchase Agreement]



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
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


[Signature to Sixth Amendment to 2012 Note Purchase Agreement]



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
 
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


[Signature to Sixth Amendment to 2012 Note Purchase Agreement]



CB&I ENVIRONMENTAL & INFRASTRUCTURE, INC.
(f/k/a SHAW ENVIRONMENTAL, INC.)
 
 
 
 
 
By:
 
/s/ Luciano Reyes
 
 
 
 
 
Name:
 
Luciano Reyes
 
 
 
 
 
Title:
 
Director
 
 
 
   
 
 
 
 
 
 
 
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
 
 
 


[Signature to Sixth Amendment to 2012 Note Purchase Agreement]



CHICAGO BRIDGE & IRON COMPANY (NETHERLANDS), LLC
 
 
 
By:
 
/s/ Regina N. Hamilton
 
 
 
Name:
 
Regina N. Hamilton
 
 
 
Title:
 
Director
 
 
 
 
 
 
 
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
 



[Signature to Sixth Amendment to 2012 Note Purchase Agreement]




This Agreement is hereby
accepted and agreed to as
of the date thereof.
AMERICAN HOME ASSURANCE COMPANY
NEW HAMPSHIRE INSURANCE COMPANY
THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA
COMMERCE AND INDUSTRY INSURANCE COMPANY
AIG PROPERTY CASUALTY COMPANY
AMERICAN GENERAL LIFE INSURANCE COMPANY (SBM TO WESTERN NATIONAL LIFE INSURANCE COMPANY)
AMERICAN GENERAL LIFE INSURANCE COMPANY (SBM TO SUNAMERICA LIFE INSURANCE COMPANY)
THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK
AMERICAN GENERAL LIFE INSURANCE COMPANY
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY

By: AIG Asset Management (U.S.), LLC, as investment adviser


By /s/ Peter DeFazio        
Name: Peter DeFazio
Title: Managing Director
We acknowledge that Commerce and Industry Insurance Company holds $15,000,000 of the 4.57% Senior Notes, Series B, due December 27, 2019.
We acknowledge that American Home Assurance Company holds $10,000,000 of the 4.57% Senior Notes, Series B, due December 27, 2019.
We acknowledge that AIG Property Casualty Company (f/k/a Chartis Property Casualty Company) holds $9,000,000 of the 4.57% Senior Notes, Series B, due December 27, 2019.
We acknowledge that New Hampshire Insurance Company holds $9,000,000 of the 4.57% Senior Notes, Series B, due December 27, 2019.
We acknowledge that The Insurance Company of the State of Pennsylvania holds $9,000,000 of the 4.57% Senior Notes, Series B, due December 27, 2019.
We acknowledge that The United States Life Insurance Company in the City of New York holds $25,000,000 of the 5.15% Senior Notes, Series C, due December 27, 2022.
We acknowledge that American General Life Insurance Company holds $29,500,000 of the 5.15% Senior Notes, Series C, due December 27, 2022.
We acknowledge that The Variable Annuity Life Insurance Company holds $28,000,000 of the 5.30% Senior Notes, Series D, due December 27, 2024.
We acknowledge that American General Life Insurance Company holds $20,000,000 of the 5.30% Senior Notes, Series D, due December 27, 2024.


CHICAGO BRIDGE & IRON COMPANY (DELAWARE)
CHICAGO BRIDGE & IRON COMPANY N.V.






This Amendment is hereby
accepted and agreed to as
of the date thereof.

UNITED SERVICES AUTOMOBILE ASSOCIATION
CATASTROPHE REINSURANCE COMPANY
USAA CASUALTY INSURANCE COMPANY
USAA GENERAL INDEMNITY COMPANY
GARRISON PROPERTY & CASUALTY INSURANCE COMPANY


By: /s/ James F. Jackson, Jr.        
Name: James F. Jackson, Jr.
Title: Assistant Vice President
We acknowledge that United Services Automobile Association holds $10,000,000 of the 4.57% Senior Notes, Series B, due December 27, 2019.
We acknowledge that Catastrophe Reinsurance Company holds $6,000,000 of the 4.57% Senior Notes, Series B, due December 27, 2019.
We acknowledge that USAA Casualty Insurance Company holds $5,000,000 of the 4.57% Senior Notes, Series B, due December 27, 2019.
We acknowledge that USAA General Indemnity Company holds $2,000,000 of the 4.57% Senior Notes, Series B, due December 27, 2019.
We acknowledge that Garrison Property & Casualty Insurance Company holds $2,000,000 of the 4.57% Senior Notes, Series B, due December 27, 2019.


USAA LIFE INSURANCE COMPANY

By: James F. Jackson, Jr        
Name: James F. Jackson, Jr.
Title: Assistant Vice President
We acknowledge that USAA Life Insurance Company holds $12,000,000 of the 5.15% Senior Notes, Series C, due December 27, 2022.
We acknowledge that USAA Life Insurance Company holds $45,000,000 of the 5.30% Senior Notes, Series D, due December 27, 2024.

[Signature to Sixth Amendment to 2012 Note Purchase Agreement]




This Amendment is hereby
accepted and agreed to as
of the date thereof.
METLIFE INSURANCE K.K.
F/K/A METLIFE ALICO LIFE INSURANCE K.K.
by MetLife Investment Advisors, LLC, Its Investment Manager

AXIS REINSURANCE COMPANY
by MetLife Investment Advisors, LLC, its Investment Manager

BRIGHTHOUSE LIFE INSURANCE COMPANY
F/K/A METLIFE INSURANCE COMPANY USA
F/K/A METLIFE INSURANCE COMPANY OF CONNECTICUT
AND AS SUCCESSOR BY MERGER TO
METLIFE INVESTORS USA INSURANCE COMPANY
AND METLIFE INVESTORS INSURANCE COMPANY
by MetLife Investment Advisors, LLC, Its Investment Manager

BRIGHTHOUSE LIFE INSURANCE COMPANY OF NY
F/K/A FIRST METLIFE INVESTORS INSURANCE COMPANY
by MetLife Investment Advisors, LLC, Its Investment Manager

By /s/ Judith A. Gulotta
Name: Judith A. Gulotta
Title: Managing Director


We acknowledge that MetLife Insurance K.K. holds $14,500,000.00 of the 4.15% Senior Notes, Series A, due December 27, 2017.
We acknowledge that Axis Reinsurance Company holds $7,372,000.00 of the 5.15% Senior Notes, Series C, due December 27, 2022.
We acknowledge that MetLife Insurance Company USA holds $9,000,000.00 of the 4.57% Senior Notes, Series B, due December 27, 2019.
We acknowledge that MetLife Insurance Company USA holds $9,500,000.00 of the 4.15% Senior Notes, Series A, due December 27, 2017.
We acknowledge that First MetLife Investors Insurance Company holds $1,500,000.00 of the 4.57% Senior Notes, Series B, due December 27, 2019.

[Signature to Sixth Amendment to 2012 Note Purchase Agreement]




This Amendment is hereby
accepted and agreed to as
of the date thereof.
METROPOLITAN LIFE INSURANCE COMPANY


GENERAL AMERICAN LIFE INSURANCE COMPANY
by Metropolitan Life Insurance Company, its Investment Manager


By /s/ John Tanyeri        
Name: John Tanyeri
Title: Vice President and Managing Director



We acknowledge that Metropolitan Life Insurance Company holds $17,000,000.00 of the 4.15% Senior Notes, Series A, due December 27, 2017.
We acknowledge that General American Life Insurance Company holds $7,000,000.00 of the 4.15% Senior Notes, Series A, due December 27, 2017.
We acknowledge that Metropolitan Life Insurance Company holds $15,000,000.00 of the 4.57% Senior Notes, Series B, due December 27, 2019.
We acknowledge that General American Life Insurance Company holds $1,500,000.00 of the 4.57% Senior Notes, Series B, due December 27, 2019.

[Signature to Sixth Amendment to 2012 Note Purchase Agreement]





This Amendment is hereby
accepted and agreed to as
of the date thereof.

THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY

By:
Northwestern Mutual Investment Management Company, LLC, its investment adviser


By: /s/ Howard Stern        
Name: Howard Stern
Title: Managing Director
We acknowledge that The Northwestern Mutual Life Insurance Company holds $30,000,000 of the 4.15% Senior Notes, Series A, due December 27, 2017.
We acknowledge that The Northwestern Mutual Life Insurance Company holds $23,500,000 of the 5.15% Senior Notes, Series C, due December 27, 2022.


NORTHWESTERN LONG TERM CARE INSURANCE COMPANY


By: Howard Stern        
Name: Howard Stern
Title: Its Authorized Agent
We acknowledge that Northwestern Long Term Care Insurance Company holds $2,500,000 of the 5.15% Senior Notes, Series C, due December 27, 2022.


[Signature to Sixth Amendment to 2012 Note Purchase Agreement]




This Amendment is hereby
accepted and agreed to as
of the date thereof.

VOYA RETIREMENT INSURANCE AND ANNUITY COMPANY (F/K/A ING LIFE INSURANCE AND ANNUITY COMPANY)
VOYA INSURANCE AND ANNUITY COMPANY (F/K/A ING USA ANNUITY AND LIFE INSURANCE COMPANY)
RELIASTAR LIFE INSURANCE COMPANY

By: Voya Investment Management LLC, as Agent


By: /s/ Greg Addicks        
Name: Greg Addicks
Title: Senior Vice President
We acknowledge that Voya Retirement Insurance and Annuity Company holds $9,400,000 of the 4.15% Senior Notes, Series A, due December 27, 2017.
We acknowledge that Voya Insurance and Annuity Company holds $10,500,000 of the 4.15% Senior Notes, Series A, due December 27, 2017.
We acknowledge that Reliastar Life Insurance Company holds $5,100,000 of the 4.15% Senior Notes, Series A, due December 27, 2017.
We acknowledge that Voya Retirement Insurance and Annuity Company holds $9,400,000 of the 4.57% Senior Notes, Series B, due December 27, 2019.
We acknowledge that Voya Insurance and Annuity Company holds $10,500,000 of the 4.57% Senior Notes, Series B, due December 27, 2019.
We acknowledge that Reliastar Life Insurance Company holds $5,100,000 of the 4.57% Senior Notes, Series B, due December 27, 2019.


[Signature to Sixth Amendment to 2012 Note Purchase Agreement]




This Amendment is hereby
accepted and agreed to as
of the date thereof.

FIDELITY & GUARANTY LIFE INSURANCE COMPANY


By: /s/ Thomas Cunningham        
Name: Thomas Cunningham
Title: Vice President
We acknowledge that Fidelity & Guaranty Life Insurance Company holds $15,000,000 of the 4.15% Senior Notes, Series A, due December 27, 2017.
We acknowledge that Fidelity & Guaranty Life Insurance Company holds $15,000,000 of the 4.57% Senior Notes, Series B, due December 27, 2019.
We acknowledge that Fidelity & Guaranty Life Insurance Company holds $15,000,000 of the 5.15% Senior Notes, Series C, due December 27, 2022.

[Signature to Sixth Amendment to 2012 Note Purchase Agreement]




This Amendment is hereby
accepted and agreed to as
of the date thereof.

THE LINCOLN NATIONAL LIFE INSURANCE COMPANY

By:
Macquarie Investment Management Advisers, a series of Macquarie Investment Management Business Trust, Attorney in Fact


By: /s/ Karl Spaeth        
Name: Karl Spaeth
Title: Vice President
We acknowledge that The Lincoln National Life Insurance Company holds $35,000,000 of the 4.57% Senior Notes, Series B, due December 27, 2019.
We acknowledge that The Lincoln National Life Insurance Company holds $11,000,000 of the 5.15% Senior Notes, Series C, due December 27, 2022.


LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK

By:
Macquarie Investment Management Advisers, a series of Macquarie Investment Management Business Trust, Attorney in Fact


By: /s/ Karl Spaeth    
Name: Karl Spaeth
Title: Vice President
We acknowledge that Lincoln Life & Annuity Company of New York holds $9,000,000 of the 5.15% Senior Notes, Series C, due December 27, 2022.


[Signature to Sixth Amendment to 2012 Note Purchase Agreement]




This Amendment is hereby
accepted and agreed to as
of the date thereof.

NATIONWIDE LIFE INSURANCE COMPANY
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY



By: /s/ Jason M. Comisar    
Jason M. Comisar
Authorized Signatory
We acknowledge that Nationwide Life and Annuity Insurance Company holds $20,000,000 of the 4.57% Senior Notes, Series B, due December 27, 2019.
We acknowledge that Nationwide Life Insurance Company holds $5,000,000 of the 5.15% Senior Notes, Series C, due December 27, 2022.



[Signature to Sixth Amendment to 2012 Note Purchase Agreement]




This Amendment is hereby
accepted and agreed to as
of the date thereof.

MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By:
Barings LLC as its Investment Adviser


By: /s/ John B. Wheeler            
Name: John B. Wheeler
Title: Managing Director
We acknowledge that Massachusetts Mutual Life Insurance Company holds $7,900,000 of the 4.15% Senior Notes, Series A, due December 27, 2017.
We acknowledge that Massachusetts Mutual Life Insurance Company holds $8,600,000 of the 4.57% Senior Notes, Series B, due December 27, 2019.
We acknowledge that Massachusetts Mutual Life Insurance Company holds $8,950,0000 of the 5.15% Senior Notes, Series C, due December 27, 2022.


C.M. LIFE INSURANCE COMPANY
By:
Barings LLC as its Investment Adviser


By: /s/ John B. Wheeler            
Name: John B. Wheeler
Title: Managing Director
We acknowledge that C.M. Life Insurance Company holds $1,100,000 of the 4.15% Senior Notes, Series A, due December 27, 2017.
We acknowledge that C.M. Life Insurance Company holds $1,400,000 of the 4.57% Senior Notes, Series B, due December 27, 2019.
We acknowledge that C.M. Life Insurance Company holds $1,050,000 of the 5.15% Senior Notes, Series C, due December 27, 2022.


[Signature to Sixth Amendment to 2012 Note Purchase Agreement]




This Amendment is hereby
accepted and agreed to as
of the date thereof.

UNITED OF OMAHA LIFE INSURANCE COMPANY


By: /s/ Justin P. Kavan        
Name: Justin P. Kavan
Title: Senior Vice President
We acknowledge that United of Omaha Life Insurance Company holds $20,000,000 of the 5.30% Senior Notes, Series D, due December 27, 2024.


MUTUAL OF OMAHA INSURANCE COMPANY


By: /s/ Justin P. Kavan        
Name: Justin P. Kavan
Title: Senior Vice President
We acknowledge that Mutual of Omaha Insurance Company holds $7,000,000 of the 5.30% Senior Notes, Series D, due December 27, 2024.


COMPANION LIFE INSURANCE COMPANY


By: /s/ Justin P. Kavan        
Name: Justin P. Kavan
Title: Senior Vice President
We acknowledge that Companion Life Insurance Company holds $1,000,000 of the 5.30% Senior Notes, Series D, due December 27, 2024.

[Signature to Sixth Amendment to 2012 Note Purchase Agreement]




This Amendment is hereby
accepted and agreed to as
of the date thereof.

MODERN WOODMEN OF AMERICA


By: /s/ Douglas A. Pannier
Name: Douglas A. Pannier
Title: Group Head – Private Placements
We acknowledge that Modern Woodmen of America holds $10,000,000 of the 5.15% Senior Notes, Series C, due December 27, 2022.
We acknowledge that Modern Woodmen of America holds $15,000,000 of the 5.30% Senior Notes, Series D, due December 27, 2024.

[Signature to Sixth Amendment to 2012 Note Purchase Agreement]




This Amendment is hereby
accepted and agreed to as
of the date thereof.

AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY



By: /s/ Jeffrey A. Fossell    
Name: Jeffrey A. Fossell
Title: Authorized Signatory
We acknowledge that American Equity Investment Life Insurance Company holds $8,000,000 of the 4.57% Senior Notes, Series B, due December 27, 2019.
We acknowledge that American Equity Investment Life Insurance Company holds $8,000,000 of the 5.15% Senior Notes, Series C, due December 27, 2022.

[Signature to Sixth Amendment to 2012 Note Purchase Agreement]




This Amendment is hereby
accepted and agreed to as
of the date thereof.

CMFG LIFE INSURANCE COMPANY
CUMIS INSURANCE SOCIETY, INC.

By:
MEMBERS Capital Advisors, Inc.
Acting as Investment Advisor


By: /s/ Anne Finucane
Name: Anne Finucane
Title: Managing Director, Investments
We acknowledge that CMFG Life Insurance Company holds $5,000,000 of the 5.15% Senior Notes, Series C, due December 27, 2022.
We acknowledge that CUMIS Insurance Society, Inc. holds $1,000,000 of the 5.15% Senior Notes, Series C, due December 27, 2022.
We acknowledge that CMFG Life Insurance Company holds $5,000,000 of the 5.30% Senior Notes, Series D, due December 27, 2024.
We acknowledge that CUMIS Insurance Society, Inc. holds $1,000,000 of the 5.30% Senior Notes, Series D, due December 27, 2024.


[Signature to Sixth Amendment to 2012 Note Purchase Agreement]




This Amendment is hereby
accepted and agreed to as
of the date thereof

LIFE INSURANCE COMPANY OF SOUTHWEST



By: /s/ Andrew Ebersol    
Name: Andrew Ebersole
Title: Head of Private Placements

We acknowledge that Life Insurance Company of Southwest holds $7,000,000 of the 4.15% Senior Notes, Series A, due December 27, 2017.
We acknowledge that Life Insurance Company of Southwest holds $5,000,000 of the 4.57% Senior Notes, Series B, due December 27, 2019.

[Signature to Sixth Amendment to 2012 Note Purchase Agreement]




This Amendment is hereby
accepted and agreed to as
of the date thereof.
SENIOR HEALTH INSURANCE COMPANY OF PENNSYLVANIA
By: Conning, Inc., as Investment Manager


By: /s/ John Petchler    
Name: John Petchler
Title: Director
We acknowledge that Senior Health Insurance Company of Pennsylvania holds $4,000,000 of the 5.15% Senior Notes, Series C, due December 27, 2022.


PRIMERICA LIFE INSURANCE COMPANY
By: Conning, Inc., as Investment Manager


By: /s/ John Petchler    
Name: John Petchler
Title: Director
We acknowledge that Primerica Life Insurance Company holds $2,500,000 of the 5.15% Senior Notes, Series C, due December 27, 2022.


AMERICAN HEALTH AND LIFE INSURANCE COMPANY
By: Conning, Inc., as Investment Manager


By: /s/ John Petchler    
Name: John Petchler
Title: Director
We acknowledge that American Health and Life Insurance Company holds $1,500,000 of the 5.15% Senior Notes, Series C, due December 27, 2022.


[Signature to Sixth Amendment to 2012 Note Purchase Agreement]




This Amendment is hereby
accepted and agreed to as
of the date thereof.
NATIONAL BENEFIT LIFE INSURANCE COMPANY
By: Conning, Inc., as Investment Manager


By: /s/ John Petchler    
Name: John Petchler
Title: Director
We acknowledge that National Benefit Life Insurance Company holds $1,000,000 of the 5.15% Senior Notes, Series C, due December 27, 2022.

TRITON INSURANCE COMPANY
By: Conning, Inc., as Investment Manager


By: /s/ John Petchler    
Name: John Petchler
Title: Director
We acknowledge that Triton Insurance Company holds $1,000,000 of the 5.15% Senior Notes, Series C, due December 27, 2022.


[Signature to Sixth Amendment to 2012 Note Purchase Agreement]





This Amendment is hereby
accepted and agreed to as
of the date thereof.

PHOENIX LIFE INSURANCE COMPANY


By:/s/ Christopher M. Wilkos
Name: Christopher M. Wilkos
Title: Vice President
We acknowledge that Phoenix Life Insurance Company holds $5,000,000 of the 4.15% Senior Notes, Series A, due December 27, 2017.


PHL VARIABLE INSURANCE COMPANY


By: /s/ Christopher M. Wilkos
Name: Christopher M. Wilkos
Title: Vice President
We acknowledge that PHL Variable Insurance Company holds $5,000,000 of the 4.15% Senior Notes, Series A, due December 27, 2017.

[Signature to Sixth Amendment to 2012 Note Purchase Agreement]




This Amendment is hereby
accepted and agreed to as
of the date thereof.

FARM BUREAU LIFE INSURANCE COMPANY



By: /s/ Herman L. Riva        
Name: Herman L. Riva
Title: Securities Vice President
We acknowledge that Farm Bureau Life Insurance Company holds $8,000,000.00 of the 5.30% Senior Notes, Series D, due December 27, 2024.


[Signature to Sixth Amendment to 2012 Note Purchase Agreement]




This Amendment is hereby
accepted and agreed to as
of the date thereof.

SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY



By:/s/ David Divine    
Name: David Divine
Title: Senior Portfolio Manager
We acknowledge that Southern Farm Bureau Life Insurance Company holds $6,000,000 of the 4.15% Senior Notes, Series A, due December 27, 2017.


[Signature to Sixth Amendment to 2012 Note Purchase Agreement]




This Agreement is hereby
accepted and agreed to as
of the date thereof.

ASSURITY LIFE INSURANCE COMPANY



By: /s/ Victor Weber    
Name: Victor Weber
Title: Senior Director – Investments
We acknowledge that Assurity Life Insurance Company holds $3,000,000 of the 4.57% Senior Notes, Series B, due December 27, 2019.


[Signature to Sixth Amendment to 2012 Note Purchase Agreement]




This Agreement is hereby
accepted and agreed to as
of the date thereof.

PAN‑AMERICAN LIFE INSURANCE COMPANY



By:/s/ Lisa Baudot    
Name: Lisa Baudot
Title: Vice President, Securities
We acknowledge that Pan‑American Life Insurance Company holds $3,000,000 of the 5.15% Senior Notes, Series C, due December 27, 2022.



[Signature to Sixth Amendment to 2012 Note Purchase Agreement]




ANNEX I

(see attached)


CHICAGO BRIDGE & IRON COMPANY (DELAWARE)
CHICAGO BRIDGE & IRON COMPANY N.V.





May 8, 2017

Conformed to Include First Through Sixth Amendments




CHICAGO BRIDGE & IRON COMPANY (DELAWARE),
the Company
 

CHICAGO BRIDGE & IRON COMPANY N.V.,
as Parent Guarantor


U.S.$800,000,000 SENIOR NOTES, SERIES A-D, DUE 2017-2024


U.S.$150,000,000 4.65% Senior Notes, Series A, due December 27, 2017
U.S.$225,000,000 5.07% Senior Notes, Series B, due December 27, 2019
U.S.$275,000,000 5.65% Senior Notes, Series C, due December 27, 2022
U.S.$150,000,000 5.80% Senior Notes, Series D, due December 27, 2024


______________

NOTE PURCHASE AND GUARANTEE AGREEMENT

______________


Dated December 27, 2012











TABLE OF CONTENTS
SECTION    HEADING    PAGE
SECTION 1.
AUTHORIZATION OF NOTES    1
SECTION 2.
SALE AND PURCHASE OF NOTES    2
Section 2.1.
Notes    2
Section 2.2.
Parent Guarantee    2
Section 2.3.
Subsidiary Guarantees    2
SECTION 3.
CLOSING    2
SECTION 4.
CONDITIONS TO CLOSING    3
Section 4.1.
Representations and Warranties    3
Section 4.2.
Performance; No Default    3
Section 4.3.
Compliance Certificates    3
Section 4.4.
Opinions of Counsel    4
Section 4.5.
Purchase Permitted By Applicable Law, Etc    4
Section 4.6.
Sale of Other Notes    4
Section 4.7.
Payment of Special Counsel Fees    5
Section 4.8.
Private Placement Number    5
Section 4.9.
Changes in Corporate Structure    5
Section 4.10.
Funding Instructions    5
Section 4.11.
Acceptance of Appointment to Receive Service of Process    5
Section 4.12.
Subsidiary Guarantee    5
Section 4.13.
Credit Agreement    5
Section 4.14.
Escrow Agreement    5
Section 4.15.
Account Control Agreement    5
Section 4.16.
Proceedings and Documents    6
SECTION 5.
REPRESENTATIONS AND WARRANTIES OF THE OBLIGORS    6
Section 5.1.
Organization; Power and Authority    6
Section 5.2.
Authorization, Etc    6
Section 5.3.
Disclosure    6
Section 5.4.
Organization and Ownership of Shares of Subsidiaries; Affiliates    7
Section 5.5.
Financial Statements; Material Liabilities    7
Section 5.6.
Compliance with Laws, Other Instruments, Etc    8
Section 5.7.
Governmental Authorizations, Etc    8
Section 5.8.
Litigation; Observance of Agreements, Statutes and Orders    8
Section 5.9.
Taxes    9
Section 5.10.
Title to Property; Leases    9
Section 5.11.
Licenses, Permits, Etc    9
Section 5.12.
Compliance with ERISA    10





Section 5.13.
Private Offering    11
Section 5.14.
Use of Proceeds; Margin Regulations    11
Section 5.15.
Existing Indebtedness; Future Liens    12
Section 5.16.
Foreign Assets Control Regulations, Etc    12
Section 5.17.
Status under Certain Statutes    13
Section 5.18.
Environmental Matters    13
Section 5.19.
Notes Rank Pari Passu    14
Section 5.20.
Perfection of Escrowed Closing Proceeds    14
SECTION 6.
REPRESENTATIONS OF THE PURCHASERS    14
Section 6.1.
Purchase for Investment; Accredited Investor    14
Section 6.2.
Source of Funds    14
SECTION 7.
INFORMATION AS TO COMPANY    16
Section 7.1.
Financial and Business Information    16
Section 7.2.
Officer’s Certificate    20
Section 7.3.
Visitation    21
Section 7.4.
Limitation on Disclosure Obligation    21
SECTION 8.
PAYMENT AND PREPAYMENT OF THE NOTES    22
Section 8.1.
Maturity    22
Section 8.2.
Optional Prepayments with Make-Whole Amount    22
Section 8.3.
Allocation of Partial Prepayments    22
Section 8.4.
Maturity; Surrender, Etc.    22
Section 8.5.
Purchase of Notes    22
Section 8.6.
Make-Whole Amount    23
Section 8.7.
Change of Control    24
Section 8.8.
Termination of Transaction Agreement or Failure to Consummate the Shaw Acquisition    26
SECTION 9.
AFFIRMATIVE COVENANTS.    27
Section 9.1.
Compliance with Law    27
Section 9.2.
Insurance    28
Section 9.3.
Maintenance of Properties    28
Section 9.4.
Payment of Taxes and Claims    28
Section 9.5.
Corporate Existence, Etc    28
Section 9.6.
Books and Records    29
Section 9.7.
Pari Passu Ranking    29
Section 9.8.
Subsidiary Guarantors    29
Section 9.9.
Maintenance of Ownership    30
Section 9.10.
Maintenance of Rating on Notes    30
Section 9.11.
Most Favored Lender Status    30
Section 9.12.
Payment of Certain Fees    31
Section 9.13.
Prepayment in Connection with Capital Services Business Sale    32

- ii -




Section 9.14.
Special Mandatory Offers of Prepayment    33
Section 9.15.
Collateral Delivery Obligation    35
Section 9.16.
Financial Advisor    38
SECTION 10.
NEGATIVE COVENANTS.    38
Section 10.1.
Transactions with Affiliates    38
Section 10.2.
Merger, Consolidation, Etc    39
Section 10.3.
Sales of Assets    40
Section 10.4.
Line of Business    43
Section 10.5.
Terrorism Sanctions Regulations    43
Section 10.6.
Liens    43
Section 10.7.
Leverage Ratios, Capital Markets Indebtedness.    45
Section 10.8.
Consolidated Net Worth    47
Section 10.9.
Fixed Charge Coverage Ratio    47
Section 10.10.
Priority Debt    48
Section 10.11.
Investments    48
Section 10.12.
Contingent Obligations    49
Section 10.13.
Subsidiaries; Permitted Acquisitions    49
Section 10.14.
Sales and Leasebacks    50
Section 10.15.
Subsidiary Covenants    51
Section 10.16.
Hedging Obligations    51
Section 10.17.
Issuance of Disqualified Stock    51
Section 10.18.
Non-Guarantor Subsidiaries    51
Section 10.19.
Intercompany Indebtedness    51
Section 10.20.
Restricted Payments    52
SECTION 11.
EVENTS OF DEFAULT    52
SECTION 12.
REMEDIES ON DEFAULT, ETC    55
Section 12.1.
Acceleration    55
Section 12.2.
Other Remedies    55
Section 12.3.
Rescission    55
Section 12.4.
No Waivers or Election of Remedies, Expenses, Etc    56
SECTION 13.
TAX INDEMNIFICATION    56
SECTION 14.
REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES    59
Section 14.1.
Registration of Notes    59
Section 14.2.
Transfer and Exchange of Notes    59
Section 14.3.
Replacement of Notes    60
SECTION 15.
PAYMENTS ON NOTES    60
Section 15.1.
Place of Payment    60
Section 15.2.
Home Office Payment    60

- iii -




SECTION 16.
EXPENSES, ETC    61
Section 16.1.
Transaction Expenses    61
Section 16.2.
Survival    61
SECTION 17.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT    62
SECTION 18.
AMENDMENT AND WAIVER    62
Section 18.1.
Requirements    62
Section 18.2.
Solicitation of Holders of Notes    62
Section 18.3.
Binding Effect, etc    63
Section 18.4.
Notes Held by Obligors, etc    63
SECTION 19.
NOTICES; ENGLISH LANGUAGE    63
SECTION 20.
REPRODUCTION OF DOCUMENTS    66
SECTION 21.
CONFIDENTIAL INFORMATION    66
SECTION 22.
SUBSTITUTION OF PURCHASER    67
SECTION 23.
PARENT GUARANTEE    67
Section 23.1.
Guarantee    67
Section 23.2.
Parent Guarantor’s Obligations Unconditional    68
Section 23.3.
Full Recourse Obligations    73
Section 23.4.
Waiver    73
Section 23.5.
Waiver of Subrogation    74
Section 23.6.
Subordination    74
Section 23.7.
Effect of Bankruptcy Proceedings, Etc    75
Section 23.8.
Term of Guarantee    76
SECTION 24.
MISCELLANEOUS    76
Section 24.1.
Successors and Assigns    76
Section 24.2.
Payments Due on Non-Business Days    76
Section 24.3.
Accounting Terms    76
Section 24.4.
Severability    76
Section 24.5.
Construction, etc    76
Section 24.6.
Counterparts    77
Section 24.7.
Governing Law    77
Section 24.8.
Jurisdiction and Process; Waiver of Jury Trial    77
Section 24.9.
Obligation to Make Payment in Dollars    78
Signature    79


- iv -




SCHEDULE A    —    INFORMATION RELATING TO PURCHASERS

SCHEDULE B    —    DEFINED TERMS

SCHEDULE 5.3     —    Disclosure Materials

SCHEDULE 5.4
—    Subsidiaries of the Parent Guarantor and Ownership of Subsidiary Stock; Liens; Restrictive Agreements

SCHEDULE 5.5     —    Financial Statements

SCHEDULE 5.15    —    Existing Indebtedness

EXHIBIT 1(a)     —    Form of 4.15% Senior Note, Series A, due December 27, 2017

EXHIBIT 1(b)     —    Form of 4.57% Senior Note, Series B, due December 27, 2019

EXHIBIT 1(c)     —    Form of 5.15% Senior Note, Series C, due December 27, 2022

EXHIBIT 1(d)     —    Form of 5.30% Senior Note, Series D, due December 27, 2024

EXHIBIT 2.3     —     Form of Subsidiary Guarantee

EXHIBIT 4.4(a)(i) —
Form of Opinion of Special U.S. Counsel for the Obligors and the Initial Material Subsidiary Guarantors

EXHIBIT 4.4(a)(ii) —
Form of Opinion of Internal Counsel for the Company and the Initial Material Domestic Subsidiary Guarantors

EXHIBIT 4.4(a)(iii) —     Form of Opinion of Special Dutch Counsel for the Parent Guarantor

EXHIBIT 4.4(b)     —    Form of Opinion of Special Counsel for the Purchasers

EXHIBIT 4.4(c)     —    Form of Opinion of Special Counsel for Escrow Agent




- v -




CHICAGO BRIDGE & IRON COMPANY (DELAWARE)
One CB&I Plaza
2103 Research Forest Drive
The Woodlands, Texas 77380


CHICAGO BRIDGE & IRON COMPANY N.V.
Oostduinlaan 75
2596 JJ The Hague
The Netherlands
31-70-3732010


U.S.$150,000,000 4.15% Senior Notes, Series A, due December 27, 2017
U.S.$225,000,000 4.57% Senior Notes, Series B, due December 27, 2019
U.S.$275,000,000 5.15% Senior Notes, Series C, due December 27, 2022
U.S.$150,000,000 5.30% Senior Notes, Series D, due December 27, 2024



December 27, 2012


TO EACH OF THE PURCHASERS LISTED IN
SCHEDULE A HERETO:
Ladies and Gentlemen:
Each of CHICAGO BRIDGE & IRON COMPANY (DELAWARE), a Delaware corporation (the “Company”) and CHICAGO BRIDGE & IRON COMPANY N.V., a corporation incorporated under the laws of The Netherlands (the “Parent Guarantor” and, together with the Company, the “Obligors”), hereby agrees with each of the purchasers whose names appear at the end hereof (each, a “Purchaser” and, collectively, the “Purchasers”) as follows:
SECTION 1.
AUTHORIZATION OF NOTES.
The Company will authorize the issue and sale of (i) U.S.$150,000,000 aggregate principal amount of its 4.15% Senior Notes, Series A, due December 27, 2017 (the “Series A Notes”), (ii) U.S.$225,000,000 aggregate principal amount of its 4.57% Senior Notes, Series B, due December 27, 2019 (the “Series B Notes”); (iii) U.S.$275,000,000 aggregate principal amount of its 5.15% Senior Notes, Series C, due December 27, 2022 (the “Series C Notes”); and U.S.$150,000,000 aggregate principal amount of its 5.30% Senior Notes, Series D, due December 27, 2024 (the “Series D Notes”). The Series A Notes, Series B





Notes, Series C Notes and Series D Notes are collectively referred to herein as the “Notes”, such term to include any such notes issued in substitution therefor pursuant to Section 14. The Series A Notes, the Series B Notes, the Series C Notes and the Series D Notes shall be substantially in the form set out in Exhibit 1(a), Exhibit 1(b), Exhibit 1(c) and Exhibit 1(d), respectively. Certain capitalized and other terms used in this Agreement are defined in Schedule B; and references to a “Schedule” or an “Exhibit” are, unless otherwise specified, to a Schedule or an Exhibit attached to this Agreement.
SECTION 2.
SALE AND PURCHASE OF NOTES.
Section 2.1.    Notes. Subject to the terms and conditions of this Agreement, the Company will issue and sell to each Purchaser and each Purchaser will purchase from the Company, at the Closing provided for in Section 3, Notes in the principal amount and series specified opposite such Purchaser’s name in Schedule A at the purchase price of 100% of the principal amount thereof. The Purchasers’ obligations hereunder are several and not joint obligations and no Purchaser shall have any liability to any Person for the performance or non-performance of any obligation by any other Purchaser hereunder.
Section 2.2.    Parent Guarantee. The payment by the Company of its obligations hereunder and under the Notes are unconditionally guaranteed by the Parent Guarantor pursuant and subject to the terms of the Parent Guarantee contained in Section 23 hereof.
Section 2.3.    Subsidiary Guarantees. (a) The payment by the Company of all amounts due on the Notes and all of its other payment obligations under this Agreement may from time to time be absolutely and unconditionally guaranteed by the Subsidiary Guarantors pursuant to and subject to the terms of the Subsidiary Guarantee of each Subsidiary Guarantor, which shall be substantially in the form of Exhibit 2.3 attached hereto (as amended, modified or supplemented from time to time, each a “Subsidiary Guarantee,” and collectively, the “Subsidiary Guarantees”), and otherwise in accordance with the provisions of Section 9.8 hereof.
(b)    The holders of the Notes agree to discharge and release any Subsidiary Guarantor from its Subsidiary Guarantee upon the written request of the Company, provided that (i) such Subsidiary Guarantor has been released and discharged (or will be released and discharged concurrently with the release of such Subsidiary Guarantor under its Subsidiary Guarantee) as an obligor and guarantor under and in respect of the Credit Agreement and the Company so certifies to the holders of Notes in a certificate of a Responsible Officer, (ii) at the time of, and immediately after giving effect to, such release and discharge, no Default or Event of Default shall be existing, and the Company shall deliver a certificate of a Responsible Officer to the holders of the Notes stating that no Default or Event of Default exists, and (iii) if any fee or other form of consideration is given to any holder of Indebtedness of the Company expressly for the purpose of such release, holders of the Notes shall receive equivalent consideration.
SECTION 3.
CLOSING.
The sale and purchase of the Notes to be purchased by each Purchaser shall occur at the offices of Chapman and Cutler LLP, 111 West Monroe St., Chicago, Illinois 60603, at 10:00 a.m. Central time, at a

-2-




closing (the “Closing”) on December 28, 2012. At the Closing, the Company will deliver to each Purchaser or its special counsel the Notes to be purchased by such Purchaser in the form of a single series of Note (or such greater number of such series of Notes in denominations of at least U.S.$100,000 as such Purchaser may request) dated the date of the Closing and registered in such Purchaser’s name (or in the name of its nominee), against delivery by such Purchaser’s payment to the Escrow Agent, for the account of the Company, of immediately available funds in the amount of the purchase price therefor by wire transfer of immediately available funds for the Account Name: CSS LLC AAF Client Escrow Funding, ABA# 043-000-261, Account# 1361879, Ref: CB&I Escrow at BNY Mellon, N.A., 500 Ross Street, Pittsburgh, PA 15262-0001, such funds to be held at The Bank of New York Mellon, N.A. and otherwise administered by the Escrow Agent pursuant to the Escrow Agreement. For the avoidance of doubt, interest shall accrue on each Note of a Purchaser from the date that the Escrow Agent receives immediately available funds by wire transfer as provided above in the full amount of the purchase price of such Note; provided that no interest shall accrue on any Note prior to the date of the Closing. If at the Closing the Company shall fail to tender such Notes to any Purchaser (or its special counsel) as provided above in this Section 3, or any of the conditions specified in Section 4 shall not have been fulfilled to such Purchaser’s reasonable satisfaction (or, in such Purchaser’s sole discretion, waived), such Purchaser shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any rights such Purchaser may have by reason of such failure or such nonfulfillment. For purposes of this Agreement, the phrases “special counsel to each Purchaser,” “Purchaser or its special counsel,” “special counsel to the Purchasers” or words of similar import mean Chapman and Cutler LLP.
SECTION 4.
CONDITIONS TO CLOSING.
Each Purchaser’s obligation to purchase and pay for the Notes to be sold to such Purchaser at the Closing is subject to the fulfillment to such Purchaser’s reasonable satisfaction (or, in such Purchaser’s sole discretion, waived), prior to or at the Closing, of the following conditions:
Section 4.1.    Representations and Warranties. The representations and warranties of each Obligor in the Financing Agreements to which it is a party and of each Initial Subsidiary Guarantor in its Subsidiary Guarantee shall be correct when made and at the time of the Closing.
Section 4.2.    Performance; No Default. Each Obligor and each Initial Subsidiary Guarantor shall have performed and complied with all agreements and conditions contained in the Financing Agreements and the Subsidiary Guarantee required to be performed or complied with by it prior to or at the Closing and immediately after giving effect to the issue and sale of the Notes (and the deposit of the proceeds thereof into escrow as contemplated by Section 5.14 to be made at Closing) no Default or Event of Default shall have occurred and be continuing. Neither Obligor nor any Subsidiary shall have entered into any transaction since the date of the Memorandum that would have been prohibited by Section 10 had such Section applied since such date.

-3-




Section 4.3.    Compliance Certificates.
(a)    Officer’s Certificate. Each Obligor and each Initial Material Subsidiary Guarantor specifically identified (without duplication) in clauses (A)(1) - (6) and (B)(1) - (4) in the definition of “Initial Material Subsidiary Guarantor” shall have delivered to such Purchaser an Officer’s Certificate, dated the date of the Closing, certifying that the conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled.
(b)    Secretary’s Certificate. Each Obligor and each Initial Material Subsidiary Guarantor specifically identified (without duplication) in clauses (A)(1) - (6) and (B)(1) - (4) in the definition of “Initial Material Subsidiary Guarantor” shall have delivered to such Purchaser a certificate of its Secretary or Assistant Secretary or authorized representative, dated the date of Closing, certifying as to the resolutions attached thereto and other corporate proceedings relating to the authorization, execution and delivery of the Notes (in the case of the Company), the other Financing Agreements to which it is a party and the Subsidiary Guarantee (in the case of such Initial Material Subsidiary Guarantors).
Section 4.4.    Opinions of Counsel. Such Purchaser shall have received opinions in form and substance reasonably satisfactory to such Purchaser, dated the date of the Closing (a) from (i) Fulbright & Jaworski L.L.P., U.S. counsel for the Obligors and the Initial Material Subsidiary Guarantors specifically identified (without duplication) in clauses (A)(1) - (6) and (B)(1) - (4) in the definition of “Initial Material Subsidiary Guarantor”, covering the matters set forth in Exhibit 4.4(a)(i), (ii) from Internal Counsel for the Company and the Initial Material Domestic Subsidiary Guarantors, covering the matters set forth in Exhibit 4.4(a)(ii) and (iii) from Van Campen Liem, Dutch counsel to the Parent Guarantor, covering the matters set forth in Exhibit 4.4(a)(iii), and in each case, covering such other matters incident to the transactions contemplated hereby as such Purchaser or its special counsel may reasonably request (and the Obligors hereby instruct their respective counsel to deliver such opinion to the Purchasers), (b) from Chapman and Cutler LLP, the Purchasers’ special counsel in connection with such transactions, substantially in the form set forth in Exhibit 4.4(c) and covering such other matters incident to such transactions as such Purchaser may reasonably request, and (c) from counsel to the Escrow Agent in form and substance reasonably satisfactory to such Purchaser and its special counsel.
Section 4.5.    Purchase Permitted By Applicable Law, Etc. On the date of the Closing such Purchaser’s purchase of Notes shall (a) be permitted by the laws and regulations of each jurisdiction to which such Purchaser is subject, without recourse to provisions (such as section 1405(a)(8) of the New York Insurance Law) permitting limited investments by insurance companies without restriction as to the character of the particular investment, (b) not violate any applicable law or regulation (including, without limitation, Regulation T, U or X of the Board of Governors of the Federal Reserve System) and (c) not subject such Purchaser to any tax, penalty or liability under or pursuant to any applicable law or regulation, which laws or regulations referred to in each of the preceding clauses (a) through (c) were not in effect on the date hereof. If requested by such Purchaser, such Purchaser shall have received an Officer’s Certificate certifying as to such matters of fact as such Purchaser may reasonably specify, and which are known by the Person from whom the Officer’s Certificate is being requested to be, as requested by such Purchaser, correct, to enable such Purchaser to determine whether such purchase is so permitted.

-4-




Section 4.6.    Sale of Other Notes. Contemporaneously with the Closing, the Company shall sell to each other Purchaser and each other Purchaser shall purchase the Notes to be purchased by it at the Closing as specified in Schedule A.
Section 4.7.    Payment of Special Counsel Fees. Without limiting the provisions of Section 15.1, the Company shall have paid on or before the date of Closing the fees, charges and disbursements of the Purchasers’ special counsel referred to in Section 4.4 to the extent reflected in a reasonably-detailed statement of such counsel rendered to the Company at least one Business Day prior to the date of Closing.
Section 4.8.    Private Placement Number. A Private Placement Number issued by Standard & Poor’s CUSIP Service Bureau (in cooperation with the SVO) shall have been obtained for each series of the Notes.
Section 4.9.    Changes in Corporate Structure. None of the Obligors nor any Initial Subsidiary Guarantor shall have changed its jurisdiction of incorporation or organization, as applicable, or been a party to any merger or consolidation or succeeded to all or any substantial part of the liabilities of any other entity, at any time following the date of the most recent financial statements referred to in Schedule 5.5 and through and including the date of Closing, other than as permitted under Section 10.2 hereof.
Section 4.10.    Funding Instructions. At least three Business Days prior to the date of the Closing, each Purchaser shall have received written instructions signed by a Responsible Officer on letterhead of the Company confirming the information specified in Section 3 including (i) the name and address of the Escrow Agent, (ii) the ABA number and (iii) the account name and number into which the purchase price for the Notes is to be deposited.
Section 4.11.    Acceptance of Appointment to Receive Service of Process. Such Purchaser shall have received evidence of the acceptance of C T Corporation System of the appointment and designation provided for by Section 24.8 for the period from the date of the Closing to one year plus date of final maturity (and payment in full of all fees, if any, in respect thereof).
Section 4.12.    Subsidiary Guarantee. The Initial Subsidiary Guarantors shall have duly authorized, executed and delivered the Subsidiary Guarantee and such Purchaser shall have received a copy thereof.
Section 4.13.    Credit Agreement. The Obligors shall have provided to the Purchasers a true, correct and complete copy of each Credit Agreement (other than the Bridge Facility), and each such Credit Agreement shall be in full force and effect.
Section 4.14.    Escrow Agreement. The Escrow Agreement shall be duly executed and delivered in form and substance reasonably acceptable to such Purchaser and its special counsel, and such Escrow Agreement shall constitute the legal, valid and binding contract and agreement of each of the parties thereto.
    

-5-




Section 4.15.    Account Control Agreement. Each Account Control Agreement shall be duly executed and delivered in form and substance acceptable to such Purchaser and its special counsel, and such Account Control Agreement shall constitute the legal, valid and binding contract and agreement of each of the parties thereto.
Section 4.16.    Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated by the Financing Agreements and all documents and instruments incident to such transactions shall be reasonably satisfactory to such Purchaser and its special counsel, and such Purchaser and its special counsel shall have received all such counterpart originals or certified or other copies of such documents as such Purchaser or such special counsel may reasonably request. Delivery of all Notes, agreements, certificates, opinions and other documents and instruments referred to in this Section 4 (other than, for the avoidance of doubt, the funding instructions referred to in Section 4.10), shall be deemed delivered to each Purchaser if delivered to its special counsel or, if the Company receives written notice and reasonably detailed instructions at least five (5) Business Days prior to the Closing, to the Person and at the address specified in such notice and instruction.
SECTION 5.
REPRESENTATIONS AND WARRANTIES OF THE OBLIGORS.
Each Obligor jointly and severally represents and warrants to each Purchaser that, as of the date of the Closing:
Section 5.1.    Organization; Power and Authority. Each Obligor is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, and is duly qualified as a foreign corporation and is in good standing in each other jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each Obligor has the corporate power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver each Financing Agreement to which it is a party (including in the case of the Company, the Notes) and to perform its obligations pursuant to the provisions hereof and thereof.
Section 5.2.    Authorization, Etc. Each Financing Agreement to which an Obligor is a party (including in the case of the Company, the Notes) has been duly authorized by all necessary corporate action on the part of such Obligor, and each Financing Agreement to which an Obligor is a party constitutes a legal, valid and binding obligation of such Obligor enforceable against such Obligor in accordance with its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and fraudulent conveyance laws or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
    

-6-




Section 5.3.    Disclosure. The Obligors, through their agents, Merrill Lynch, Pierce, Fenner & Smith Incorporated and Credit Agricole Corporate and Investment Bank, have delivered to each Purchaser a copy of a Private Placement Memorandum, dated September 2012 (the “Memorandum”), relating to the transactions contemplated hereby. The Memorandum fairly describes, in all material respects, the general nature of the business and principal properties of the Obligors and their respective Subsidiaries. The Financing Agreements, the Memorandum and the documents, certificates or other writings delivered to the Purchasers by or on behalf of the Obligors in connection with the transactions contemplated hereby and identified in Schedule 5.3, and the financial statements listed in Schedule 5.5 (the Financing Agreements, the Memorandum and such documents, certificates or other writings and such financial statements delivered to each Purchaser prior to October 12, 2012 being referred to, collectively, as the “Disclosure Documents”), taken as a whole, do not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made. Except as disclosed in the Disclosure Documents, since December 31, 2011, there has been no change in the financial condition, operations, business or properties of the Obligors or any Subsidiary except changes that individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect. There is no fact known by any Obligor that would reasonably be expected to have a Material Adverse Effect that has not been set forth herein or in the Disclosure Documents.
Section 5.4.    Organization and Ownership of Shares of Subsidiaries; Affiliates. (a) Schedule 5.4 contains (except as noted therein) complete and correct lists (i) of the Parent Guarantor’s Subsidiaries (including the Company), showing, as to each Subsidiary, the correct name thereof, the jurisdiction of its organization, and the percentage of shares of each class of its capital stock or similar equity interests outstanding owned by the Parent Guarantor and each other Subsidiary, and (ii) of each Person known by the Obligors as the Obligor’s Affiliates, other than Subsidiaries.
(b)    All of the outstanding shares of capital stock or similar equity interests of each Subsidiary shown in Schedule 5.4 as being owned by the Obligors and their Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by the Obligors or another Subsidiary free and clear of any Lien (except as otherwise disclosed in Schedule 5.4).
(c)    Each Subsidiary identified in Schedule 5.4 is a corporation or other legal entity duly organized, validly existing and, where legally applicable, in good standing under the laws of its jurisdiction of organization, and is duly qualified as a foreign corporation or other legal entity and, where legally applicable, is in good standing in each other jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each such Subsidiary has the corporate or other power and authority to own or hold under lease the properties it purports to own or hold under lease and to transact the business it transacts and proposes to transact.
(d)    No Subsidiary is a party to, or otherwise subject to any legal, regulatory, contractual or other restriction (other than any Financing Agreement, the agreements listed in Schedule 5.4 and customary limitations imposed by corporate law or similar statutes) restricting the ability of such Subsidiary to pay

-7-




dividends out of profits or make any other similar distributions of profits to the Parent Guarantor or any of its Subsidiaries that owns outstanding shares of capital stock or similar equity interests of such Subsidiary.
Section 5.5.    Financial Statements; Material Liabilities. The Obligors have delivered to each Purchaser copies of the financial statements of the Parent Guarantor and its Subsidiaries listed in Schedule 5.5. All of said financial statements (including in each case the related schedules and notes) fairly present in all material respects the consolidated financial position of the Parent Guarantor and its Subsidiaries as of the respective dates specified in such Schedule and the consolidated results of their operations and cash flows for the respective periods so specified and have been prepared in accordance with GAAP consistently applied throughout the periods involved except as set forth in the notes thereto (subject, in the case of any interim financial statements, to normal year-end adjustments). The Parent Guarantor and its Subsidiaries do not have any Material liabilities that are not disclosed on such financial statements or otherwise disclosed in the Disclosure Documents.
Section 5.6.    Compliance with Laws, Other Instruments, Etc. The execution, delivery and performance of its obligations by each Obligor of each Financing Agreement to which such Obligor is a party (including in the case of the Company, the Notes) will not (i) result in any breach of, or constitute a default under, or result in the creation of any Lien (except, with respect to Liens to secure the Senior Secured Indebtedness, as contemplated by the Transaction Facilities) in respect of any property of either Obligor or any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter or by-laws, or any other financial agreement or instrument to which either Obligor or any Subsidiary is bound or by which any Obligor or any Subsidiary or any of their respective properties may be bound or affected, (ii) violate any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to either Obligor or any Subsidiary or (iii) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to any Obligor or any Subsidiary.
Section 5.7.    Governmental Authorizations, Etc. No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required to be obtained or made by any Obligor pursuant to any statute, regulation, rule or applicable to it as a condition to the effectiveness or the enforceability of the execution, delivery or performance by either Obligor of any Financing Agreement to which it is a party (including in the case of the Company, the Notes), including, without limitation, any thereof required in connection with the obtaining of Dollars to make payments under the Financing Agreements (including in the case of the Company, the Notes) and the payment of such Dollars to Persons resident in the United States of America. It is not necessary to ensure the legality, validity, enforceability or admissibility into evidence in The Netherlands of any Financing Agreement or the Notes that any thereof or any other document be filed, recorded or enrolled with any Governmental Authority, or that any such agreement or document be stamped with any stamp, registration or similar transaction tax.
Section 5.8.    Litigation; Observance of Agreements, Statutes and Orders. (a) There are no actions, suits, investigations or proceedings pending or, to the knowledge of either Obligor, threatened against or affecting either Obligor or any Subsidiary or any property of either Obligor or any Subsidiary

-8-




in any court or before any arbitrator of any kind or before or by any Governmental Authority that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(b)    None of the Obligors or any Subsidiary is (i) in default under any term of any agreement or instrument to which it is a party or by which it is bound, (ii) in violation of any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority or (iii) in violation of any statute, rule or regulation of any Governmental Authority applicable to it (including, without limitation and if applicable, Environmental Laws, the USA Patriot Act or any of the other laws and regulations that are referred to in Section 5.16), which default or violation, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 5.9.    Taxes. Each Obligor and each Subsidiary has filed all Material tax returns that are required to have been filed in any jurisdiction, and have paid all taxes shown to be due and payable on such returns and all other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (i) the amount of which is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which either Obligor or a Subsidiary, as the case may be, has established adequate reserves in accordance with GAAP. The Obligors know of no basis for any other tax or assessment that would reasonably be expected to have a Material Adverse Effect. The charges, accruals and reserves on the books of each of the Obligors and their Subsidiaries in respect of federal, state or other taxes for all fiscal periods are adequate. The tax liabilities for the account of any Governmental Authority of The Netherlands of the Parent Guarantor and its Subsidiaries and the U.S. federal income tax liabilities of the Company and its Subsidiaries, in each case, have been finally determined (whether by reason of completed audits or the statute of limitations having run) for all fiscal years up to and including the fiscal year ended 2007 and 2007, respectively.
No liability for any Tax, directly or indirectly, imposed, assessed, levied or collected by or for the account of any Governmental Authority of The Netherlands or any political subdivision thereof will be incurred by the Parent Guarantor or any holder of a Note as a result of the execution or delivery of any Financing Agreement or the Notes and no deduction or withholding in respect of Taxes imposed by or for the account of The Netherlands or, to the knowledge of the Parent Guarantor, any other Taxing Jurisdiction, is required to be made from any payment by the Parent Guarantor under any Financing Agreement or the Notes except for any such liability, withholding or deduction imposed, assessed, levied or collected by or for the account of any such Governmental Authority of The Netherlands arising out of circumstances described in clause (a), (b) or (c) of Section 13.
Section 5.10.    Title to Property; Leases. Each Obligor and its Subsidiaries have good and sufficient title to their respective properties that individually or in the aggregate are Material, including all such properties reflected in the most recent audited balance sheet referred to in Section 5.5 or purported to have been acquired by either Obligor or any Subsidiary after said date (except as sold or otherwise disposed of in the ordinary course of business), in each case free and clear of Liens prohibited by this Agreement. All

-9-




leases in which an Obligor or Initial Subsidiary Guarantor is a party as a lessee, which individually or in the aggregate are Material, are valid and subsisting and are in full force and effect in all material respects.
Section 5.11.    Licenses, Permits, Etc. (a) Each Obligor and its Subsidiaries owns or possesses all licenses, permits, franchises, authorizations, patents, copyrights, proprietary software, service marks, trademarks and trade names, or rights thereto, that individually or in the aggregate are Material, without known conflict with the rights of others.
(b)    To the best knowledge of each Obligor, no product of either Obligor or any of their Subsidiaries infringes in any material respect any license, permit, franchise, authorization, patent, copyright, proprietary software, service mark, trademark, trade name or other right owned by any other Person.
(c)    To the best knowledge of each Obligor, there is no Material violation by any Person of any right of either Obligor or any of their Subsidiaries with respect to any patent, copyright, proprietary software, service mark, trademark, trade name or other right owned or used by the Obligors or any of their Subsidiaries.
Section 5.12.    Compliance with ERISA. (a) Each Obligor and each ERISA Affiliate have operated and administered each Plan in compliance with all applicable laws except for such instances of noncompliance as have not resulted in and would not reasonably be expected to result in a Material Adverse Effect. Neither any Obligor nor any ERISA Affiliate has incurred any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to Employee Benefit Plans, and no event, transaction or condition has occurred or exists that could reasonably be expected to result in the incurrence of any such liability by any Obligor or any ERISA Affiliate, or in the imposition of any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to section 430(k) of the Code or to any such penalty or excise tax provisions under the Code or federal law or section 4068 of ERISA, other than such liabilities or Liens as would not be individually or in the aggregate Material.
(b)    The present value of the aggregate benefit liabilities under each of the Plans (other than Multiemployer Plans), determined as of the end of such Plan’s most recently ended plan year on the basis of the actuarial assumptions specified for funding purposes in such Plan’s most recent actuarial valuation report, did not exceed the aggregate current value of the assets of such Plan allocable to such benefit liabilities by more than $49,058,000 in the case of any single Plan and by more than $57,186,000 in the aggregate for all Plans. The present value of the accrued benefit liabilities (whether or not vested) under each Non-U.S. Plan that is funded, determined as of the end of the Parent Guarantor’s most recently ended fiscal year on the basis of reasonable actuarial assumptions, did not exceed the current value of the assets of such Non-U.S. Plan allocable to such benefit liabilities by more than $57,096,000. The term “benefit liabilities” has the meaning specified in section 4001 of ERISA and the terms “current value” and “present value” have the meaning specified in section 3 of ERISA.


-10-




(c)    None of the Obligors or their ERISA Affiliates have incurred (i) withdrawal liabilities (and are not subject to contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer Plans that individually or in the aggregate are Material or (ii) any obligation in connection with the termination of or withdrawal from any Non U.S. Plan.
(d)    The expected postretirement benefit obligation (determined as of the last day of the Parent Guarantor’s most recently ended fiscal year in accordance with Financial Accounting Standards Board Statement No. 106, without regard to liabilities attributable to continuation coverage mandated by section 4980B of the Code) of any Obligor and its Subsidiaries is $55,058,000.
(e)    The execution and delivery of the Financing Agreements and the issuance and sale of the Notes hereunder will not involve any transaction that is subject to the prohibitions of section 406 of ERISA or in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code. The representation by the Obligors to each Purchaser in the first sentence of this Section 5.12(e) is made in reliance upon and subject to the accuracy of such Purchaser’s representation in Section 6.2 as to the sources of the funds used to pay the purchase price of the Notes to be purchased by such Purchaser.
(f)    All Non-U.S. Plans have been established, operated, administered and maintained in compliance with all laws, regulations and orders applicable thereto, except where failure so to comply could not be reasonably expected to have a Material Adverse Effect. All premiums, contributions and any other amounts required by applicable Non-U.S. Plan documents or applicable laws to be paid or accrued by the Obligors and their Subsidiaries have been paid or accrued as required, except where failure so to pay or accrue would not be reasonably expected to have a Material Adverse Effect.
Section 5.13.    Private Offering. Neither any Obligor nor anyone acting on its behalf has offered the Notes, the Parent Guarantee, the Subsidiary Guarantees or any similar securities for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any person other than the Purchasers and not more than 45 other Institutional Investors (as defined in clause (c) of the definition of such term), each of which has been offered the Notes at a private sale for investment. Neither any Obligor nor anyone acting on its behalf has taken, or will take, any action that would subject the issuance or sale of the Notes to the registration requirements of Section 5 of the Securities Act or to the registration requirements of any securities or blue sky laws of any applicable jurisdiction.
Section 5.14.    Use of Proceeds; Margin Regulations. The proceeds of the sale of the Notes will be deposited at Closing with the Escrow Agent, and the disbursements of such proceeds by the Escrow Agent will be governed by the Escrow Agreement. If proceeds of the sale of the Notes are released by the Escrow Agent to or at the direction of the Company (other than for the purpose provided in Section 8.8), the Company will apply the proceeds of the sale of the Notes to finance the acquisition of The Shaw Group, Inc., to refinance associated bridge credit facilities, and for general corporate purposes. No part of the proceeds from the sale of the Notes hereunder will be used, directly or indirectly, (a) for the purpose of buying or carrying any margin stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or trading in any securities

-11-




under such circumstances as to involve either Obligor in a violation of Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a violation of Regulation T of said Board (12 CFR 220) or (b) to finance dealings or transactions with any Person described or designated in the Specially Designated Nationals and Blocked Person List published by OFAC or in Section 1 of the Anti-Terrorism Order. Margin stock does not constitute more than 5% of the value of the consolidated assets of the Parent Guarantor and its Subsidiaries and neither Obligor has any present intention that margin stock will constitute more than 5% of the value of such assets. As used in this Section, the terms “margin stock” and “purpose of buying or carrying” shall have the meanings assigned to them in said Regulation U.
Section 5.15.    Existing Indebtedness; Future Liens. (a) Except as described therein, Schedule 5.15 sets forth a complete and correct list of (i) all outstanding Indebtedness of the Parent Guarantor and its Subsidiaries as of September 30, 2012 (including a description of the obligors, principal amount outstanding and general description of the collateral therefor, if any, and Guaranty thereof, if any), since which date there has been no Material change in the amounts, interest rate, index or formula, sinking funds, installment payments or maturities of such Indebtedness of the Parent Guarantor or its Subsidiaries and (ii) all agreements providing for committed financing facilities (subject to the terms and conditions specified therein) to the Parent Guarantor or its Subsidiaries as of the date of Closing. Neither any Obligor nor any Subsidiary is in default and no waiver of default is currently in effect, in the payment of any principal or interest on any Indebtedness either Obligor or such Subsidiary and no event or condition exists with respect to any Indebtedness of any Obligor or any Subsidiary the outstanding principal amount of which exceeds $1,000,000 that would permit (or that with notice or the lapse of time, or both, would permit) one or more Persons to cause such Indebtedness to become due and payable before its stated maturity or before its regularly scheduled dates of payment.
(b)    Except as disclosed in Schedule 5.15, neither any Obligor nor any Subsidiary has agreed or consented to cause or permit in the future (upon the happening of a contingency or otherwise) any of its property, whether now owned or hereafter acquired, to be subject to a Lien not permitted by Section 10.6.
(c)    Neither any Obligor nor any Subsidiary is a party to, or otherwise subject to any provision contained in, any instrument evidencing Indebtedness of such Obligor or such Subsidiary, any agreement relating thereto or any other agreement (including, but not limited to, its charter or other organizational document) which limits the amount of, or otherwise imposes restrictions on the incurring of, Indebtedness of such Obligor, except as specifically indicated in Schedule 5.15.
Section 5.16.    Foreign Assets Control Regulations, Etc. (a) None of the Obligors or any Controlled Entity is (i) a Person whose name appears on the list of Specially Designated Nationals and Blocked Persons published by the Office of Foreign Assets Control, U.S. Department of Treasury (“OFAC”) or in Section 1 of the Anti-Terrorism Order (an “OFAC / Anti-Terrorism Order Listed Person”), (ii) a Person officially sanctioned by the government of the United States or The Netherlands pursuant to any AML/ Terrorist Laws (an “AML/Terrorist Law Listed Person” and, together with any OFAC/Anti-Terrorism Order Listed Person, a “Listed Person”), (iii) a department, agency or instrumentality of, or is otherwise controlled by or acting on behalf of, directly or indirectly, (x) any Listed Person or (y) the government of a country subject

-12-




to comprehensive U.S. economic sanctions administered by OFAC, currently Iran, Sudan, Cuba, Burma, Syria, Libya and North Korea (a “Restricted Country”, and each Listed Person and each Restricted Country, individually and collectively, a “Blocked Person”) or (iv) has any investments in, or knowingly (as such term is defined in Section 101(6) of CISADA) engages in any dealings or transactions with, any Blocked Person where such investments, dealings, or transactions would result in either (A) the Obligors being in violation of applicable law in any material respect or (B) any Purchaser being in violation of any OFAC Sanctions Laws. None of the Obligors or any Controlled Entity is engaged in any activities that could subject such Person or the Purchasers to sanctions under the Iran Threat Reduction Act and Syria Human Rights Act of 2012.
(b)    No part of the proceeds from the sale of the Notes hereunder constitutes or will constitute funds obtained on behalf of any Blocked Person or will otherwise knowingly (as such term is defined in Section 101(6) of CISADA) be used, directly or indirectly, by the Obligors or any Controlled Entity in connection with any investment in, or any transactions or dealings with, any Blocked Person.
(c)    To the Obligors’ actual knowledge after making due inquiry, no Obligor or Controlled Entity (i) is under investigation by any Governmental Authority for, or has not been charged with, or convicted of, money laundering or terrorist-related activities under any applicable law (collectively, “AML/Terrorist Laws”), (ii) has been assessed civil penalties under any AML/Terrorist Laws or (iii) has had any of its funds seized or forfeited in an action under any AML/Terrorist Laws. The Obligors taken reasonable measures appropriate to the circumstances (in any event as required by applicable law) to seek to ensure that the Obligors and each Controlled Entity are in compliance with all AML/Terrorist Laws applicable to it.
(d)    No part of the proceeds from the sale of the Notes hereunder will knowingly (as such term is defined in Section 101(6) of CISADA) be used, directly or indirectly, by the Obligors for any improper payments to any governmental official or employee, political party, official of a political party, candidate for political office or anyone else acting in an official capacity, in order to improperly obtain, retain or direct business or obtain any improper advantage. The Obligors have taken reasonable measures appropriate to the circumstances (in any event as required by applicable law) to seek to ensure the Obligors and each Controlled Entity are in compliance with all anti-corruption laws and regulations applicable to it.
Section 5.17.    Status under Certain Statutes. Neither any Obligor nor any Subsidiary is subject to regulation under the Investment Company Act of 1940, as amended, the Public Utility Holding Company Act of 2005, as amended, the ICC Termination Act of 1995, as amended, or the Federal Power Act, as amended.
Section 5.18.    Environmental Matters. (a) Neither Obligor nor any Subsidiary has knowledge of any claim or has received any notice of any claim, and no proceeding has been instituted raising any claim against either Obligor or any of its Subsidiaries or relating to their operations on any of their respective real properties now or formerly owned, leased or operated by any of them or other assets, alleging any

-13-




damage to the environment or violation of any Environmental Laws, except, in each case, such as would not reasonably be expected to result in a Material Adverse Effect.
(b)    Neither Obligor nor any Subsidiary has knowledge of any facts which would give rise to any claim, public or private, of violation of Environmental Laws or damage to the environment emanating from, occurring on or in any way related to real properties now or formerly owned, leased or operated by any of them or to other assets or their use, except, in each case, such as would not reasonably be expected to result in a Material Adverse Effect.
(c)    Neither Obligor nor any Subsidiary has stored any Hazardous Materials on real properties now or formerly owned, leased or operated by any of them and has not disposed of any Hazardous Materials in a manner contrary to any Environmental Laws in each case in any manner that would reasonably be expected to result in a Material Adverse Effect; and
(d)    All buildings on all real properties now owned, leased or operated by each Obligor or any Subsidiary are in compliance with applicable Environmental Laws, except where failure to comply would not reasonably be expected to result in a Material Adverse Effect.
Section 5.19.    Notes Rank Pari Passu. The payment obligations of each Obligor under this Agreement (including the Parent Guarantor) rank and, upon issuance, the Notes (in the case of the Company) will rank, at least pari passu in right of payment with (a) prior to the Collateral Effective Date, all other unsecured and unsubordinated Indebtedness (actual or contingent) of such Obligor, including, without limitation, all unsecured Indebtedness of the Obligors described on Schedule 5.15 hereto, which is not therein designated as subordinated Indebtedness and (b) from and after the Collateral Effective Date, all Senior Secured Indebtedness outstanding under the Transaction Facilities.
Section 5.20.    Perfection of Escrowed Closing Proceeds. The security interest granted pursuant to each Account Control Agreement constitutes a valid and continuing perfected security interest in favor of the Purchasers in all Escrowed Closing Proceeds.
SECTION 6.
REPRESENTATIONS OF THE PURCHASERS.
Section 6.1.    Purchase for Investment; Accredited Investor. (a) Each Purchaser severally represents that it is purchasing the Notes for its own account or for one or more separate accounts maintained by such Purchaser or for the account of one or more pension or trust funds and not with a view to the distribution thereof, provided that the disposition of such Purchaser’s or their property shall at all times be within such Purchaser’s or their control. Each Purchaser understands that the Notes have not been registered under the Securities Act and may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, except under circumstances where neither such registration nor such an exemption is required by law, and that the Company is not required to register the Notes.

-14-




(b)    Each Purchaser severally represents that it is an “accredited investor” within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 of Regulation D under the Securities Act.
Section 6.2.    Source of Funds. Each Purchaser severally represents that at least one of the following statements is an accurate representation as to each source of funds (a “Source”) to be used by such Purchaser to pay the purchase price of the Notes to be purchased by such Purchaser hereunder:
(a)    the Source is an “insurance company general account” (as the term is defined in the United States Department of Labor’s Prohibited Transaction Exemption (“PTE”) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any Employee Benefit Plan together with the amount of the reserves and liabilities for the general account contract(s) held by or on behalf of any other Employee Benefit Plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account (as defined in Section 3 of ERISA (“Separate Account”)) liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile; or
(b)    the Source is a Separate Account that is maintained solely in connection with such Purchaser’s fixed contractual obligations under which the amounts payable, or credited, to any Employee Benefit Plan (or its related trust) that has any interest in such Separate Account (or to any participant or beneficiary of such plan (including any annuitant)) are not affected in any manner by the investment performance of the Separate Account; or
(c)    the Source is either (i) an insurance company pooled Separate Account, within the meaning of PTE 90-1 or (ii) a bank collective investment fund, within the meaning of the PTE 91-38 and, except as disclosed by such Purchaser to the Company in writing pursuant to this clause (c), no Employee Benefit Plan or group of plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled Separate Account or collective investment fund; or
(d)    the Source constitutes assets of an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption), no Employee Benefit Plan’s assets that are managed by the QPAM in such investment fund, when combined with the assets of all other Employee Benefit Plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM maintains an ownership interest in the Company that would cause the QPAM and the Company to be “related”

-15-




within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any Employee Benefit Plans whose assets in the investment fund, when combined with the assets of all other Employee Benefit Plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 20% or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause (d); or
(e)    the Source constitutes assets of a “plan(s)” (within the meaning of section IV of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in section IV(d) of the INHAM Exemption) owns a 5% or more interest in the Company and (i) the identity of such INHAM and (ii) the name(s) of the Employee Benefit Plan(s) whose assets constitute the Source have been disclosed to the Company in writing pursuant to this clause (e); or
(f)    the Source is a governmental plan (as defined in Section 3 of ERISA); or
(g)    the Source is one or more Employee Benefit Plans, or a separate account or trust fund comprised of one or more Employee Benefit Plans, each of which has been identified to the Company in writing pursuant to this clause (g); or
(h)    the Source does not include assets of any Employee Benefit Plan, other than a plan exempt from the coverage of ERISA.
SECTION 7.
INFORMATION AS TO OBLIGORS.
Section 7.1.    Financial and Business Information. The Obligors shall deliver to each holder of Notes that is an Institutional Investor:
(a)    Quarterly Statements — within 45 days (or such shorter period as is 15 days greater than the period applicable to the filing of the Parent Guarantor’s Quarterly Report on Form 10‑Q (the “Form 10‑Q”) with the SEC regardless of whether the Parent Guarantor is subject to the filing requirements thereof) after the end of each quarterly fiscal period in each fiscal year of the Parent Guarantor (other than the last quarterly fiscal period of each such fiscal year), copies of,
(i)    a consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at the end of such quarter, and


-16-




(ii)    consolidated statements of income, changes in shareholders’ equity and cash flows of the Parent Guarantor and its Subsidiaries, for such quarter and (in the case of the second and third quarters) for the portion of the fiscal year ending with such quarter, and
(iii)    a consolidating balance sheet of the Parent Guarantor and its Subsidiaries as at the end of such quarters and consolidating statements of income of the Parent Guarantor and its Subsidiaries, for such quarter and (in the case of the second and third quarters) for the portion of the fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for the corresponding periods in the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP applicable to quarterly financial statements generally, and certified by a Senior Financial Officer as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows, subject to changes resulting from year-end adjustments, provided that delivery within the time period specified above of copies of the Parent Guarantor’s Form 10‑Q prepared in compliance with the requirements therefor and filed with the SEC (but only so long as such Form 10‑Q includes the consolidating financial statements required hereby) shall be deemed to satisfy the requirements of this Section 7.1(a), provided, further, that the Obligors shall be deemed to have made such delivery of such Form 10‑Q if any of them shall have timely made such Form 10‑Q available on “EDGAR” (or any successor filing system) and on its home page on the worldwide web (at the date of this Agreement located at: http//www.cbi.com) and shall have given each Purchaser prior notice of such availability on EDGAR (or any successor filing system) and on its home page in connection with each delivery (such availability and notice thereof being referred to as “Electronic Delivery”);
(b)    Annual Statements — within 90 days (or such shorter period as is 15 days greater than the period applicable to the filing of the Parent Guarantor’s Annual Report on Form 10‑K (the “Form 10‑K”) with the SEC regardless of whether the Parent Guarantor is subject to the filing requirements thereof) after the end of each fiscal year of the Parent Guarantor, copies of
(i)    a consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at the end of such year, and
(ii)    consolidated statements of income, changes in shareholders’ equity and cash flows of the Parent Guarantor and its Subsidiaries for such year, and
(iii)     an unaudited consolidating balance sheet of the Parent Guarantor and its Subsidiaries as at the end of such year and consolidating statements of income of the Parent Guarantor and its Subsidiaries for such year,


-17-




setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP (except with respect to Section 7.1(b)(iii)), and except with respect to Section 7.1(b)(iii) accompanied by an opinion thereon (without a “going concern” or similar qualification or exception and without any qualification or exception as to the scope of the audit on which such opinion is based) of independent public accountants of recognized national standing, which opinion shall state that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with GAAP, and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and that such audit provides a reasonable basis for such opinion in the circumstances,
provided that the delivery within the time period specified above of the Parent Guarantor’s Form 10‑K for such fiscal year (together with the Parent Guarantor’s annual report to shareholders, if any, prepared pursuant to Rule 14a‑3 under the Exchange Act) prepared in accordance with the requirements therefor and filed with the SEC (but only so long as such Form 10‑K includes the consolidating financial statements required hereby) shall be deemed to satisfy the requirements of this Section 7.1(b), provided, further, that the Obligors shall be deemed to have made such delivery of such Form 10‑K if any of them shall have timely made Electronic Delivery thereof;
(c)    Budgets; Business Plans; Financial Projections – as soon as practicable and in any event not later than one hundred twenty (120) days after the beginning of each fiscal year commencing with the fiscal year beginning January 1, 2018, a copy of the plan and forecast (including a projected balance sheet, income statement and a statement of cash flow) of the Parent Guarantor and its Subsidiaries for the upcoming three (3) fiscal years prepared in such detail as shall be reasonably satisfactory to the Required Holders;
(d)    Additional Quarterly Reports – within the time period set forth in Section 7.1(a) above, and in addition to the information to be provided pursuant to Section 7.1(a), a report of a Senior Financial Officer of the Parent Guarantor setting forth (i) a cash forecast report with such detail and requirements as to be determined among the Required Holders, the Financial Advisor and the Parent Guarantor, (ii) a discussion of the status of, and material developments with respect to, the 10 largest projects and for each other project for which material deviations from budget or schedule have developed, (iii) a discussion of the status of, and material developments during the quarter then ended, with respect to all material litigation, and (iv) such other matters as requested by the holders;
(e)    SEC and Other Reports — promptly upon their becoming available, one copy of (i) each financial statement, report, notice or proxy statement sent by the Parent Guarantor or any Subsidiary to its principal lending banks as a whole (excluding information sent to such banks in the ordinary course of administration of a bank facility, such as information relating to pricing and borrowing availability) or to its public securities holders generally, and (ii) each regular or periodic

-18-




report, each registration statement (without exhibits except as expressly requested by such holder), each prospectus and all amendments thereto and each press release filed by the Parent Guarantor or any Subsidiary with the SEC or any other similar governmental or regulatory body in any non-U.S. jurisdiction, provided that the Obligors shall be deemed to have made such delivery of the items provided for by this clause (c) if any of them shall have made an Electronic Delivery thereof (without regard to any notice requirement provided in such defined term);
(f)    Notice of Default or Event of Default — promptly, and in any event within five Business Days after a Responsible Officer (i) has knowledge of the existence of any Default or Event of Default or (ii) has received (A) any written notice of, or taken any action with respect to, a Default claimed hereunder or (B) any written notice or taken any action with respect to a claimed default of the type referred to in Section 11(g), a written notice specifying the nature and period of existence thereof and what action the Obligors are taking or propose to take with respect thereto;
(g)    ERISA Matters — promptly, and in any event within five Business Days after a Responsible Officer has knowledge of any of the following, a written notice setting forth the nature thereof and the action, if any, that an Obligor or an ERISA Affiliate proposes to take with respect thereto:
(i)    with respect to any Plan, any reportable event, as defined in section 4043(c) of ERISA and the regulations thereunder, for which notice thereof has not been waived pursuant to such regulations as in effect on the date hereof; or
(ii)    the taking by the PBGC of steps to institute, or the threatening by the PBGC of the institution of, proceedings under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by any Obligor or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan; or
(iii)    any event, transaction or condition that reasonably could result in the incurrence of any liability by any Obligor or any ERISA Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to Employee Benefit Plans, or in the imposition of any Lien on any of the rights, properties or assets of any Obligor or any ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or Lien, taken together with any other such liabilities or Liens then existing, would reasonably be expected to have a Material Adverse Effect; or
(iv)    receipt of notice of the imposition of a financial penalty greater than U.S.$5,000,000 (which for this purpose shall mean any tax, penalty or other liability, whether by way of indemnity or otherwise) with respect to one or more Non-U.S. Plans;


-19-




(h)    Notices from Governmental Authority — promptly, and in any event within 30 days of receipt thereof, copies of any notice to any Obligor or any Subsidiary from any Federal or state Governmental Authority relating to any order, ruling, statute or other law or regulation that would reasonably be expected to have a Material Adverse Effect;
(i)    Bridge Facility — promptly upon the execution and delivery of the Bridge Facility, a true, correct and complete copy of the Bridge Facility; and
(j)    Special Mandatory Offers of Prepayment — prompt written notice of (i) the occurrence of any Disposition of property or assets, (ii) the incurrence or issuance of any Indebtedness, or (iii) the occurrence of any sale of Capital Stock, in each case, giving rise to the mandatory offers of prepayment provisions in Section 9.14;
(k)    Specified Requested Information – promptly, and in any event within 30 days of the Sixth Amendment Effective Date, the following data and information: (i) a legal organization chart, (ii) a description of the terms of the surety bonds and what conditions, if any, trigger additional collateral or repricing of such surety bonds, (iii) a forecast of the Parent Guarantor’s income statement, balance sheet and cash flow, (iv) information relating to liquidity of the Parent Guarantor and its Subsidiaries, (v) the GAAP book value of the Collateral being pledged, by category, and a description of assets of the Parent Guarantor and its Subsidiaries not being pledged as Collateral and the value of such assets, (vi) consolidating income statement and balance sheet of the Parent Guarantor and its Subsidiaries for the prior fiscal year and most recently ended fiscal quarter, and (vii) confirmation that the Company has the authorization to issue the equity through an at-the-market program; and
(l)    Requested Information — with reasonable promptness, such other data and information relating to the business, operations, affairs, financial condition, assets or properties of any Obligor or any of its Subsidiaries (including, but without limitation, actual copies of the Parent Guarantor’s Form 10‑Q and Form 10‑K) or relating to the ability of each Obligor to perform its obligations hereunder and under the Notes (in the case of the Company) as from time to time may be reasonably requested by any such holder of Notes or by the Financial Advisor.
Section 7.2.    Officer’s Certificate. Each set of financial statements delivered to a holder of Notes pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a Senior Financial Officer setting forth (which, in the case of Electronic Delivery of any such financial statements, shall be by separate concurrent delivery of such certificate to each holder of Notes):
(a)    Covenant Compliance — the information (including detailed calculations) required in order to establish whether the Obligors were in compliance with the requirements of Section 10.3 or Section 10.6 through Section 10.10, inclusive, during the quarterly or annual period covered by the statements then being furnished (including (x) with respect to each such Section, where applicable, the calculations of the maximum or minimum amount, ratio or percentage, as the case may be, permissible under the terms of such Sections, and the calculation of the amount, ratio or

-20-




percentage then in existence and (y) beginning with the fiscal quarter ending December 31, 2016, the quarterly EBITDA associated with the Obligors’ Capital Services business group for each of the preceding four fiscal quarters ended as of the fiscal quarter or fiscal year end covered by such certificate, continuing until such business group is sold). In the event that the Company or any Subsidiary has made an election to measure any financial liability using fair value (which election is being disregarded for purposes of determining compliance with this Agreement pursuant to Section 24.3) as to the period covered by any such financial statement, such Senior Financial Officer’s certificate as to such period shall include a reconciliation from GAAP with respect to such election; and
(b)    Event of Default — a statement that such Senior Financial Officer has reviewed the relevant terms hereof and has made, or caused to be made, under his or her supervision, a review of the transactions and conditions of the Obligors and their Subsidiaries from the beginning of the quarterly or annual period covered by the statements then being furnished to the date of the certificate and that such review shall not have disclosed the existence during such period of any condition or event that constitutes a Default or an Event of Default or, if any such condition or event existed or exists (including, without limitation, any such event or condition resulting from the failure of any Obligor or any Subsidiary to comply with any Environmental Law), specifying the nature and period of existence thereof and what action the Obligors shall have taken or proposes to take with respect thereto.
Section 7.3.    Visitation. The Obligors shall permit the representatives of each holder of Notes that is an Institutional Investor:
(a)    No Default — if no Default or Event of Default then exists, at the expense of such holder and upon reasonable prior notice to any Obligor, to visit the principal executive office of any Obligor, to discuss the affairs, finances and accounts of the Obligors and their Subsidiaries with each Obligor’s officers, and (with the consent of the such Obligor, which consent will not be unreasonably withheld) its independent public accountants, and (with the consent of such Obligor, which consent will not be unreasonably withheld) to visit the other offices and properties of the Parent Guarantor and each Subsidiary, all at such reasonable times and as often as may be reasonably requested in writing; and
(b)    Default — if a Default or Event of Default then exists, at the expense of the Obligors to visit and inspect any of the offices or properties of any Obligor or any Subsidiary, to examine all their respective books of account, records, reports and other papers, to make copies and extracts therefrom, and to discuss their respective affairs, finances and accounts with their respective officers and (with the consent of an Obligor, which consent shall not be unreasonably withheld or delayed) independent public accountants, all at such times and as often as may be reasonably requested.
Section 7.4.    Limitation on Disclosure Obligation.

-21-




The Obligors shall not be required to disclose the following information pursuant to Section 7.1(l) or 7.3:
(a)    information that the Obligors determine after consultation with counsel qualified to advise on such matters that, notwithstanding the confidentiality requirements of Section 21, they would be prohibited from disclosing by applicable law or regulations without making public disclosure thereof; or
(b)    information that, notwithstanding the confidentiality requirements of Section 21, the Obligors are prohibited from disclosing by the terms of an obligation of confidentiality contained in any agreement with any non-Affiliate binding upon the Obligors and not entered into in contemplation of this clause (b), provided that the Obligors shall use commercially reasonable efforts to obtain consent from the party in whose favor the obligation of confidentiality was made to permit the disclosure of the relevant information and provided further that the Obligors have received a written opinion of counsel confirming that disclosure of such information without consent from such other contractual party would constitute a breach of such agreement.
Promptly after a request therefor from any holder of Notes that is an Institutional Investor, the Obligors will provide such holder with a written opinion of counsel (which may be addressed to the Obligors) relied upon as to any requested information that the Obligors are prohibited from disclosing to such holder under circumstances described in this Section 7.4.
SECTION 8.
PAYMENT AND PREPAYMENT OF THE NOTES.
Section 8.1.    Maturity. As provided therein, the entire unpaid principal balance of the Series A Notes, the Series B Notes, the Series C Notes and the Series D Notes shall be due and payable on the respective stated maturity dates thereof.
Section 8.2.    Optional Prepayments with Make-Whole Amount. The Company may, at its option, upon notice as provided below, prepay at any time all, or from time to time any part of, the Notes, in an amount not less than 10% of the aggregate principal amount of the Notes then outstanding in the case of a partial prepayment, at 100% of the principal amount so prepaid, and the Make-Whole Amount determined for the prepayment date with respect to such principal amount. The Company will give each holder of Notes written notice of each optional prepayment under this Section 8.2 not less than 30 days and not more than 60 days prior to the date fixed for such prepayment. Each such notice shall specify such date (which shall be a Business Day), the aggregate principal amount of such Notes to be prepaid on such date, the principal amount of such Note held by such holder to be prepaid (determined in accordance with Section 8.3), and the interest to be paid on the prepayment date with respect to such principal amount being prepaid, and shall be accompanied by a certificate of a Senior Financial Officer as to the estimated Make-Whole Amount due in connection with such prepayment (calculated as if the date of such notice were the date of the prepayment), setting forth the details of such computation. Two Business Days prior to such prepayment, the Company shall deliver to each holder of Notes a certificate of a Senior Financial Officer specifying the calculation of such Make-Whole Amount as of the specified prepayment date.

-22-




Section 8.3.    Allocation of Partial Prepayments. In the case of each partial prepayment of the Notes, other than any offer of prepayment of the Notes pursuant to Section 8.5, 8.7 or 10.3(a) that has been rejected by any holder or holders of Notes, the principal amount of the Notes shall be allocated among all of the Notes at the time outstanding in proportion, as nearly as practicable, to the respective unpaid principal amounts thereof not theretofore called for prepayment.
Section 8.4.    Maturity; Surrender, Etc.    In the case of each prepayment of Notes pursuant to this Section 8, the principal amount of each Note to be prepaid shall mature and become due and payable on the date fixed for such prepayment (which shall be a Business Day), together with interest on such principal amount accrued to such date and the applicable Make-Whole Amount, if any. From and after such date, unless the Company shall fail to pay such principal amount when so due and payable, together with the interest and Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall cease to accrue. Any Note paid or prepaid in full shall be surrendered to the Company and cancelled and shall not be reissued, and no Note shall be issued in lieu of any prepaid principal amount of any Note.
Section 8.5.    Purchase of Notes. The Obligors will not and will not permit any of their Affiliates to purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of the outstanding Notes except (a) upon the payment or prepayment of the Notes in accordance with the terms of this Agreement and the Notes or (b) to a written offer to purchase any outstanding Notes made by any Obligor or an Affiliate pro rata to the holders of the Notes upon the same terms and conditions. Any such  offer shall provide each holder with sufficient information to enable it to make an informed decision with respect to such offer, and shall remain open for at least 10 Business Days. If the Required Holders accept such offer, the Company shall promptly notify the remaining holders of Notes of such fact and the expiration date for the acceptance by holders of Notes of such offer shall be extended by the number of days necessary to give each such remaining holder at least 5 Business Days from its receipt of such notice to accept such offer.  The Company will promptly cancel all Notes acquired by either Obligor or any of their Affiliates pursuant to any payment, prepayment or purchase of Notes pursuant to any provision of this Agreement and no Notes may be issued in substitution or exchange for any such Notes.
Section 8.6.    Make-Whole Amount.
“Make-Whole Amount” means, with respect to any Note, an amount equal to the excess, if any, of the Discounted Value of the Remaining Scheduled Payments with respect to the Called Principal of such Note over the amount of such Called Principal, provided that the Make-Whole Amount may in no event be less than zero. For the purposes of determining the Make-Whole Amount, the following terms have the following meanings:
“Called Principal” means, with respect to any Note, the principal of such Note that is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.
“Discounted Value” means, with respect to the Called Principal of any Note, the amount obtained by discounting all Remaining Scheduled Payments with respect to such Called Principal from their

-23-




respective scheduled due dates to the Settlement Date with respect to such Called Principal, in accordance with accepted financial practice and at a discount factor (applied on the same periodic basis as that on which interest on the Notes is payable) equal to the Reinvestment Yield with respect to such Called Principal.
“Reinvestment Yield” means, with respect to the Called Principal of any Note, 0.50% (i.e., 50 basis points) over the yield to maturity implied by (i) the yields reported as of 10:00 a.m. (New York City time) on the second Business Day preceding the Settlement Date with respect to such Called Principal, on the display designated as “Page PX1” (or such other display as may replace Page PX1) on Bloomberg Financial Markets for the most recently issued actively traded on the run U.S. Treasury securities having a maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date, or (ii) if such yields are not reported as of such time or the yields reported as of such time are not ascertainable (including by way of interpolation), the Treasury Constant Maturity Series Yields reported, for the latest day for which such yields have been so reported as of the second Business Day preceding the Settlement Date with respect to such Called Principal, in Federal Reserve Statistical Release H.15 (or any comparable successor publication) for actively traded on the run U.S. Treasury securities having a constant maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date.
In the case of each determination under clause (i) or clause (ii), as the case may be, of the preceding paragraph, such implied yield will be determined, if necessary, by (a) converting U.S. Treasury bill quotations to bond equivalent yields in accordance with accepted financial practice and (b) interpolating linearly between (1) the applicable actively traded on the run U.S. Treasury security with the maturity closest to and greater than such Remaining Average Life and (2) the applicable actively traded on the run U.S. Treasury security with the maturity closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Note.
“Remaining Average Life” means, with respect to any Called Principal, the number of years (calculated to the nearest one-twelfth year) obtained by dividing (i) such Called Principal into (ii) the sum of the products obtained by multiplying (a) the principal component of each Remaining Scheduled Payment with respect to such Called Principal by (b) the number of years (calculated to the nearest one-twelfth year) that will elapse between the Settlement Date with respect to such Called Principal and the scheduled due date of such Remaining Scheduled Payment.
“Remaining Scheduled Payments” means, with respect to the Called Principal of any Note, all payments of such Called Principal and interest thereon that would be due after the Settlement Date with respect to such Called Principal if no payment of such Called Principal were made prior to its scheduled due date, provided that if such Settlement Date is not a date on which interest payments are due to be made under the terms of the Notes, then the amount of the next succeeding scheduled interest payment will be reduced by the amount of interest accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to Section 8.2 or Section 12.1.

-24-




“Settlement Date” means, with respect to the Called Principal of any Note, the date on which such Called Principal is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.
Section 8.7.    Change of Control. (a) Notice of Change of Control. The Obligors will, within 20 Business Days after any Responsible Officer has knowledge of the occurrence of any Change of Control give written notice of such Change of Control to each holder of Notes. If a Change of Control has occurred, such notice shall contain and constitute an offer to prepay Notes as described in subparagraph (b) of this Section 8.7 and shall be accompanied by the certificate described in subparagraph (e) of this Section 8.7.
(b)    Offer to Prepay Notes. The offer to prepay Notes contemplated by subparagraph (a) of this Section 8.7 shall be an offer to prepay, in accordance with and subject to this Section 8.7, all, but not less than all, the Notes held by each holder (in this case only, “holder” in respect of any Note registered in the name of a nominee for a disclosed beneficial owner shall mean such beneficial owner) on a date specified in such offer (the “Proposed Prepayment Date”). If such Proposed Prepayment Date is in connection with an offer contemplated by subparagraph (a) of this Section 8.7, such date shall be not less than 30 days and not more than 60 days after the date of such offer (if the Proposed Prepayment Date shall not be specified in such offer, the Proposed Prepayment Date shall be the 45th day after the date of such offer).
(c)    Acceptance; Rejection. A holder of Notes may accept or reject the offer to prepay made pursuant to this Section 8.7 by causing a notice of such acceptance or rejection to be delivered to the Company at least 5 Business Days prior to the Proposed Prepayment Date. A failure by a holder of Notes to respond to an offer to prepay made pursuant to this Section 8.7, or to accept an offer as to all of the Notes held by the holder, in each case on or before the fifth (5th) Business Day preceding the Proposed Prepayment Date shall be deemed to constitute a rejection of such offer by such holder.
(d)    Prepayment. Prepayment of the Notes to be prepaid pursuant to this Section 8.7 shall be at 100% of the principal amount of such Notes, together with interest on such Notes accrued to the date of prepayment.
(e)    Officer’s Certificate. Each offer to prepay the Notes pursuant to this Section 8.7 shall be accompanied by a certificate, executed by a Senior Financial Officer of the Company and dated the date of such offer, specifying: (i) the Proposed Prepayment Date; (ii) that such offer is made pursuant to this Section 8.7; (iii) the principal amount of each Note offered to be prepaid; (iv) the interest that would be due on each Note offered to be prepaid, accrued to the Proposed Prepayment Date; (v) that the conditions of this Section 8.7 have been fulfilled; and (vi) in reasonable detail, the nature and date or proposed date of the Change of Control.
(f)    Effect on Required Payments. The amount of each payment of the principal of the Notes made pursuant to this Section 8.7 shall be applied against and reduce each of the then remaining principal payments due pursuant to Section 8.1 by a percentage equal to the aggregate principal amount of the Notes so paid divided by the aggregate principal amount of the Notes outstanding immediately prior to such payment.

-25-




(g)    “Change of Control” Defined. “Change of Control” means an event or series of events by which:
(1)    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 Parent Guarantor entitled to vote generally in the election of the directors of the Parent Guarantor; or
(2)    the majority of the board of directors of the Parent Guarantor fails to consist of Continuing Directors; or
(3)    except as expressly permitted under the terms of this Agreement, any Obligor or any Subsidiary that is a borrower under the Credit Agreement (each, a “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 an Obligor or any Subsidiary Borrower, in either event pursuant to a transaction in which the outstanding Capital Stock of such Obligor or such Subsidiary Borrower, as applicable, is reclassified or changed into or exchanged for cash, securities or other property; or
(4)    except as otherwise expressly permitted under the terms of this Agreement, the Parent Guarantor 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.
For purposes of the preceding definition, a “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 date of the Closing, 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.
Section 8.8.    Termination of Transaction Agreement or Failure to Consummate the Shaw Acquisition. (a)(1) If (A) the Transaction Agreement is terminated prior to the consummation of the Shaw Acquisition, (B) the Company does not consummate the Shaw Acquisition on or prior to June 30, 2013 or (C) the Escrowed Closing Proceeds have not been released from escrow in accordance with the terms of the Escrow Agreement on or prior to June 30, 2013 (each, a “Termination Event”), the Company shall provide written notice within one day of the occurrence of a Termination Event to each holder of Notes. Upon the occurrence of a Termination Event, the Company shall have the right to prepay, in accordance with and subject to Section 8.8(b), all, but not less than all, the outstanding Notes at the Termination Price

-26-




and (ii) a Termination Event, each holder of a Note shall have the right to require the Company to purchase all of its Notes at the Termination Price in accordance with and subject to Section 8.8(c), in each case, together with interest on all such Notes accrued to the date of prepayment or purchase by the Company, as applicable.
(2)    If an Escrow Agreement Default Event has occurred, the Company shall have the right to prepay, in accordance with and subject to Section 8.8(b), all, but not less than all, the outstanding Notes of any Objecting Holder at the Termination Price, together with interest on all such Notes accrued to the date of prepayment by the Company.
(b)    Right to Prepay Notes. If the Company exercises its right to prepay the outstanding Notes pursuant to subparagraph (a) of this Section 8.8, the Company shall provide prior written notice within ten (10) Business Days of any Termination Event or Default Termination Event (the “Termination Event Prepayment Notice”) to each holder or each Objecting Holder, as applicable, and shall prepay the Notes on a date specified in such notice, which date shall be not less than five (5) Business Days after the date of such notice (the “Termination Event Prepayment Date”). The Termination Event Prepayment Notice shall be accompanied by a certificate, executed by a Senior Financial Officer of the Company and dated the date of such notice, specifying: (i) the Termination Event Prepayment Date; (ii) that the prepayment of the Notes is being made pursuant to this Section 8.8; (iii) the principal amount of each Note being prepaid; (iv) the Termination Price of each Note being prepaid; and (v) the interest that would be due on each Note offered being prepaid, accrued to the Termination Event Prepayment Date.
(c)    Purchase of Notes. If the Company does not exercise its right to prepay the outstanding Notes pursuant to subparagraph (b) of this Section 8.8 with respect to a Termination Event (as evidenced by the provision of a Termination Event Prepayment Notice as set forth in such section with respect to such Termination Event), any holder (in this case only, “holder” in respect of any Note registered in the name of a nominee for a disclosed beneficial owner shall mean such beneficial owner) may require the Company to purchase all of the Notes held by such holder as contemplated by subparagraph (a) of this Section 8.8, by providing a written request to the Company within forty-five (45) Business Days of any Termination Event (each, a “Termination Event Purchase Request”). The Company shall purchase all Notes held by such holder on a date mutually agreed to by the Company and such holder, provided that such date shall not be less than five (5) Business Days and not more than fifteen (15) Business Days after the Termination Event Purchase Request (the “Termination Event Purchase Date”). In connection with the purchase of any Note pursuant to this Section 8.8, the Company shall provide the holder of such Note a certificate, executed by a Senior Financial Officer of the Company, specifying: (i) the Termination Event Purchase Date, (ii) that such purchase is being made pursuant to this Section 8.8; (iii) the principal amount of each Note being purchased by the Company; (iv) the Termination Price of each Note being purchased by the Company; and (v) the interest that would be due on each Note being purchased by the Company, accrued to the Termination Event Purchase Date.


-27-




(d)    Release of Escrowed Proceeds. If any holder has yet to timely notify the Company of the exercise of its right to require the Company to purchase all of its Notes pursuant to Section 8.8(c) by the 15th day preceding the expiration of the time period set forth in Section 8.8(c), then the Company shall send written notice to such holder (in this case only, “holder” in respect of any Note registered in the name of a nominee for a disclosed beneficial owner shall mean such beneficial owner), requesting confirmation as to whether such holder desires to exercise its rights pursuant to Section 8.8(c). If the Company does not exercise its right to prepay the outstanding Notes within the time period set forth in Section 8.8(b) with respect to a Termination Event or any holder does not exercise its right to require the Company to purchase all of its Notes within the time period set forth in Section 8.8(c), the Escrowed Proceeds (other than amounts, if any, owing to any holder that has timely exercised its rights pursuant to Section 8.8(c), but has yet to receive payment for its Notes) shall be released, free and clear of any Liens in favor of the holders, from escrow to the Company on September 30, 2013.
SECTION 9.
AFFIRMATIVE COVENANTS.    
Each Obligor, jointly and severally, covenants that from and after the date of the Closing and so long as any of the Notes are outstanding:
Section 9.1.    Compliance with Law. Without limiting Section 10.5, each Obligor will, and will cause each of its Subsidiaries to, comply with all laws, ordinances or governmental rules or regulations to which each of them is subject, including, without limitation, ERISA, Environmental Laws, the USA Patriot Act and the other laws and regulations that are referred to in Section 5.16, and will obtain and maintain in effect all licenses, certificates, permits, franchises and other governmental authorizations necessary to the ownership of their respective properties or to the conduct of their respective businesses, in each case to the extent necessary to ensure that non-compliance with such laws, ordinances or governmental rules or regulations or failures to obtain or maintain in effect such licenses, certificates, permits, franchises and other governmental authorizations would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 9.2.    Insurance. Each Obligor will, and, if not maintained by an Obligor, will cause each of its Subsidiaries to, maintain, with financially sound and reputable insurers, insurance with respect to their respective properties and businesses against such casualties and contingencies, of such types, on such terms and in such amounts (including deductibles, co-insurance and self-insurance, if adequate reserves are maintained with respect thereto) as is customary in the case of entities of established reputations engaged in the same or a similar business and similarly situated.
Section 9.3.    Maintenance of Properties. Each Obligor will, and will cause each of its Subsidiaries to, maintain and keep, or cause to be maintained and kept, their respective properties in good repair, working order and condition (other than ordinary wear and tear), so that the business carried on in connection therewith may be properly conducted at all times, provided that this Section shall not prevent either Obligor or any Subsidiary from discontinuing the operation and the maintenance of any of its properties if such discontinuance is desirable in the conduct of its business and such Obligor has concluded that such

-28-




discontinuance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 9.4.    Payment of Taxes and Claims    . Each Obligor will, and will cause each of its Subsidiaries to, file all tax returns required to be filed in any jurisdiction and to pay and discharge all taxes shown to be due and payable on such returns and all other taxes, assessments, governmental charges, or levies imposed on them or any of their properties, assets, income or franchises, to the extent the same have become due and payable and before they have become delinquent and all claims for which sums have become due and payable that have or might become a Lien on properties or assets of either Obligor or any Subsidiary, provided that neither any Obligor nor any Subsidiary need pay any such tax, assessment, charge or levy or claim if (i) the amount, applicability or validity thereof is contested by such Obligor or such Subsidiary on a timely basis in good faith and in appropriate proceedings, and such Obligor or such Subsidiary has established adequate reserves therefor in accordance with GAAP on the books of such Obligor or such Subsidiary or (ii) the nonpayment of all such taxes, assessments, charges, levies and claims in the aggregate would not reasonably be expected to have a Material Adverse Effect.
Section 9.5.    Corporate Existence, Etc. Subject to Section 10.2, each Obligor will at all times preserve and keep its corporate existence in full force and effect. Subject to Sections 10.2 and 10.3, each Obligor will at all times preserve and keep in full force and effect the corporate existence of each of its Subsidiaries (unless merged into either Obligor or a Wholly-Owned Subsidiary) and all rights and franchises of the Obligors and their Subsidiaries unless, in the good faith judgment of the Obligors, the termination of or failure to preserve and keep in full force and effect such corporate existence, right or franchise would not, individually or in the aggregate, have a Material Adverse Effect.
Section 9.6.    Books and Records. Each Obligor will, and will cause each of its Subsidiaries to, maintain proper books of record and account in conformity with GAAP and all applicable requirements of any Governmental Authority having legal or regulatory jurisdiction over such Obligor or such Subsidiary, as the case may be.
Section 9.7.    Pari Passu Ranking. Prior to the Collateral Effective Date, the Notes (in the case of the Company) and all other obligations under this Agreement and the other Financing Agreements of each Note Party are and at all times shall remain direct and unsecured obligations of such Note Party, as applicable, ranking at least pari passu in right of payment with all Indebtedness outstanding under the Credit Agreements and all other present and future unsecured Indebtedness (actual or contingent) of such Note Party that is not expressed to be subordinate or junior in rank to any other unsecured Indebtedness of such Note Party. From and after the Collateral Effective Date, the Notes (in the case of the Company) and all other obligations under this Agreement and the other Financing Agreements of each Note Party will be and at all times thereafter shall remain direct and secured obligations of such Note Party ranking at least pari passu in right of payment with all secured Indebtedness outstanding under the Transaction Facilities and other secured Credit Agreements.

-29-




Section 9.8.    Subsidiary Guarantors. The Obligors will cause the Initial Subsidiary Guarantors and, after the date of Closing, any Subsidiary which is required by the terms of any Credit Agreement to become obligated for, or otherwise guarantee, Indebtedness of either Obligor in respect of any Credit Agreement, to deliver to each of the holders of the Notes (concurrently with the incurrence of any such obligation) the following items:
(a)    a duly executed Subsidiary Guarantee in scope, form and substance reasonably satisfactory to the Required Holders or a joinder agreement in respect of the Subsidiary Guarantee, as applicable;
(b)    a certificate signed by an authorized Responsible Officer of each Obligor making representations and warranties to the effect of those contained in Sections 5.1, 5.2, 5.4, 5.6, 5.7 and 5.19, with respect to such Subsidiary and its Subsidiary Guarantee, as applicable; and
(c)    in the case that any such Subsidiary is a Material Subsidiary, an opinion of counsel addressed to each of the holders of the Notes reasonably satisfactory to the Required Holders, to the effect that the Subsidiary Guarantee by such Person has been duly authorized, executed and delivered and that the Subsidiary Guarantee constitutes the legal, valid and binding obligation of such Person, enforceable in accordance with its terms, except as an enforcement of such terms may be limited by bankruptcy, insolvency, fraudulent conveyance and similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles and containing other usual and customary assumptions, qualifications and exceptions.    
If any Subsidiary otherwise required to become a Subsidiary Guarantor under this Section 9.8 is a joint venture or unincorporated association, and such Subsidiary’s becoming a Subsidiary Guarantor shall be restricted by such Subsidiary’s constitutive documents, then, provided such Subsidiary is not obligated under any Credit Agreement for more than the Limited Guaranteed Amount, notwithstanding anything to the contrary contained in any Financing Agreement, the obligations guaranteed by such Subsidiary under the Subsidiary Guaranty shall not be required to exceed the amount (the “Limited Guarantee Amount”) that may be so guaranteed under applicable Requirements of Law (including, without limitation, the Uniform Fraudulent Conveyance Act and the Uniform Fraudulent Transfer Act), multiplied by the percentage of such Subsidiary’s outstanding Capital Stock or interest in the profits owned, in each case, by the Company or any of its other Subsidiaries.
Section 9.9.    Maintenance of Ownership. The Company shall at all times remain a Subsidiary of the Parent Guarantor and the Parent Guarantor shall at all times own, directly or indirectly, 100% of all equity interests and voting interests of the Company free and clear of any Lien other than any Liens granted to secure Senior Secured Indebtedness pursuant to the Transaction Facilities.
Section 9.10.    Maintenance of Rating on Notes. The Company will at all times maintain a rating by a Designated Rating Agency on the Notes. The Company shall notify each holder of a Note in writing of any change in, or withdrawal of, the rating on the Notes, and of its receipt of any written notice that such

-30-




a change or withdrawal is likely to occur (and of any resulting obligation to pay the fee pursuant to Section 9.12(a)) promptly, and in any event within 5 days, thereafter.
Section 9.11.    Most Favored Lender Status.
(a)    If at any time after the date of this Agreement any Credit Agreement contains a covenant (whether constituting a covenant or event of default) by an Obligor (i) to maintain the Leverage Ratio (or a similar covenant or limitation on Indebtedness contained in any such Credit Agreement) at a level more favorable to the lenders under such Credit Agreement than the level set forth in Section 10.7, (ii) to maintain a minimum amount of Consolidated Net Worth (or a similar covenant contained in any such Credit Agreement) at a level more favorable to the lenders under such Credit Agreement than the level set forth in Section 10.8, (iii) to maintain the Fixed Charge Coverage Ratio (or a similar covenant contained in any such Credit Agreement) at a level more favorable to the lenders under such Credit Agreement than the level set forth in Section 10.9, (iv) constituting an Additional Covenant (in addition to the covenants described in clauses (i), (ii) and (iii) above) or (v) constituting an Additional Default (any such provision, together with all definitions and interpretive provisions from such Credit Agreement to the extent used in relation thereto, a “Most Favorable Covenant”), then the Obligors shall provide a Most Favored Lender Notice in respect of such Most Favorable Covenant.  Such Most Favorable Covenant shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if set forth in full herein, effective as of the date when such Most Favorable Covenant shall have become effective under such Credit Agreement (unless such date is prior to the date of the Closing, in which case such covenant will be deemed incorporated effective as of the date of the Closing). Thereafter, upon the request of any holder of a Note, the Obligors shall enter into any additional agreement or amendment to this Agreement reasonably requested by such holder to further evidence any of the foregoing.
(b)    Any Most Favorable Covenant incorporated into this Agreement (herein referred to as an “Incorporated Covenant”) pursuant to this Section 9.11 (i) shall be deemed automatically amended herein to reflect any subsequent amendments made to such Most Favorable Covenant under the applicable Credit Agreement (provided that, if a Default or an Event of Default then exists and the amendment of such Most Favorable Covenant would make such covenant less restrictive on the Company, then such Incorporated Covenant shall only be deemed automatically amended at such time, if it should occur, when such Default or Event of Default no longer exists) and (ii) shall be deemed automatically deleted from this Agreement at such time as such Most Favorable Covenant is deleted or otherwise removed from the applicable Credit Agreement or such applicable Credit Agreement shall be terminated (provided that, if a Default or an Event of Default then exists, then such Incorporated Covenant shall only be deemed automatically deleted from this Agreement at such time, if it should occur, when such Default or Event of Default no longer exists); provided, however, that if any fee or other consideration is paid to the lenders under such Credit Agreement for such amendment or deletion, the equivalent of such fee or other consideration shall be paid to the holders of the Notes upon the effectiveness of such amendment or deletion. Upon the occurrence of any event described in sub-clause (i) of the preceding sentence, upon the request of the Obligors or any holder of Notes, the holders of Notes (if applicable) and the Obligors shall enter into any additional agreement or amendment to this Agreement reasonably requested by the Obligors or a holder of Notes, as the case may

-31-




be, evidencing the amendment of any such Incorporated Covenants. Upon the occurrence of any event described in sub-clause (ii) of the second preceding sentence, upon the request of the Obligors, the holders of Notes shall enter into any additional agreement or amendment to this Agreement reasonably requested by the Obligors evidencing the deletion and termination of any such Incorporated Covenants.
(c)    “Most Favored Lender Notice” means, in respect of any Most Favorable Covenant, a written notice to each of the holders of the Notes (and in the case if any Note registered in the name of a nominee for a disclosed beneficial owner, to such beneficial owner, rather than such nominee, on the date of such notice) delivered promptly, and in any event within ten Business Days after the inclusion of such Most Favorable Covenant in any Credit Agreement from a Responsible Officer referring to the provisions of this Section 9.11 and setting forth a reasonably detailed description of such Most Favorable Covenant and related explanatory calculations, as applicable.
(d)    For the avoidance of doubt, in no event shall the Leverage Ratio set forth in Section 10.7, the minimum amount of Consolidated Net Worth set forth in Section 10.8 or the Fixed Charge Coverage Ratio set forth in Section 10.9 and related definitions contained in this Agreement be deemed or construed to be loosened or relaxed by operation of the terms of this Section 9.11.
Section 9.12.    Payment of Certain Fees.
(a)    Investment Grade Rating. If at any time the Company fails to have an Investment Grade Rating on the Notes, the Obligors shall pay a fee (the “Rating Fee”) to each holder in an amount equal to 1.50% (150 bps) per annum (0.375% (37.50 bps) per quarter) of the aggregate principal amount of Notes held by such holder, payable within 30 days of the end of each fiscal quarter in which the Company failed to have such Investment Grade Rating provided, that if at any time the Leverage Fee (defined in clause (b) below) payable pursuant to Section 9.12(b)(ii) is also payable, the Rating Fee payable pursuant to this Section 9.12(a) shall be an amount equal to 1.00% (100 bps) per annum (0.25% (25 bps) per quarter) of the aggregate principal amount of Notes held by such holder. For purposes of clarity, at any time that both the Rating Fee and Leverage Fee are payable, the aggregate fees payable under this Section 9.12 shall equal 2.00% (200 bps) per annum (0.50% (50 bps) per quarter).
(b)    Leverage Ratio. During the period beginning with the fiscal quarter ending December 31, 2016 and ending December 31, 2018:
(i)    if the Leverage Ratio as of the last day of any fiscal quarter is greater than 3.00 to 1.00 and less than or equal to 3.50 to 1.00, the Obligors shall pay a fee to each holder of the Notes equal to 0.50% (50 bps) per annum (0.125% (12.5 bps) per quarter) of the aggregate principal amount of Notes held by such holder, or
(ii)    if the Leverage Ratio as of the last day of any fiscal quarter is greater than 3.50 to 1.00, the Obligors shall pay a fee to each holder of the Notes equal to 1.00% (100 bps) per annum (0.25% (25 bps) per quarter) of the aggregate principal amount of Notes held by such holder.

-32-




The fee payable pursuant to this Section 9.12(b) is referred to herein as the “Leverage Fee”. The Leverage Fee shall be payable with respect to the fiscal quarter in which such ratio exceeded 3.00:1.00 on the date of delivery of corresponding financial statements pursuant to Section 7.1(a) or Section 7.1(b) and, in any event, not later than the last date such financial statements are required to be delivered, if not earlier delivered. Payment of the Leverage Fee shall not excuse or cure any Default or Event of Default arising from the Obligors’ failure to comply with the terms of Section 10.7.
(c)    Any fee payable pursuant to Section 9.12(a) or Section 9.12(b) shall be in addition to any increased interest payable at any applicable Default Rate and any other amount due in connection with an Event of Default.
Section 9.13.    Prepayment in Connection with Capital Services Business Sale. (a)  The Obligors shall apply the net proceeds of the Capital Services Business Sale to prepay Senior Indebtedness outstanding under this Agreement, the 2015 NPA, the 2015 Term Loan Agreement, the 2013 Revolving Credit Agreement, the 2015 Revolving Credit Agreement and the Bilateral Revolving Credit Agreements (the “Specified Facilities”) on a pro rata basis, based on the outstanding principal amount thereunder as of the last day of the fiscal quarter immediately preceding the closing of the Capital Services Business Sale (such pro rata portion of net proceeds applicable to the Notes, herein the “Ratable Amount”) in accordance with this Section 9.13. The Obligors shall, promptly (and in any event within five (5) Business Days) following the closing of the Capital Services Business Sale, make a written offer to prepay the Notes in an aggregate amount equal to the Ratable Amount (which Ratable Amount shall include interest accrued to the date of prepayment), but without the Make-Whole Amount, and specifying a prepayment date that is not later than 30 days following the closing of the Capital Services Business Sale. Such offer of prepayment shall be made pro rata among all of the Notes under this Agreement, without regard to series (unless a holder of the Notes or a holder of 2015 Notes declines all or a portion of its pro rata share of such prepayment at par, in which case, such declined amount shall be offered on a pro rata basis to the holders of Notes and holders of 2015 Notes that have accepted such offer of prepayment). The initial offer to prepay the Notes shall be made pursuant to Section 8.5 of this Agreement. The failure of any holder to respond to the offer shall be deemed a rejection of the offer. With respect to the aggregate pro rata portion of the net proceeds payable under the 2015 Term Loan Agreement, the 2013 Revolving Credit Agreement, the 2015 Revolving Credit Agreement and the Bilateral Revolving Credit Agreements, the Company shall determine the allocation as among such Specified Facilities. Notwithstanding the foregoing, to the extent any net proceeds of the Capital Services Business Sale offered to the holders of the Notes for prepayment are ultimately declined for prepayment (for clarity, after any declined proceeds are re-offered to the holders of Notes and holders of 2015 Notes that have accepted the initial offer of prepayment, as provided above), the amount of such declined proceeds shall be applied by the Obligors to prepay Senior Indebtedness outstanding under the other Specified Facilities, as determined by the Company.



-33-




(b)    On the date that the Obligors receive the proceeds from the Capital Services Business Sale, if such date is prior to execution and delivery of the Intercreditor Agreement, the Ratable Amount of such proceeds allocable to the Notes shall be deposited, in cash, into a segregated deposit account of the Company at a bank that is not a lender to the Obligors or their Subsidiaries (under any of the Specified Facilities or otherwise), and such funds shall remain in such account for the benefit of the holders until the prepayment required under this Section 9.13 is made.
Section 9.14.    Special Mandatory Offers of Prepayment.
(a)    If the Parent Guarantor or any of its Subsidiaries (i) Disposes of any property in accordance with and permitted by Section 10.3(b)(6) hereof, or (ii) Disposes of any property and the terms of any Credit Agreement require that the Parent Guarantor or such Subsidiary apply the proceeds of such Disposal to the prepayment of Indebtedness, or (iii) Disposes of any Equity Interests of any Subsidiary or Subsidiaries, or any Subsidiary sells or issues any of its Equity Interests, where the aggregate proceeds received exceed $100,000,000 for any such transaction (an “Equity Interests Disposition”), then the Obligors shall apply 100% of the Net Cash Proceeds of such Disposal or Equity Interests Disposition to the pro rata payment of Senior Indebtedness outstanding under this Agreement and the other Transaction Facilities. Such prepayment of the Notes shall be made pursuant to a written offer of prepayment at a price equal to 100% of the principal amount to be prepaid (at par) plus accrued interest to the date of prepayment, and as otherwise more fully set forth in Section 9.14(d) below; provided that the Capital Services Business Sale shall be governed by and subject to Section 9.13.
(b)    Upon the incurrence or issuance by the Parent Guarantor or any of its Subsidiaries of any unsecured Indebtedness and/or Indebtedness that is subordinated or otherwise junior to the Notes (including any Subordinated Indebtedness), in each case, pursuant to a capital markets transaction or any substitutions thereof, after the Sixth Amendment Effective Date, the Obligors shall apply 100% of the Net Cash Proceeds of such incurrence or issuance to the pro rata payment of Senior Indebtedness outstanding under this Agreement and the other Transaction Facilities. Such prepayment of the Notes shall be made pursuant to a written offer of prepayment at a price equal to 100% of the principal amount to be prepaid, accrued interest to the date of prepayment, and the Modified Make-Whole Amount, and as otherwise more fully set forth in Section 9.14(d) below.
(c)    During the period from and after the Sixth Amendment Effective Date until the earlier of (1) July 8, 2020 and (2) at any time that the Senior Secured Leverage Ratio is less than 2.50 to 1.00 for four (4) consecutive fiscal quarters (as evidenced to the holders and such evidence reasonably satisfactory to the Required Holders), upon the sale or issuance by the Parent Guarantor or any of its Subsidiaries of any of its Capital Stock (other than (i) any sale or issuance of Capital Stock in connection with employee benefit arrangements and (ii) Equity Interests Disposition), the Obligors shall apply 100% of the Net Cash Proceeds of such sale or issuance to the pro rata payment of Senior Indebtedness outstanding under this Agreement and the other Transaction Facilities. Such prepayment of the Notes shall be made pursuant to a written offer of prepayment at a price equal to 100% of the principal amount to be prepaid, accrued interest to the

-34-




date of prepayment, and the Modified Make-Whole Amount, and as otherwise more fully set forth in Section 9.14(d) below.
(d)    Each prepayment of Senior Indebtedness outstanding under this Agreement and the other Transaction Facilities pursuant to the foregoing provisions of this Section 9.14 shall be made on a pro rata basis based on outstanding principal balances thereof as of the last day of the fiscal quarter immediately preceding such Disposition, Equity Interests Disposition, incurrence of Indebtedness or issuance of Capital Stock, as applicable (the “Prepayment Events”) (such pro rata portion of Net Cash Proceeds applicable to the Notes, herein the “Section 9.14 Ratable Amount”). The Obligors shall, promptly (and in any event within five (5) Business Days) following the closing of any Prepayment Event (provided that with respect to any at-the-market (ATM) offerings, the closing of any such Prepayment Event during any calendar quarter shall be deemed to be on the last day of each March, June, September and December), make a written offer to prepay the Notes in an aggregate amount equal to the Section 9.14 Ratable Amount, accrued interest and the Modified Make-Whole Amount, if applicable, specifying a prepayment date that is not later than 30 days following the closing of the Prepayment Event. Such offer of prepayment shall be made pro rata among all of the Notes under this Agreement, without regard to series (unless a holder of the Notes or a holder of 2015 Notes declines all or a portion of its pro rata share of such prepayment, in which case, such declined amount shall be offered on a pro rata basis to the holders of Notes and holders of 2015 Notes that have accepted such offer of prepayment). The initial offer to prepay the Notes shall be made pursuant to Section 8.5 of this Agreement. The failure of any holder to respond to the offer shall be deemed a rejection of the offer. With respect to the aggregate pro rata portion of the net proceeds payable under the 2015 Term Loan Agreement, the 2013 Revolving Credit Agreement and the 2015 Revolving Credit Agreement, the Company shall determine the allocation as among such Transaction Facilities. Notwithstanding the foregoing, to the extent any Net Cash Proceeds of a Prepayment Event offered to the holders of the Notes for prepayment are ultimately declined for prepayment (for clarity, after any declined proceeds are re-offered to the holders of Notes and holders of 2015 Notes that have accepted the initial offer of prepayment, as provided above), the amount of such declined proceeds shall be applied by the Obligors to prepay Senior Indebtedness outstanding under the other Transaction Facilities, as determined by the Company. Proceeds payable to each holder pursuant to Section 9.14(b) or 9.14(c) shall be applied to accrued interest to the date of payment, then between principal and the Modified Make-Whole amount as shall be applicable.
(e)    On the date that the Obligors receive the proceeds from a Prepayment Event, if such date is prior to execution and delivery of the Intercreditor Agreement, the Section 9.14 Ratable Amount of such proceeds allocable to the Notes shall be deposited, in cash, into a segregated deposit account of the Company at a bank that is not a lender to the Obligors or their Subsidiaries (under any of the Transaction Facilities or otherwise), and such funds shall remain in such account for the benefit of the holders until the prepayment required under this Section 9.14 is made.
Section 9.15.    Collateral Delivery Obligation.
(a)    Within the time periods specified in Section 9.15(c) below, all obligations under the Notes, this Agreement and the other Financing Agreements shall be secured by valid and perfected first priority

-35-




Liens and security interests, subject to Liens permitted under this Agreement and subject further to the Agreed Collateral Principles, in all of the following, other than Excluded Collateral, and in all events in all collateral granted to or for the benefit of the lenders under any Credit Agreement (the “Collateral”):
(i)    Subject to the limitations expressly set forth in this Section 9.15, all of the present and future personal property and, to the extent required by the Required Holders, owned real property having an individual value of at least $2,500,000) and assets of each Note 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 Note Party other than inactive Subsidiaries (limited, in the case of each entity that is a “controlled foreign corporation” under Section 957 of the 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 Note Party);
(2)    all inventory and accounts receivable of each Note Party;
(3)    all equipment of each Note Party;
(4)    all intellectual property of each Note 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); and
(5)    all cash (including the proceeds of any bank revolver draws) and all deposit accounts of each Note 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 Note Party’s salaried employees and (y) deposit accounts constituting zero balance, payroll, withholding or trust accounts or, the aggregate average daily balance of which for all Note Parties does not exceed $2,500,000 at any time; and
(ii)    all proceeds and products of the foregoing.
Assets being disposed of in connection with the Capital Services Business Sale shall not be included as, or required to be pledged as, Collateral; provided, however, in the event that the Capital Services Business Sale 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 9.15.

-36-




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)    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;
(iii)    any property in which the Note Party now or hereafter has rights, to the extent in each case a security interest may not be granted by the Note Party in such property without the consent of one or more third parties, including any Governmental Authority;
(iv)     any property to the extent that such grant of a security interest would contravene the Agreed Collateral Principles;
(v)     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
(vi)    assets as to which the Required Holders and Note Parties reasonably agree that the costs of obtaining such security interest or perfection thereof are excessive in relation to the benefit to the holders of the security to be afforded thereby (the foregoing described in clauses (i) through (vi) are, collectively, the “Excluded Collateral”).
The “Agreed Collateral Principles” are as follows: (i) 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, (ii) the Note Parties shall take all reasonable actions necessary to create and perfect security interests in all property (other than Excluded Collateral) of the Note Parties subject to the laws of the United Kingdom, Lichtenstein, Netherlands, Netherlands Antilles and each other non-U.S. jurisdiction reasonably required by the Required Holders (including, if so required, entering into local law-governed instruments pledging the Capital Stock of foreign Subsidiaries), it being 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 Required Holders will act reasonably in granting the necessary extension of timing for obtaining such security, provided, that with respect to subsections (A) and (B), the applicable Note Party has exercised commercially reasonable efforts in providing such security.

-37-




(b)    Notwithstanding anything to the contrary in this Agreement or the Financing Agreements, the Liens on the Collateral shall be created pursuant to security agreements and other instruments (the “Security Documents”) in favor of the Collateral Agent for the equal and ratable benefit of the holders of the Notes, the holders of the 2015 Notes, and the credit providers (including, without limitation, lenders, providers of cash management and hedge obligations) under each of the 2013 Revolving Credit Agreement, the 2015 Revolving Credit Agreement, the 2015 Term Loan Agreement and the letter of credit facilities referred to in clause (v) below, in each case, that are parties to the hereinafter defined Intercreditor Agreement, and securing the relevant Note Party’s obligations under such Transaction Facilities and the letter of credit facilities referred to in clause (v) below. The enforcement of the rights and benefits in respect of the Security Documents will be subject to an intercreditor agreement (the “Intercreditor Agreement”) in form and substance satisfactory to the Required Holders, to be entered into by (i) the Collateral Agent, (ii) the the holders of the Notes, (iii) the holders of the 2015 Notes, (iv) the respective administrative agents (to the extent authorized to do so) for the creditors under the 2013 Revolving Credit Agreement, the 2015 Revolving Credit Agreement, the 2015 Term Loan Agreement and (v) those creditors under the 2013 Revolving Credit Agreement, the 2015 Revolving Credit Agreement or the 2015 Term Loan 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 creditors pursuant to this clause (v) will be pari passu to the other creditors in clauses (i) through (iv) with respect to up to $500,000,000 in Indebtedness owed by the Note Parties to such creditors.
(c)    The Liens and security interests on the Collateral contemplated hereby shall be granted and perfected within the following time periods: (i) for Collateral with respect to which Liens may be perfected by filing of a UCC-1 financing statement, within 21 days following the Sixth Amendment Effective Date, and (ii) for all other Collateral, within 30 days following the delivery of the Collateral under clause (i) and in no event later than 60 days following the Sixth Amendment Effective Date, subject to the Agreed Collateral Principal or as otherwise agreed by the Required Holders. The Intercreditor Agreement shall be entered into by the parties thereto not later than 21 days following the Sixth Amendment Effective Date.
(d)    Bank of America, N.A. shall act as the “collateral agent” (including any successors, the “Collateral Agent”) under the Security Documents and any other security instruments, and each of the holders hereby irrevocably appoints and authorizes Bank of America, N.A. (i) to act as the agent of such holder for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Note Parties to secure any of the obligations under the Notes and the other Financing Agreements, together with such powers and discretion as are reasonably incidental thereto, in all cases, subject to the Intercreditor Agreement, and (ii) to enter into security documents and any other related security instruments on behalf of the holders.
(e)    The Obligors shall promptly upon execution thereof provide the Collateral Agent with copies of all executed Security Documents and all documents and instruments evidencing that the Liens and security interests contemplated hereby have been filed for record or have been otherwise perfected.

-38-




(f)    Upon the grant of Liens and security interests pursuant to this Section 9.15, the remedies available to the holders under Section 12.2 hereof at any time an Event of Default has occurred and is continuing shall include the right to enforce any Security Document, subject to the Intercreditor Agreement and the terms of such Security Documents.
Section 9.16.    Financial Advisor. In consideration of the execution and delivery by the holders of the Sixth Amendment, the Obligors have agreed that the holders of the Notes and the holders of the 2015 Notes shall be entitled to engage, collectively, one financial advisor to such holders (the “Financial Advisor”) not later than July 15, 2017. The Obligors agree (a) to cooperate with the holders in the engagement of the Financial Advisor, which engagement shall be on terms reasonably acceptable to the Obligors, including terms of confidentiality reasonably acceptable to the Obligors and the Required Holders (provided the selection of the Financial Advisor shall be in the sole discretion of the holders), and (b) to provide (i) financial information requested by the Financial Advisor regarding the Parent Guarantor and its Subsidiaries, their businesses and properties, and (ii) access to senior management of the Obligors and their Subsidiaries, in each case, in accordance with the Engagement Letter. The Obligors agree to pay the fees and expenses of the Financial Advisor in accordance with the Engagement Letter. The obligations of the Obligors with respect to the Financial Advisor shall end on the date following the Sixth Amendment Effective Date on which the Senior Secured Leverage Ratio has been less than 2.50 to 1.00 for four (4) consecutive fiscal quarters (as evidenced to the holders and such evidence reasonably satisfactory to the Required Holders).
SECTION 10.
NEGATIVE COVENANTS.    
Each Obligor, jointly and severally, covenants that from and after the date of the Closing and so long as any of the Notes are outstanding:
Section 10.1.    Transactions with Affiliates. The Obligors will not, and will not permit any Subsidiary to, enter into directly or indirectly any Material transaction or Material group of related transactions (including without limitation the purchase, lease, sale or exchange of properties of any kind or the rendering of any service) with any Affiliate (other than the Obligors or another Subsidiary), except in the ordinary course and pursuant to the reasonable requirements of any Obligor’s or such Subsidiary’s business and upon fair and reasonable terms no less favorable to such Obligor or such Subsidiary than would be obtainable in a comparable arm’s-length transaction with a Person not an Affiliate.
Section 10.2.    Merger, Consolidation, Etc    . The Obligors will not, and will not permit any Subsidiary to, consolidate with or merge with any other Person or convey, transfer or lease (as lessor) all or substantially all of its assets in a single transaction or series of related transactions to any Person except:
(a)    the Parent Guarantor may consolidate with or merge with, or convey, transfer or lease substantially all of its assets in a single transaction or series of related transactions to, any other Person if (i) the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer or lease all or substantially all of the assets of the Parent Guarantor as an entirety, as the case may be (the “Surviving Parent”), shall be a solvent

-39-




corporation or limited liability company organized and existing under the laws of an Acceptable Jurisdiction, (ii) if the Parent Guarantor is not the Surviving Parent, the due and punctual performance and observation of all of the obligations in the Financing Agreements to be performed or observed by the Parent Guarantor are expressly assumed in writing by the Surviving Parent and the Surviving Parent shall furnish to the holders of the Notes an opinion of nationally recognized independent counsel to the effect that each agreement or instrument effecting such assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding obligation of the Surviving Parent enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles and containing other usual and customary assumptions, qualifications and exceptions, (iii) each of the Subsidiary Guarantors shall have confirmed and ratified in writing reasonably satisfactory to the Required Holders its obligations under its Subsidiary Guarantee, and (iv) immediately before and after giving effect to any such transaction, no Default or Event of Default shall have occurred and be continuing; and
(b)    the Company may consolidate with or merge with, or convey, transfer or lease substantially all of its assets in a single transaction or series of related transactions to, any other Person if (i) the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer or lease all or substantially all of the assets of the Company as an entirety, as the case may be (the “Surviving Company”), shall be a solvent corporation or limited liability company organized and existing under the laws of the United States or any State thereof (including the District of Columbia), (ii) if the Company is not the Surviving Company, the due and punctual performance and observation of all of the obligations in the Financing Agreements (including the Notes) to be performed or observed by the Company are expressly assumed in writing by the Surviving Company and the Surviving Company shall furnish to the holders of the Notes an opinion of nationally recognized independent counsel to the effect that each agreement or instrument effecting such assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding obligation of the Surviving Company, enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles and containing other usual and customary assumptions, qualifications and exceptions, (iii) each of the Parent Guarantor and Subsidiary Guarantors shall have confirmed and ratified in writing reasonably satisfactory to the Required Holders its obligations under the Parent Guarantee and Subsidiary Guarantee, respectively, and (iv) immediately before and after giving effect to any such transaction, no Default or Event of Default shall have occurred and be continuing; and



-40-




(c)    any Subsidiary of any Obligor (other than the Company) may (x) consolidate with or merge with, or convey, transfer or lease substantially all of its assets in a single transaction or series of related transactions to, (i) any Obligor or any other Subsidiary so long as in any merger or consolidation involving an Obligor, such Obligor shall be the surviving or continuing corporation or (ii) any other Person so long as the survivor is the Subsidiary, or (y) convey, transfer or lease all of its assets in compliance with the provisions of Section 10.3.

No such conveyance, transfer or lease of substantially all of the assets of any Obligor or any Subsidiary Guarantor shall have the effect of releasing any Obligor or any Subsidiary Guarantor or any Surviving Parent, Surviving Company or any other Person that becomes the surviving or continuing Person in the manner prescribed in this Section 10.2 from its liability under the Financing Agreements, the Notes or any Subsidiary Guarantee, as applicable. The Capital Services Business Sale shall be deemed a conveyance permitted under this Section 10.2 and, notwithstanding anything to the contrary contained herein, CB&I Government Solutions, Inc. and CB&I Environmental & Infrastructure, Inc. shall be released automatically from their obligations under the Subsidiary Guarantee concurrent with, and conditioned upon, their ceasing to be Subsidiaries of the Obligors upon the consummation of the Capital Services Business Sale.
Section 10.3.    Sales of Assets. (a) Subject to Section 10.3(b), except as permitted in Section 10.2, the Obligors will not, and will not permit any Subsidiary to, sell, lease or otherwise dispose of (including by way of merger, consolidation or amalgamation) any substantial part (as defined below) of the assets of the Obligors and its Subsidiaries; provided, however, that any Obligor or any Subsidiary may sell, lease or otherwise dispose of assets constituting a substantial part of the assets of the Obligors and their Subsidiaries if such assets are sold in an arms-length transaction and, at such time and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and an amount equal to the net proceeds received from such sale, lease or other disposition (but only with respect to that portion of such assets that exceeds the definition of “substantial part” set forth below) shall be used within 365 days of such sale, lease or disposition, in any combination:
(1)    to acquire productive assets (which shall not include acquiring any equity interests of any Person) used or useful in carrying on the business of the Company and its Subsidiaries and having a value at least equal to the value of such assets sold, leased or otherwise disposed of; and/or    
(2)    to prepay or retire Senior Indebtedness of the Obligors and/or their Subsidiaries, provided that (i) the Company shall offer to prepay each outstanding Note in a principal amount which equals the Ratable Portion for such Note, and (ii) any such prepayment of the Notes shall be made at par, together with accrued interest thereon to the date of such prepayment, but without the payment of Make-Whole Amount. Any offer of prepayment of the Notes pursuant to this Section 10.3(a) shall be given to each holder of the Notes by written notice that shall be delivered not less than thirty (30) days and not more than sixty (60) days prior to the proposed prepayment date. Each such notice shall state that it is given pursuant to this Section and that the offer set forth in such notice must be accepted by such holder in writing and shall also set forth (i) the prepayment

-41-




date, (ii) a description of the circumstances which give rise to the proposed prepayment and (iii) a calculation of the Ratable Portion for such holder’s Notes. Each holder of the Notes which desires to have its Notes prepaid shall notify the Company in writing delivered not less than ten (10) Business Days prior to the proposed prepayment date of its acceptance of such offer of prepayment. A failure by a holder of Notes to notify the Company of its acceptance of an offer of prepayment pursuant to this Section 10.3(a) on or before the tenth (10th) Business Day preceding the proposed prepayment date shall be deemed a rejection of such offer of prepayment.
As used in this Section 10.3(a), a sale, lease or other disposition of assets shall be deemed to be a “substantial part” of the assets of the Obligors and their Subsidiaries if the book value of such assets, when added to the book value of all other assets sold, leased or otherwise disposed of by the Obligors and their Subsidiaries during the period of 12 consecutive months ending on the date of such sale, lease or other disposition, exceeds 20% of the book value of Consolidated Total Assets, determined as of the end of the fiscal quarter immediately preceding such sale, lease or other disposition; provided that there shall be excluded from any determination of a “substantial part” any (i) sale or disposition of assets in the ordinary course of business of the Obligors and their Subsidiaries (including sales or dispositions of worthless, damaged or obsolete equipment), (ii) any transfer of assets from any Obligor to any Subsidiary or from any Subsidiary to any Obligor or another Subsidiary, (iii) any sale or disposition in connection with Project Bluefin consummated on or prior to March 31, 2016 and (iv) any sale or disposition of property acquired by any Obligor or any Subsidiary after the date of this Agreement to any Person within 365 days following the acquisition or construction of such property by Obligor or such Subsidiary if an Obligor or such Subsidiary shall concurrently with such sale or other disposition, lease such property, as lessee; provided, further, that there shall be excluded from the operation of this Section 10.3(a), the disposition of the shares of Topaz Nuclear Energy Holdings (US) Inc. and Topaz Nuclear Energy Holdings (UK) Limited (the “Holdco Shares”) subject to the “put rights” under the put option agreements dated October 13, 2006 (the “Put Option Agreements”), which occurs pursuant to NEH’s exercise of the Put Option Agreements, which exercise occurred on October 6, 2012 and will require funding by the put obligor on January 4, 2013, the proceeds of which will be used by NEH to retire, on or about March 15, 2013, bond indebtedness previously incurred that was related to such Holdco Shares.
(b)    At all times from and after the Sixth Amendment Effective Date until the date on which the Leverage Ratio has been less than 3.00 to 1.00 for two consecutive fiscal quarters (as evidenced to the holders and such evidence reasonably satisfactory to the Required Holders), neither the Parent Guarantor nor any of its Subsidiaries shall consummate any Asset Sale, except:
(1)    sales of inventory in the ordinary course of business;
(2)    the Disposition in the ordinary course of business of equipment that is obsolete, excess or no longer used or useful in the Parent Guarantor’s or its Subsidiaries’ businesses;


-42-




(3)    (x) Dispositions of assets between Note Parties, or from a Subsidiary of the Parent Guarantor that is not a Note Party to a Note Party; (y) Dispositions of assets from a Subsidiary of the Parent Guarantor that is not a Note Party to a Subsidiary of the Parent Guarantor that is not a Note Party and (z) Dispositions of assets in the ordinary course of business from a Note Party to a Subsidiary of the Parent Guarantor that is not a Note Party and not otherwise prohibited by this Agreement in an aggregate amount not to exceed $50,000,000 in the aggregate from and after the Sixth Amendment Effective Date;
(4)    the Permitted Sale and Leaseback Transactions;
(5)    Dispositions in connection with Project Bluefin;
(6)    other leases, sales or other Dispositions of assets not otherwise permitted by this Section 10.3(b) if such transaction (A) is for consideration consisting at least eighty percent (80%) of cash, (B) is for not less than fair market value (as determined in good faith by the Parent Guarantor’s board of directors), and (iii) involves assets that, together with all other assets of the Parent Guarantor and its Subsidiaries previously leased, sold or disposed of (other than pursuant to clauses (1) through (5) above) as permitted by this Section 10.3(b) (x) during the twelve-month period ending with the month in which any such lease, sale or other disposition occurs, do not constitute a Substantial Portion of the assets of the Parent Guarantor and its Subsidiaries and (y) since July 8, 2015 do not exceed fifteen percent (15%) of consolidated tangible assets of the Parent Guarantor and its Subsidiaries, in each case when combined with all such other transactions during such period (each such transaction being valued at book value); and
(7)    Dispositions in connection with the Capital Services Business Sale, subject to the requirements of Section 9.13.
For purposes of this Section 10.3(b), the term “Substantial Portion” means, with respect to the consolidated assets of the Parent Guarantor and its Subsidiaries, assets which (a) represent more than 10% of the consolidated assets of the Parent Guarantor and its Subsidiaries as would be shown in the consolidated financial statements of the Parent Guarantor 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 Parent Guarantor and its Subsidiaries as reflected in the financial statements referred to in clause (a) above.
Section 10.4.    Line of Business. The Obligors will not, and will not permit any Subsidiary to, engage in any business if, as a result, the general nature of the business in which the Obligors and their Subsidiaries, taken as a whole, would then be engaged would be substantially changed from the general nature of the business in which the Obligors and their Subsidiaries, taken as a whole, are engaged on the date of this Agreement as described in the Memorandum.
Section 10.5.    Terrorism Sanctions Regulations. The Obligors will not, and will not permit any Controlled Entity to, (i) become a Blocked Person or (ii) have any investments in, or knowingly (as such

-43-




term is defined in Section 101(6) of CISADA) engage in any dealings or transactions with, any Blocked Person where solely by virtue of such investments, dealings, or transactions would result in either (A) any Obligor or any Controlled Entity being in violation of applicable law in any material respect or (B) any holder of a Note being in violation of any OFAC Sanctions Laws.
Section 10.6.    Liens. The Obligors will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien securing Indebtedness for borrowed money on or with respect to any property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of any Obligor or any such Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:
(a)        Liens (other than Environmental Liens and Liens in favor of the Internal Revenue Service or the PBGC) for taxes, assessments or other governmental charges which are not yet due and payable or the payment of which is not at the time required by Section 9.4;
(b)    statutory Liens of landlords and carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested by any Obligor or such Subsidiary on a timely basis in good faith and in appropriate proceedings in compliance with Section 9.4;
(c)    pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance, pensions or other employee benefits and other social security laws or regulations;
(d)    any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of such stay;
(e)    other Liens incidental to the normal course of the business of the Obligors and their Subsidiaries or the ownership of their property, including, without limitation, deposits and Liens with respect to the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case which are not securing Indebtedness;
(f)    covenants, easements, zoning restrictions, rights of way, governmental permitting and operation restrictions and similar encumbrances on real property imposed by law as arising in the ordinary course of business that do not secure any monetary obligation and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Obligors and their Subsidiaries taken as a whole;

-44-




(g)    licenses, leases or subleases granted to other Persons in the ordinary course of business and not interfering in any material respect with the business of the Obligors and their Subsidiaries;
(h)    customary bankers’ Liens and rights of setoff arising, in each case, in the ordinary course of business and incurred on deposits made in the ordinary course of business;
(i)    Liens on property or assets of any Obligor or any of its Subsidiaries securing Indebtedness owing to either Obligor or to another Subsidiary;
(j)     Liens on property or assets securing the Indebtedness of any Obligor or any Subsidiary as of the date of the Closing and reflected in Schedule 5.15, including liens of any Financing Agreement on the Escrowed Closing Proceeds;
(k)    any Lien created to secure all or part of the purchase price, or to secure Indebtedness incurred or assumed to pay all or any part of the purchase price or cost of construction or improvement, of property (or any improvement thereon) acquired or constructed by any Obligor or a Subsidiary after the date of the Closing, provided that (i) any such Lien shall extend solely to the item or items of such property (or improvement thereon and proceeds thereof) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other property (or improvement thereon) which is an improvement to or is acquired or constructed property (or improvement thereon) or which is real property being improved by such acquired or constructed property (or improvement thereon), and (ii) any such Lien shall be created contemporaneously with, or within 180 days after, the acquisition or construction of such property;
(l)    any Lien existing on property of a Person immediately prior to its being consolidated with or merged into either Obligor or a Subsidiary or its becoming a Subsidiary, or any Lien existing on any property acquired by either Obligor or a Subsidiary at the time such property is so acquired (whether or not the Indebtedness secured thereby shall have assumed), provided that (i) no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person’s becoming a Subsidiary or such acquisition of property, and (ii) each such Lien shall extend solely to the item or items of property so acquired (and proceeds thereof) and, if required by the terms of the instrument originally creating such Lien, other property which is an improvement to or is acquired for specific use in connection with such acquired property;
(m)    any Lien renewing, extending, replacing or refunding any Lien permitted by paragraphs (j), (k) or (l) of this Section 10.6, provided that (i) the principal amount of Indebtedness secured by such Lien immediately prior to such extension, renewal, replacement or refunding is not increased or the maturity thereof reduced, (ii) such Lien is not extended to any other property, and (iii) immediately after such extension, renewal, replacement or refunding, no Default or Event of Default would exist;

-45-




(n)    Liens on pledged cash of the Parent Guarantor and its Subsidiaries required for notional cash pooling arrangements in the ordinary course of business and not securing Indebtedness for borrowed money;
(o)    Liens on property or assets of the Parent Guarantor and its Subsidiaries securing Senior Indebtedness under this Agreement, the Notes and the other Transaction Facilities and the other obligations of the Parent Guarantor and its Subsidiaries under the Transaction Facilities, provided that each lender or holder thereunder (or an authorized administrative agent on its behalf) is a party to or otherwise bound by the Intercreditor Agreement;
(p)    Liens not to exceed $500,000,000, on terms and conditions satisfactory to the Required Holders, securing performance and financial letters of credit issued by lenders under the 2013 Revolving Credit Agreement, the 2015 Term Loan Agreement and/or the 2015 Revolving Credit Agreement (but outside of such Credit Agreements) to the extent such Liens (i) arise under the Security Documents (or any other documents that grant a Lien on assets of the Parent Guarantor and its Subsidiaries to secure the obligations hereunder and under the other Transaction Facilities) and (ii) are subject to the Intercreditor Agreement (up to such $500,000,000 limit), including the requirement that such lenders shall vote in the same class as the lenders under the 2013 Revolving Credit Agreement and the 2015 Revolving Credit Agreement; and
(q)    Liens securing Priority Debt of the Obligors or any Subsidiary, provided that the aggregate outstanding principal amount of any such Priority Debt shall be permitted by Sections 10.7 and 10.10, and, provided further that, notwithstanding the foregoing, no such Liens may secure any obligations under or pursuant to any Credit Agreement within the provisions of this Section 10.6(q) unless concurrently therewith the Obligors shall secure the Notes, or shall cause the Notes to be secured, equally and ratably with such obligations pursuant to documentation (including without limitation an intercreditor agreement) in form and substance reasonably satisfactory to the Required Holders.
Section 10.7.    Leverage Ratios, Capital Markets Indebtedness    . (a) The Parent Guarantor shall not permit the ratio (the “Leverage Ratio”) of (i) all Adjusted Indebtedness of the Parent Guarantor and its Subsidiaries as of any date of determination (but excluding Excluded JV Indebtedness) to (ii) EBITDA for the most recently-ended period of four-fiscal quarters for which financial statements were required to be delivered to exceed the lesser of (x) the ratio set forth below and (y) the level required to be maintained under a similar leverage covenant contained in any Credit Agreement for such applicable fiscal period:

-46-




Four Fiscal Quarters Ending
Maximum Leverage Ratio
March 31, 2017
4.00 to 1.00
June 30, 2017
5.25 to 1.00
September 30, 2017
6.00 to 1.00
December 31, 2017
4.00 to 1.00
March 31, 2018
4.00 to 1.00
June 30, 2018
3.25 to 1.00
September 30, 2018 and each fiscal quarter thereafter
3.00 to 1.00
(b)    The Parent Guarantor shall not permit the ratio (the “Senior Secured Leverage Ratio”) of (i) all Senior Secured Indebtedness of the Parent Guarantor and its Subsidiaries as of any date of determination to (ii) EBITDA for the most recently-ended period of four-fiscal quarters for which financial statements were required to be delivered to exceed the lesser of (x) the ratio set forth below and (y) the level required to be maintained under a similar leverage covenant contained in any Credit Agreement for such applicable fiscal period:

Four Fiscal Quarters Ending
Maximum Senior Secured Leverage Ratio
March 31, 2017
4.00 to 1.00
June 30, 2017
4.50 to 1.00
September 30, 2017
4.50 to 1.00
December 31, 2017
3.00 to 1.00
March 31, 2018
3.00 to 1.00
June 30, 2018 and each fiscal quarter thereafter
2.50 to 1.00

(c)    For purposes of this Section 10.7, if during the period of calculation any Obligor or any Subsidiary shall have acquired or disposed of any Person or acquired or disposed of all or substantially all of the operating assets of any Person, EBITDA for such period shall be calculated after giving pro forma effect thereto as if such transaction occurred on the first day of such period.
The Leverage Ratio and the Senior Secured Leverage Ratio shall be calculated as of the last day of each fiscal quarter based upon, as applicable (A) for Adjusted Indebtedness, Adjusted Indebtedness (but excluding Excluded JV Indebtedness) as of the last day of each such fiscal quarter, (B) for Senior Secured Indebtedness, Senior Secured Indebtedness as of the last day of each such fiscal quarter and (C) for EBITDA, the actual amount for the four quarter period ending on such day, calculated, with respect to acquisitions and disposals, if any, as provided in the preceding paragraph.


-47-




(d)    The Parent Guarantor shall not, nor shall it permit any Subsidiary to, create, incur, assume or otherwise become directly or indirectly liable with respect to any unsecured Indebtedness pursuant to a capital markets transaction or any substitution thereof prior to October 31, 2017, unless such unsecured Indebtedness constitutes Subordinated Indebtedness.
Section 10.8.    Consolidated Net Worth. The Parent Guarantor shall not permit its Consolidated Net Worth at any time on or after December 31, 2016 to be less than (a) the sum of (x) eighty-five percent (85%) of the actual net worth of the Parent Guarantor and its Subsidiaries on a consolidated basis as of December 31, 2016 (after giving effect to write downs associated with the Capital Services Business Sale) plus (y) fifty percent (50%) of the sum of Consolidated Net Income (if positive) earned in each fiscal quarter, commencing with the fiscal quarter ending on March 31, 2017, less (b) a one-time non-cash tax expense resulting from the tax gain on the Capital Services Business Sale, taken at the time of such sale, not to exceed $150,000,000. Notwithstanding the foregoing, in no event shall Consolidated Net Worth of the Parent Guarantor required by this Section 10.8 as of December 31, 2016 be less than $1,200,000,000.
Section 10.9.    Fixed Charge Coverage Ratio. The Parent Guarantor and its consolidated Subsidiaries shall maintain a ratio (“Fixed Charge Coverage Ratio”), without duplication, of Consolidated Net Income Available for Fixed Charges to Consolidated Fixed Charges of at least 1.50 to 1.00 for the most recently-ended period of four fiscal quarters for which financial statements were required to be delivered. For purposes of all calculations of the Fixed Charge Coverage Ratio, Interest Expense attributable to the Notes shall be excluded unless the Release Date occurs.
If, during the period for which Consolidated Net Income Available for Fixed Charges and Consolidated Fixed Charges are being calculated, the Parent Guarantor or any Subsidiary has acquired any Person (or the assets thereof) resulting in such Person becoming or otherwise resulting in a Subsidiary, compliance with this Section 10.9 shall be determined by calculating Consolidated Net Income Available for Fixed Charges and Consolidated Fixed Charges on a pro forma basis as if such Subsidiary had become such a Subsidiary on the first day of such period and any Indebtedness incurred in connection therewith was incurred on such date.
Section 10.10.    Priority Debt. (a) The Obligors will not at any time permit the aggregate outstanding principal amount of all Priority Debt to exceed the 15% of Consolidated Net Worth (with Consolidated Net Worth being determined as of the end of the then most recent ended fiscal quarter of the Parent Guarantor).
(b)    From and after the Sixth Amendment Effective Date, the Parent Guarantor shall not, nor shall it permit any Subsidiary to, create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any secured Indebtedness at any time that the Leverage Ratio is greater than or equal to 3.00 to 1.00 (the Leverage Ratio as evidenced to the holders and such evidence reasonably satisfactory to the Required Holders) if such secured Indebtedness is prohibited under any Credit Agreement.


-48-




Section 10.11.    Investments. Except to the extent permitted pursuant to Section 10.13, neither the Parent Guarantor nor any of its Subsidiaries shall directly or indirectly make or own any Investment except:
(a)    Investments in cash and Cash Equivalents;
(b)    Permitted Existing Investments (as defined in the 2015 Term Loan Agreement on the Sixth Amendment Effective Date) in an amount not greater than the amount thereof on July 8, 2015;
(c)    Investments in trade receivables or received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;
(d)    Investments consisting of deposit accounts maintained by the Parent Guarantor and its Subsidiaries;
(e)    Investments consisting of non-cash consideration from a sale, assignment, transfer, lease, conveyance or other disposition of property permitted by Section 10.3;
(f)    Investments in any consolidated Subsidiaries (i) outstanding on the Sixth Amendment Effective Date, and (ii) after the Sixth Amendment Effective Date, additional Investments (A) in Note Parties, (B) by Subsidiaries of the Parent Guarantor that are not Note Parties in other Subsidiaries that are not Note Parties, (C) by Subsidiaries of the Parent Guarantor that are not Note Parties in Note Parties and (D) by the Note Parties in consolidated Subsidiaries that are not Note Parties in an aggregate amount invested not to exceed $50,000,000;
(g)    Investments in joint ventures (other than Subsidiaries) and nonconsolidated Subsidiaries in an aggregate amount not to exceed $200,000,000 at any time;
(h)    Investments constituting Permitted Acquisitions;
(i)    Investments constituting Indebtedness permitted by Sections 10.7 and 10.10 or Contingent Obligations permitted by Section 10.12;
(j)    Investments in addition to those referred to elsewhere in this Section 10.11 in an aggregate amount not to exceed ten percent (10%) of consolidated tangible assets of the Parent Guarantor and its Subsidiaries at any time; provided that any such Investments incurred after the Sixth Amendment Effective Date shall only be permitted to the extent that on the date of such Investment the Leverage Ratio is less than 3.00 to 1.00 (the Leverage Ratio as evidenced to the holders and such evidence reasonably satisfactory to the Required Holders); and



-49-




(k)    Investments of The Shaw Group Inc. and its Subsidiaries permitted under the Transaction Agreement.
Section 10.12.    Contingent Obligations. None of the Parent Guarantor’s Subsidiaries shall directly or indirectly create or become or be liable with respect to any Contingent Obligation, except: (a) recourse obligations resulting from endorsement of negotiable instruments for collection in the ordinary course of business; (b) Permitted Existing Contingent Obligations (as defined in the 2015 Term Loan Agreement on the Sixth Amendment Effective Date); (c) Contingent Obligations (i) incurred by any Subsidiary of the Parent Guarantor to support the performance of bids, tenders, sales or contracts (other than for the repayment of borrowed money) of any other Subsidiary of the Parent Guarantor or, solely to the extent of its relative ownership interest therein, any Person (other than a Wholly-Owned Subsidiary of the Parent Guarantor) in which such Subsidiary has a joint interest or other ownership interest, in each case in the ordinary course of business, and, in the case of joint ventures or other ownership interests, the Contingent Obligation in respect thereof is in an aggregate amount not to exceed $30,000,000, and (ii) with respect to surety, appeal and performance bonds obtained by the Parent Guarantor or any Subsidiary (provided that the Indebtedness with respect thereto is permitted pursuant to Sections 10.7 and 10.10) or, solely to the extent of its relative ownership interest therein, any Person (other than a Wholly-Owned Subsidiary of the Parent Guarantor) in which such Subsidiary has a joint interest or other ownership interest, in each case in the ordinary course of business and, in the case of joint ventures or other ownership interests, the Contingent Obligation in respect thereof is in an aggregate amount not to exceed $30,000,000; (d) Contingent Obligations of the Subsidiary Guarantors under the Subsidiary Guaranty; and (e) Contingent Obligations in respect of the Transaction Facilities and Contingent Obligations of The Shaw Group Inc. and its Subsidiaries permitted under the Transaction Agreement.
Section 10.13.    Subsidiaries; Permitted Acquisitions. The Parent Guarantor shall not create, acquire or capitalize any Subsidiary after the Sixth Amendment Effective Date unless (x) no Default or Event of Default shall have occurred and be continuing or would result therefrom; (y) after such creation, acquisition or capitalization, all of the representations and warranties contained herein shall be true and correct (unless such representation and warranty is made as of a specific date, in which case, such representation or warranty shall be true and correct as of such date); and (z) after such creation, acquisition or capitalization the Parent Guarantor and such Subsidiary shall be in compliance with the terms of Section 9.8 and Section 10.18. From the Sixth Amendment Effective Date until the date on which the Leverage Ratio has been less than 3.00 to 1.00 for two consecutive fiscal quarters (as evidenced to the holders and such evidence reasonably satisfactory to the Required Holders), neither the Parent Guarantor nor its Subsidiaries shall make any Acquisitions unless otherwise approved by the Required Holders. Thereafter, neither the Parent Guarantor nor its Subsidiaries shall make any Acquisitions, other than Acquisitions meeting the following requirements or otherwise approved by the Required Holders (each such Acquisition constituting a “Permitted Acquisition”):
(a)    as of the date of consummation of such Acquisition (before and after taking into account such Acquisition), all representations and warranties set forth in this Agreement and the other Financing Agreements shall be true and correct in all material respects as though made on

-50-




such date (unless such representation and warranty is made as of a specific date, in which case, such representation and warranty shall be true and correct as of such date) and no event shall have occurred and then be continuing which constitutes a Default or Event of Default under this Agreement;
(b)    prior to the consummation of any such Permitted Acquisition, the Parent Guarantor shall provide written notification to the holders of all pro forma adjustments to EBITDA to be made in connection with such Acquisition;
(c)    the purchase is consummated pursuant to a negotiated acquisition agreement on a non-hostile basis and approved by the target company’s board of directors (and shareholders, if necessary) prior to the consummation of the Acquisition;
(d)    the businesses being acquired shall be substantially similar, related or incidental to the businesses or activities engaged in by the Parent Guarantor and its Subsidiaries on July 8, 2015;
(e)    prior to such Acquisition and the incurrence of any Indebtedness permitted by Section 10.7(d) and Section 10.10 in connection therewith, the Parent Guarantor shall deliver to the holders a certificate from one of the Responsible Officers, demonstrating, on a pro forma basis using unadjusted historical audited or reviewed unaudited financial statements obtained from the seller(s) in respect of each such Acquisition as if the Acquisition and such incurrence of Indebtedness had occurred on the first day of the twelve-month period ending on the last day of the Parent Guarantor’s most recently completed fiscal quarter, the Parent Guarantor would have been in compliance with the financial covenants in Sections 10.7(a)–(c),10.8, 10.9 and 10.10(a) and not otherwise in an Event of Default; and
(f)    without the prior written consent of the Required Holders, (i) the purchase price for the Acquisition (including, without limitation or duplication, cash, Capital Stock, Restricted Payments and Indebtedness assumed) shall not exceed 10% of Consolidated Net Worth as of the Parent Guarantor’s most recently ended fiscal year prior to such Acquisition and (ii) the aggregate of the purchase price for all Acquisitions (including, without limitation or duplication, cash, Capital Stock, Restricted Payments and Indebtedness assumed) otherwise permitted hereunder shall not exceed $400,000,000 from and after July 8, 2015.
Section 10.14.    Sales and Leasebacks. Neither the Parent Guarantor nor any of its Subsidiaries shall become liable, directly, by assumption or by Contingent Obligation, with respect to any Sale and Leaseback Transaction (other than the Permitted Sale and Leaseback Transactions and sale and leaseback obligations of The Shaw Group Inc. and its Subsidiaries permitted under the Transaction Agreement), unless the sale involved is not prohibited under Section 10.3, the lease involved is not prohibited under Section 10.7 and any related Investment is not prohibited under Sections 10.11.
Section 10.15.    Subsidiary Covenants. Except for any (a) encumbrance or restriction binding upon The Shaw Group Inc. and its Subsidiaries permitted under the Transaction Agreement, (b) encumbrance or restriction contained in any of the Transaction Facilities (or any amendments or Permitted Refinancings

-51-




thereof, provided that such amendments or refinancings are no more materially restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing), (c) customary provisions restricting subletting, assignment of any lease or assignment of any agreement entered into in the ordinary course of business, (d) customary restrictions and conditions contained in any agreement relating to a sale or disposition not prohibited by Section 10.3 of this Agreement, or (e) any agreement in effect at the time a Subsidiary becomes a Subsidiary, so long as it was not entered into in connection with or in contemplation of such Person becoming a Subsidiary, the Parent Guarantor will not, and will not permit any Subsidiary to, create or otherwise cause to become effective or suffer to exist any consensual encumbrance or restriction of any kind on the ability of any Subsidiary to pay dividends or make any other distribution on its stock or redemption of its stock, or make any other Restricted Payment, pay any Indebtedness or other obligation owed to Parent Guarantor or any other Subsidiary, make loans or advances or other Investments in the Parent Guarantor or any other Subsidiary, or sell, transfer or otherwise convey any of its property to the Parent Guarantor or any other Subsidiary, or merge, consolidate with or liquidate into the Parent Guarantor or any other Subsidiary.
Section 10.16.    Hedging Obligations. The Parent Guarantor shall not and shall not permit any of its Subsidiaries to enter into any Hedging Arrangements evidencing Hedging Obligations, other than Hedging Arrangements entered into by the Parent Guarantor or its Subsidiaries pursuant to which the Parent Guarantor or such Subsidiary has hedged its reasonably estimated interest rate, foreign currency or commodity exposure, and which are non-speculative in nature.
Section 10.17.    Issuance of Disqualified Stock. Neither the Parent Guarantor, nor any of its Subsidiaries shall issue any Disqualified Stock. All issued and outstanding Disqualified Stock shall be treated as Indebtedness for all purposes of this Agreement, and the amount of such deemed Indebtedness shall be the aggregate amount of the liquidation preference of such Disqualified Stock.
Section 10.18.    Non-Guarantor Subsidiaries. The Parent Guarantor will not at any time permit the sum of the consolidated assets of all of the Parent Guarantor’s Subsidiaries which are not Subsidiary Guarantors (the non-guarantor Subsidiaries being referred to collectively as the “Non-Obligor Subsidiaries”) to exceed twenty percent (20%) of the Parent Guarantor’s and its Subsidiaries consolidated assets. For the avoidance of doubt, Excluded Joint Ventures shall be disregarded for purposes of this Section 10.18.
Section 10.19.    Intercompany Indebtedness. The Parent Guarantor shall not create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness arising from loans from any Subsidiary to the Parent Guarantor unless (a) such Indebtedness is unsecured and (b) such Indebtedness shall be expressly subordinate to the payment in full in cash of the obligations under the Notes and this Agreement on terms satisfactory to the Required Holders.
Section 10.20.    Restricted Payments. The Parent Guarantor shall not, nor shall it permit any Subsidiary to, declare, make or pay any Restricted Payments in excess of $250,000,000 in the aggregate during any period of twelve (12) consecutive months, other than (a) payments and prepayments of

-52-




Indebtedness of The Shaw Group Inc. or any of its Subsidiaries existing on July 8, 2015 and permitted under the Transaction Agreement (b) payments and prepayments of the Transaction Facilities, (c) any Subsidiary may declare and pay dividends ratably with respect to its Equity Interests and (d) other Restricted Payments so long as when each such Restricted Payment is made, on a pro forma basis, the Leverage Ratio of the Parent Guarantor and its Subsidiaries for the most recently-ended period of four-fiscal quarters shall be less than 1.50 to 1.00. Notwithstanding the foregoing, from the Sixth Amendment Effective Date until the date on which the Leverage Ratio has been less than 3.00 to 1.00 for two consecutive fiscal quarters (as evidenced to the holders and such evidence reasonably satisfactory to the Required Holders), neither the Parent Guarantor nor its Subsidiaries shall (i) make any share repurchases; provided that for the avoidance of doubt any share repurchases or other Restricted Payments pursuant to employee benefit arrangements shall be expressly permitted, or (ii) pay any cash dividends on account of any Equity Interests of the Parent Guarantor in excess of $0.07 per share per fiscal quarter.
SECTION 11.
EVENTS OF DEFAULT.
An “Event of Default” shall exist if any of the following conditions or events shall occur and be continuing from and after the date of the Closing:
(a)    the Company defaults in the payment of any principal or Make-Whole Amount, if any, on any Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise; or
(b)    the Company defaults in the payment of any interest on any Note for more than five Business Days after the same becomes due or any Obligor defaults in the payment of any amount payable pursuant to Section 13 for more than twenty Business Days after the same becomes due and payable; or
(c)    either Obligor defaults in the performance of or compliance with any term contained in Section 7.1(f), Section 9.11, Section 9.13, Section 9.14 or Section 10; or
(d)    either Obligor or any Subsidiary Guarantor defaults in the performance of or compliance with any of its obligations contained herein, in any other Financing Agreement or in a Subsidiary Guarantee, respectively (in each case, other than those referred to in Sections 11(a), (b) and (c)), and such default is not remedied within 30 days after the earlier of (i) a Responsible Officer obtaining actual knowledge of such default and (ii) either Obligor receiving written notice of such default from any holder of a Note (any such written notice to be identified as a “notice of default” and to refer specifically to this Section 11(d)); or
(e)    the Parent Guarantee, any Subsidiary Guarantee or any Security Document ceases to be a legally valid, binding and enforceable obligation or contract of the Obligors or a Subsidiary Guarantor (other than upon a release of any Subsidiary Guarantor from its Subsidiary Guarantee in accordance with the terms of Section 2.3(b)), as applicable, or either Obligor or any Subsidiary Guarantor (or any party by, through or on account of an Obligor or such Subsidiary Guarantor)

-53-




challenges the validity, binding nature or enforceability of the Parent Guarantee, a Subsidiary Guarantee or any Security Document, as applicable; or
(f)    any representation or warranty made in writing by or on behalf of either Obligor in any Financing Agreement or by a Subsidiary Guarantor in its Subsidiary Guarantee or by any officer of either Obligor or any Subsidiary Guarantor in any writing furnished in connection with the transactions contemplated hereby proves to have been false or incorrect in any material respect on the date as of which made; or
(g)    (i) either Obligor or any Subsidiary is in default (as principal or as guarantor or other surety) in the payment of any principal of or premium or make-whole amount or interest on any Indebtedness that is outstanding in an aggregate principal amount of at least $75,000,000 beyond any period of grace provided with respect thereto, or (ii) either Obligor or any Subsidiary is in default in the performance of or compliance with any term of any evidence of any Indebtedness in an aggregate outstanding principal amount of at least $75,000,000 or of any mortgage, indenture or other agreement relating thereto or any other condition exists, and as a consequence of such default or condition such Indebtedness has become, or has been declared (or one or more Persons are entitled to declare such Indebtedness to be), due and payable before its stated maturity or before its regularly scheduled dates of payment, or (iii) as a consequence of the occurrence or continuation of any event or condition (other than the passage of time or the right of the holder of Indebtedness to convert such Indebtedness into equity interests), (x) either Obligor or any Subsidiary has become obligated to purchase or repay Indebtedness before its regular maturity or before its regularly scheduled dates of payment in an aggregate outstanding principal amount of at least $75,000,000, or (y) one or more Persons have the right to require any Obligor or any Subsidiary so to purchase or repay such Indebtedness; or
(h)    either Obligor or any Subsidiary (i) is generally not paying, or admits in writing its inability to pay, its debts as they become due, (ii) files, or consents by answer or otherwise to the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy, insolvency, reorganization, moratorium or other similar law of any jurisdiction, (iii) makes an assignment for the benefit of its creditors, (iv) consents to the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, (v) is adjudicated as insolvent or to be liquidated, or (vi) takes corporate action for the purpose of any of the foregoing; or
(i)    a court or Governmental Authority of competent jurisdiction enters an order appointing, without consent by either Obligor or any of its Subsidiaries, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or constituting an order for relief or approving a petition for relief or reorganization or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of either

-54-




Obligor or any of its Subsidiaries, or any such petition shall be filed against either Obligor or any of its Subsidiaries and such petition shall not be dismissed within 60 days; or
(j)    any event occurs with respect to either Obligor or a Subsidiary that under the laws of any jurisdiction is analogous to any of the events described in Section 11(h) or (i); or
(k)    a final judgment or judgments for the payment of money aggregating in excess of $75,000,000 (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage) are rendered against one or more of the Obligors and their Subsidiaries and which judgments are not, within 30 days after entry thereof, bonded, discharged or stayed pending appeal, or are not discharged within 30 days after the expiration of such stay; or
(l)    if (i) any Plan shall fail to satisfy the minimum funding standards of ERISA or the Code for any plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under section 412 of the Code, (ii) a notice of intent to terminate any Plan shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have instituted proceedings under ERISA section 4042 to terminate or appoint a trustee to administer any Plan or the PBGC shall have notified either Obligor or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the aggregate “amount of unfunded benefit liabilities” (within the meaning of section 4001(a)(18) of ERISA) under all Plans (other than Multiemployer Plans, determined in accordance with Title IV of ERISA, shall exceed $75,000,000, (iv) either Obligor or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to Employee Benefit Plans, (v) either Obligor or any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) either Obligor or any Subsidiary establishes or amends any employee welfare benefit plan (as such term is defined in Section 3 of ERISA) that provides post-employment welfare benefits in a manner that would increase the liability of either Obligor or any Subsidiary thereunder; and any such event or events described in clauses (i) through (vi) above, either individually or together with any other such event or events, could reasonably be expected to have a Material Adverse Effect; or
(m)    any Lien purported to be granted from time to time with respect to any property other than immaterial property pursuant to the terms of any Security Document ceases to be a valid first priority perfected Lien, other than in accordance with the express terms hereof or thereof and other than solely as a direct result of the action or inaction of the Collateral Agent or holders.





-55-




SECTION 12.
REMEDIES ON DEFAULT, ETC.
Section 12.1.    Acceleration. (a) If an Event of Default with respect to either Obligor described in Section 11(h), (i) or (j) (other than an Event of Default described in clause (i) of Section 11(h) or described in clause (vi) of Section 11(h) by virtue of the fact that such clause encompasses clause (i) of Section 11(h)) has occurred, all the Notes then outstanding shall automatically become immediately due and payable.
(b)    If any other Event of Default has occurred and is continuing, the Required Holders may at any time at their option, by notice or notices to the Company, declare all the Notes then outstanding to be immediately due and payable.
(c)    If any Event of Default described in Section 11(a) or (b) has occurred and is continuing, any holder or holders of Notes at the time outstanding affected by such Event of Default may at any time, at its or their option, by notice or notices to the Company, declare all the Notes held by it or them to be immediately due and payable.
Upon any Notes becoming due and payable under this Section 12.1, whether automatically or by declaration, such Notes will forthwith mature and the entire unpaid principal amount of such Notes, plus (x) all accrued and unpaid interest thereon (including, but not limited to, interest accrued thereon at the Default Rate) and (y) the Make-Whole Amount determined in respect of such principal amount (to the full extent permitted by applicable law), shall all be immediately due and payable, in each and every case without presentment, demand, protest or further notice, all of which are hereby waived. Each Obligor acknowledges, and the parties hereto agree, that each holder of a Note has the right to maintain its investment in the Notes free from repayment by the Obligors (except as herein specifically provided for) and that the provision for payment of a Make-Whole Amount by the Obligors in the event that the Notes are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances.
Section 12.2.    Other Remedies. If any Default or Event of Default has occurred and is continuing, and irrespective of whether any Notes have become or have been declared immediately due and payable under Section 12.1, the holder of any Note at the time outstanding may proceed to protect and enforce the rights of such holder by an action at law, suit in equity or other appropriate proceeding, whether for the specific performance of any agreement contained herein or in any Note, or for an injunction against a violation of any of the terms hereof or thereof, or in aid of the exercise of any power granted hereby or thereby or by law or otherwise.
Section 12.3.    Rescission. At any time after any Notes have been declared due and payable pursuant to Section 12.1(b) or (c), the Required Holders or, if the Notes have been declared due and payable pursuant to Section 12.1(c) by any holder or holders of Notes, such holder or holders, as the case may be, by written notice to the Company, may rescind and annul any such declaration and its consequences if (a) the Obligors have paid all overdue interest on the Notes, all principal of and Make-Whole Amount, if any, on any Notes that are due and payable and are unpaid other than by reason of such declaration, and all interest on such overdue principal and Make-Whole Amount, if any, and (to the extent permitted by applicable law) any

-56-




overdue interest in respect of the Notes, at the Default Rate, (b) neither any Obligor nor any other Person shall have paid any amounts which have become due solely by reason of such declaration, (c) all Events of Default and Defaults, other than non-payment of amounts that have become due solely by reason of such declaration, have been cured or have been waived pursuant to Section 17, and (d) no judgment or decree has been entered for the payment of any monies due pursuant hereto or to the Notes. No rescission and annulment under this Section 12.3 will extend to or affect any subsequent Event of Default or Default or impair any right consequent thereon.
Section 12.4.    No Waivers or Election of Remedies, Expenses, Etc. No course of dealing and no delay on the part of any holder of any Note in exercising any right, power or remedy shall operate as a waiver thereof or otherwise prejudice such holder’s rights, powers or remedies. No right, power or remedy conferred by the Financing Agreements (including by any Note) upon any holder thereof shall be exclusive of any other right, power or remedy referred to herein or therein or now or hereafter available at law, in equity, by statute or otherwise. Without limiting the obligations of the Obligors under Section 16, the either Obligors will pay to the holder of each Note on demand such further amount as shall be sufficient to cover all costs and expenses of such holder incurred in any enforcement or collection under this Section 12, including, without limitation, reasonable attorneys’ fees, expenses and disbursements.
SECTION 13.
TAX INDEMNIFICATION.
All payments whatsoever under the Financing Agreements required to be made by the Parent Guarantor will be made by the Parent Guarantor in lawful currency of the United States of America free and clear of, and without liability for withholding or deduction for or on account of, any present or future Taxes of whatever nature imposed or levied by or on behalf of any jurisdiction other than the United States (or any political subdivision or taxing authority of or in such jurisdiction) (hereinafter a “Taxing Jurisdiction”), unless the withholding or deduction of such Tax is compelled by law.
If any deduction or withholding for any Tax of a Taxing Jurisdiction shall at any time be required in respect of any amounts to be paid by the Parent Guarantor under the Financing Agreements, the Parent Guarantor will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and pay to each holder of a Note such additional amounts as may be necessary in order that the net amounts paid to such holder pursuant to the terms of the Financing Agreements after such deduction, withholding or payment (including, without limitation, any required deduction or withholding of Tax on or with respect to such additional amount), shall be not less than the amounts then due and payable to such holder under the terms of the Financing Agreements before the assessment of such Tax, provided that no payment of any additional amounts shall be required to be made for or on account of:
(a)    any Tax that would not have been imposed but for the existence of any present or former connection between such holder (or a fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation or any Person other than the holder to whom the Notes or any amount payable thereon

-57-




is attributable for the purposes of such Tax) and the Taxing Jurisdiction, other than the mere holding of the relevant Note or the receipt of payments thereunder or in respect thereof or the enforcement of remedies in respect thereof, including, without limitation, such holder (or such other Person described in the above parenthetical) being or having been a citizen or resident thereof, or being or having been present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein, provided that this exclusion shall not apply with respect to a Tax that would not have been imposed but for the Parent Guarantor, after the date of the Closing, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of the Financing Agreements are made to, the Taxing Jurisdiction imposing the relevant Tax;
(b)    any Tax that would not have been imposed but for the delay or failure by such holder (following a written request by the Parent Guarantor) in the filing with the relevant Taxing Jurisdiction of Forms (as defined below) that are required to be filed by such holder to avoid or reduce such Taxes (including for such purpose any refilings or renewals of filings that may from time to time be required by the relevant Taxing Jurisdiction), provided that the filing of such Forms would not (in such holder’s reasonable judgment) impose any unreasonable burden (in time, resources or otherwise) on such holder or result in any confidential or proprietary income tax return information being revealed, either directly or indirectly, to any Person and such delay or failure could have been lawfully avoided by such holder, and provided further that such holder shall be deemed to have satisfied the requirements of this clause (b) upon the good faith completion and submission of such Forms (including refilings or renewals of filings) as may be specified in a written request of the Parent Guarantor no later than 60 days after receipt by such holder of such written request (accompanied by copies of such Forms and related instructions, if any); or
(c)    any combination of clauses (a) and (b) above;
and provided further that in no event shall the Parent Guarantor be obligated to pay such additional amounts to any holder of a Note (i) not resident in the United States of America or any other jurisdiction in which an original Purchaser is resident for tax purposes on the date of the Closing in excess of the amounts that the Parent Guarantor would be obligated to pay if such holder had been a resident of the United States of America or such other jurisdiction, as applicable, for purposes of, and eligible for the benefits of, any double taxation treaty from time to time in effect between the United States of America or such other jurisdiction and the relevant Taxing Jurisdiction or (ii) registered in the name of a nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory interpretation of such law) securities held in the name of a nominee do not qualify for an exemption from the relevant Tax and the Parent Guarantor shall have given timely notice of such law or interpretation to such holder.
By acceptance of any Note, the holder of such Note agrees, subject to the limitations of clause (b) above, that it will from time to time with reasonable promptness (x) duly complete and deliver to or as reasonably directed by the Parent Guarantor all such forms, certificates, documents and returns provided to such holder by the Parent Guarantor (collectively, together with instructions for completing the same,

-58-




“Forms”) required to be filed by or on behalf of such holder in order to avoid or reduce any such Tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or of a tax treaty between the United States and such Taxing Jurisdiction and (y) provide the Parent Guarantor with such information with respect to such holder as the Parent Guarantor may reasonably request in order to complete any such Forms, provided that nothing in this Section 13 shall require any holder to provide information with respect to any such Form or otherwise if in the opinion of such holder such Form or disclosure of information would involve the disclosure of tax return or other information that is confidential or proprietary to such holder, and provided further that each such holder shall be deemed to have complied with its obligation under this paragraph with respect to any Form if such Form shall have been duly completed and delivered by such holder to the Parent Guarantor or mailed to the appropriate taxing authority (which shall be deemed to occur when such Form is submitted to the United States Internal Revenue Service in accordance with instructions contained in such Form), whichever is applicable, within 60 days following a written request of the Parent Guarantor (which request shall be accompanied by copies of such Form) and, in the case of a transfer of any Note, at least 90 days prior to the relevant interest payment date.
If any payment is made by the Parent Guarantor to or for the account of the holder of any Note after deduction for or on account of any Taxes, and increased payments are made by the Parent Guarantor pursuant to this Section 13, then, if such holder at its sole discretion determines that it has received or been granted a refund of such Taxes, such holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refund, reimburse to the Parent Guarantor such amount as such holder shall, in its sole discretion, determine to be attributable to the relevant Taxes or deduction or withholding. Nothing herein contained shall interfere with the right of the holder of any Note to arrange its tax affairs in whatever manner it thinks fit and, in particular, no holder of any Note shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such Tax in priority to any other claims, reliefs, credits or deductions available to it or (other than as set forth in clause (b) above) oblige any holder of any Note to disclose any information relating to its tax affairs or any computations in respect thereof.
The Parent Guarantor will furnish the holders of Notes, promptly and in any event within 60 days after the date of any payment by the Parent Guarantor of any Tax in respect of any amounts paid under the Financing Agreements, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of such Obligor, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any holder of a Note.
If the Parent Guarantor is required by any applicable law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any Tax in respect of which the Parent Guarantor would be required to pay any additional amount under this Section 13, but for any reason does not make such deduction or withholding with the result that a liability in respect of such Tax is assessed directly against the holder of any Note, and such holder pays such liability, then the Parent Guarantor will promptly reimburse such holder for such payment (including any related interest

-59-




or penalties to the extent such interest or penalties arise by virtue of a default or delay by the Parent Guarantor) upon demand by such holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction.
If the Parent Guarantor makes payment to or for the account of any holder of a Note and such holder is entitled to a refund of the Tax to which such payment is attributable upon the making of a filing (other than a Form described above), then such holder shall, as soon as practicable after receiving written request from the Parent Guarantor (which shall specify in reasonable detail and supply the refund forms to be filed) use reasonable efforts to complete and deliver such refund forms to or as directed by the Parent Guarantor, subject, however, to the same limitations with respect to Forms as are set forth above.
The obligations of the Parent Guarantor under this Section 13 shall survive the payment or transfer of any Note and the provisions of this Section 13 shall also apply to successive transferees of the Notes.
SECTION 14.
REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
Section 14.1.    Registration of Notes. The Company shall keep at its principal executive office a register for the registration and registration of transfers of Notes. The name and address of each holder of one or more Notes, each transfer thereof and the name and address of each transferee of one or more Notes shall be registered in such register. Prior to due presentment for registration of transfer, the Person in whose name any Note shall be registered shall be deemed and treated as the owner and holder thereof for all purposes hereof, and the Company shall not be affected by any notice or knowledge to the contrary. The Company shall give to any holder of a Note that is an Institutional Investor promptly upon request therefor, a complete and correct copy of the names and addresses of all registered holders of Notes.
Section 14.2.    Transfer and Exchange of Notes. Upon surrender of any Note to the Company at the address and to the attention of the designated officer (all as specified in Section 18(iii)), subject to compliance with applicable securities laws, for registration of transfer or exchange (and in the case of a surrender for registration of transfer accompanied by a written instrument of transfer duly executed by the registered holder of such Note or such holder’s attorney duly authorized in writing and accompanied by the relevant name, address and other information for notices of each transferee of such Note or part thereof), within ten Business Days thereafter, the Company shall execute and deliver, at the Company’s expense (except as provided below), one or more new Notes of the same series (as requested by the holder thereof) in exchange therefor, in an aggregate principal amount equal to the unpaid principal amount of the surrendered Note. Each such new Note shall be payable to such Person as such holder may request and shall be substantially in the form of Exhibit 1(a), Exhibit 1(b), Exhibit 1(c) or Exhibit 1(d), as applicable. Each such new Note shall be dated and bear interest from the date to which interest shall have been paid on the surrendered Note or dated the date of the surrendered Note if no interest shall have been paid thereon. The Company may require payment of a sum sufficient to cover any stamp tax or governmental charge imposed in respect of any such transfer of Notes. Notes shall not be transferred in denominations of less than U.S.$100,000, provided that if necessary to enable the registration of transfer by a holder of its entire holding of Notes, one Note may be in a denomination of less than U.S.$100,000. Any transferee, by its

-60-




acceptance of a Note registered in its name (or the name of its nominee), shall be deemed to have made the representations set forth in Section 6.2.
Section 14.3.    Replacement of Notes. Upon receipt by the Company at the address and to the attention of the designated officer (all as specified in Section 19(iii)) of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Note (which evidence shall be, in the case of an Institutional Investor, notice from such Institutional Investor of such ownership and such loss, theft, destruction or mutilation), and
(a)    in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it (provided that if the holder of such Note is, or is a nominee for, an original Purchaser or another holder of a Note with a minimum net worth of at least U.S.$50,000,000 or a Qualified Institutional Buyer, such Person’s own unsecured agreement of indemnity shall be deemed to be satisfactory), or
(b)    in the case of mutilation, upon surrender and cancellation thereof,
within ten Business Days thereafter, the Company at its own expense shall execute and deliver, in lieu thereof, a new Note of the same series, dated and bearing interest from the date to which interest shall have been paid on such lost, stolen, destroyed or mutilated Note or dated the date of such lost, stolen, destroyed or mutilated Note if no interest shall have been paid thereon.
SECTION 15.
PAYMENTS ON NOTES.
Section 15.1.    Place of Payment. Subject to Section 15.2, payments of principal, Make-Whole Amount, if any, and interest becoming due and payable on the Notes shall be made in New York, New York at the principal office of Bank of America, N.A. in such jurisdiction. The Company may at any time, by notice to each holder of a Note, change the place of payment of the Notes so long as such place of payment shall be either the principal office of the Company in such jurisdiction or the principal office of a bank or trust company in such jurisdiction.
Section 15.2.    Home Office Payment. So long as any Purchaser or its nominee shall be the holder of any Note, and notwithstanding anything contained in Section 15.1 or in such Note to the contrary, the Company will pay all sums becoming due on such Note for principal, Make-Whole Amount, if any, and interest by the method and at the address specified for such purpose below such Purchaser’s name in Schedule A, or by such other method or at such other address as such Purchaser shall have from time to time specified to the Company in writing for such purpose, without the presentation or surrender of such Note or the making of any notation thereon, except that upon written request of the Company made concurrently with or reasonably promptly after payment or prepayment in full of any Note, such Purchaser shall surrender such Note for cancellation, reasonably promptly after any such request, to the Company at its principal executive office or at the place of payment most recently designated by the Company pursuant to Section 15.1. Prior to any sale or other disposition of any Note held by a Purchaser or its nominee, such Purchaser will, at its election, either endorse thereon the amount of principal paid thereon and the last date

-61-




to which interest has been paid thereon or surrender such Note to the Company in exchange for a new Note or Notes pursuant to Section 15.2. The Company will afford the benefits of this Section 15.2 to any Institutional Investor that is the direct or indirect transferee of any Note purchased by a Purchaser under this Agreement and that has made the same agreement relating to such Note as the Purchasers have made in this Section 15.2.
SECTION 16.
EXPENSES, ETC.
Section 16.1.    Transaction Expenses. Whether or not the transactions contemplated hereby are consummated, the Obligors will pay all reasonable costs and expenses (including reasonable attorneys’ fees of a special counsel and, if reasonably required by the Required Holders, local or other counsel) incurred by the Purchasers and each other holder of a Note in connection with such transactions and in connection with any amendments, waivers or consents under or in respect of the Financing Agreements (including the Notes) (whether or not such amendment, waiver or consent becomes effective), including, without limitation: (a) the costs and expenses incurred in enforcing or defending (or determining whether or how to enforce or defend) any rights under the Financing Agreements (including the Notes) or in responding to any subpoena or other legal process or informal investigative demand issued in connection with the Financing Agreements (including the Notes), or by reason of being a holder of any Note, (b) the costs and expenses, including financial advisors’ fees, incurred in connection with the insolvency or bankruptcy of any Obligor or any Subsidiary or in connection with any work-out or restructuring of the transactions contemplated hereby, by the Notes or by any other Financing Agreement, (c) the costs and expenses incurred in connection with the initial filing of this Agreement and all related documents and financial information with the SVO provided, that such costs and expenses under this clause (c) shall not exceed $5,000, (d) the fees and expenses of the Collateral Agent under the Security Documents and (e) the fees and expenses of the Financial Advisor. The Obligors will pay, and will save each Purchaser and each other holder of a Note harmless from, all claims in respect of any fees, costs or expenses, if any, of brokers and finders (other than those, if any, retained by a Purchaser or other holder in connection with its purchase of the Notes).
The Parent Guarantor agrees to pay all stamp, documentary or similar taxes or fees which may be payable in respect of the exe