Exhibit








Execution Version


AMENDMENT NO. 3 AND WAIVER TO TERM LOAN AGREEMENT
This Amendment No. 3 and Waiver to Term Loan Agreement (this “Amendment”), dated as of May 8, 2017, is made by and among CHICAGO BRIDGE & IRON COMPANY N.V., a corporation organized under the laws of the Kingdom of the Netherlands (the “Company”), CHICAGO BRIDGE & IRON COMPANY (DELAWARE), a Delaware corporation (the “Borrower”), BANK OF AMERICA, N.A., a national banking association organized and existing under the laws of the United States (“Bank of America”), in its capacity as administrative agent for the Lenders (as defined in the Credit Agreement) (in such capacity, the “Administrative Agent”), and each of the Lenders signatory hereto. 
W I T N E S S E T H:
WHEREAS, each of the Company, the Borrower, the Administrative Agent, and the Lenders have entered into that certain Term Loan Agreement dated as of July 8, 2015 (as amended by that certain Amendment No. 1 to Term Loan Agreement, dated as of October 27, 2015, that certain Amendment No. 2 to Term Loan Agreement, dated as of February 24, 2017, and as hereby amended and as from time to time further amended, modified, supplemented, restated, or amended and restated, the “Credit Agreement”; capitalized terms used in this Amendment not otherwise defined herein shall have the respective meanings given thereto in the Credit Agreement as amended hereby), pursuant to which the Lenders have made available to the Borrower a senior unsecured term loan credit facility in an original aggregate principal amount of $500,000,000; and
WHEREAS, the Company has entered into the Guaranty pursuant to which it has guaranteed certain or all of the obligations of the Borrower under the Credit Agreement and the other Loan Documents; and
WHEREAS, the Borrower has requested that the Administrative Agent and the Lenders agree to amend the Credit Agreement in certain respects and to waive a Default or potential Default under the Credit Agreement, which the Administrative Agent and the Lenders party hereto are willing to do on the terms and conditions contained in this Amendment; 
NOW, THEREFORE, in consideration of the premises and further valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1.Amendments to Credit Agreement.  Subject to the terms and conditions set forth herein, the Credit Agreement (exclusive of Schedules and Exhibits thereto) shall be amended such that after giving effect to all such amendments, it shall read in its entirety as set forth on Annex I attached hereto.
2.    Amendments to Compliance Certificate.  Exhibit C to the Credit Agreement is hereby amended and restated in its entirety as set forth in Annex II hereto. 
3.    Waiver.  Pursuant to Section 10.01 of the Credit Agreement and subject to the terms and conditions hereof, effective as of the date hereof each Lender party hereto hereby waives:
(a)    the requirement set forth in Section 6.01(d) of the Credit Agreement for the Company to deliver a copy of the plan and forecast of the Company and its Subsidiaries for the fiscal year commencing January 1, 2017, and further waives any Default or potential Default that has arisen or may arise under Section 8.01(b) of the Credit Agreement in connection thereof; and


89400455_6







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


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(c)    After giving effect to this Amendment and the corresponding amendments to the Existing 2013 Revolving Credit Agreement and the Existing 2015 Revolving Credit Agreement, no Default or Event of Default has occurred and is continuing, or would result from the effectiveness of this Amendment.
6.    Consent of the Guarantors.  Each Guarantor hereby consents, acknowledges and agrees to the amendments and other matters set forth herein and hereby confirms and ratifies in all respects the Guaranty to which it is a party (including without limitation the continuation of each Guarantor’s payment and performance obligations thereunder upon and after the effectiveness of this Amendment and the amendments, waivers and consents contemplated hereby) and the enforceability of the applicable Guaranty against the applicable Guarantor in accordance with its terms.
7.    Entire Agreement.  This Amendment, together with all the Loan Documents (collectively, the “Relevant Documents”), sets forth the entire understanding and agreement of the parties hereto in relation to the subject matter hereof and supersedes any prior negotiations and agreements among the parties relating to such subject matter.  No promise, condition, representation or warranty, express or implied, not set forth in the Relevant Documents shall bind any party hereto, and no such party has relied on any such promise, condition, representation or warranty.  Each of the parties hereto acknowledges that, except as otherwise expressly stated in the Relevant Documents, no representations, warranties or commitments, express or implied, have been made by any party to the other in relation to the subject matter hereof or thereof.  None of the terms or conditions of this Amendment may be changed, modified, waived or canceled orally or otherwise, except in writing and in accordance with Section 10.01 of the Credit Agreement.
8.    Full Force and Effect of Credit Agreement.  Except as hereby specifically amended, waived, modified or supplemented, the Credit Agreement and each other Loan Document is hereby confirmed and ratified in all respects and shall be and remain in full force and effect according to its respective terms.
9.    Governing Law.  This Amendment shall in all respects be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts executed and to be performed entirely within such State, and shall be further subject to the provisions of Sections 10.14 and 10.15 of the Credit Agreement.
10.    Enforceability.  Should any one or more of the provisions of this Amendment be determined to be illegal or unenforceable as to one or more of the parties hereto, all other provisions nevertheless shall remain effective and binding on the parties hereto.  
11.    References.  All references in any of the Loan Documents to the “Credit Agreement” shall mean the Credit Agreement, as amended hereby.
12.    Successors and Assigns.  This Amendment shall be binding upon and inure to the benefit of the Company, the Borrower, the Administrative Agent and each of the Guarantors and Lenders, and their respective successors, legal representatives, and assignees to the extent such assignees are permitted assignees as provided in Section 10.06 of the Credit Agreement.
13.    No Novation.  Neither the execution and delivery of this Amendment nor the consummation of any other transaction contemplated hereunder is intended to constitute a novation of the Credit Agreement or of any of the other Loan Documents or any obligations thereunder.


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


4
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accounts, the aggregate average daily balance of which for all Loan Parties does not exceed $2,500,000 at any time; and
(b)    all proceeds and products of the foregoing.
Assets being disposed of in connection with Project Jazz shall not be included as, or required to be pledged as, Collateral; provided, however, in the event that Project Jazz is not consummated, such assets shall be included as, and be pledged as, Collateral to the extent it would not otherwise be excluded pursuant to this Section 16.
In no event shall the Collateral include any of the following:  
(i)    pledges and security interests prohibited by applicable law, rule or regulation (to the extent such law, rule or regulation is effective under applicable anti-assignment provisions of the Uniform Commercial Code (or foreign equivalent)); 
(ii)     assets of and equity interests in any joint venture or other non-wholly owned Subsidiary; 
(iii)    any asset or property if and for so long as the grant of a security interest therein is prohibited by, or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, sublicense, agreement, instrument or other document;
(iv)    any property in which the Loan Party now or hereafter has rights, to the extent in each case a security interest may not be granted by the Loan Party in such property without the consent of one or more third parties, including any Governmental Authority;
(v)     any property to the extent that such grant of a security interest would contravene the Agreed Collateral Principles; 
(vi)     any motor vehicles and any other assets subject to a certificate of title (other than proceeds thereof), to the extent a security interest in such motor vehicles or other assets cannot be perfected solely by filing a Uniform Commercial Code financing statement; and
(vii)    assets as to which the Administrative Agent and the Loan Parties reasonably agree that the costs of obtaining such security interest or perfection thereof are excessive in relation to the benefit to the Lenders of the security to be afforded thereby (the foregoing described in clauses (i) through (vii) are, collectively, the “Excluded Collateral”). 
The “Agreed Collateral Principles” are as follows: (i) notwithstanding anything herein to the contrary, no actions shall be required under the law of any non-U.S. jurisdiction in order to create or perfect any security interest other than the United Kingdom, Lichtenstein, Netherlands and Netherlands Antilles, (ii) no lien by any Person organized outside of the United States shall be made that would result in any breach of any law or regulation (or analogous restriction) of the jurisdiction of organization of such Person or result in any risk to the officers or directors of such Person or a civil or criminal liability, and (iii) it is expressly acknowledged that in certain jurisdictions it may be (A) impossible or impractical (including for legal and regulatory reasons) to create security over certain categories of assets or (B) it may take longer than agreed upon to grant or create such security over certain categories of assets, in which event the Administrative Agent will act reasonably in granting the necessary extension of timing for obtaining such security, provided, 


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




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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be made, executed and delivered by their duly authorized officers as of the day and year first above written.


BORROWER:


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




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












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







COMPANY:
CHICAGO BRIDGE & IRON COMPANY N.V.


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




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








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








ACKNOWLEDGEMENT


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




	
										
	 
	 
	 
	 
	 

	CHICAGO BRIDGE & IRON COMPANY, a Delaware corporation

	 
	 
	 

	By:
	 
	/s/ Michael S. Taff
	 

	 
	 
	Name:
	 
	Michael S. Taff
	 

	 
	 
	Title:
	 
	Authorized Signatory
	 

	 
	 

	CHICAGO BRIDGE & IRON COMPANY (DELAWARE)

	 
	 
	 

	By:
	 
	/s/ Michael S. Taff
	 

	 
	 
	Name:
	 
	Michael S. Taff
	 

	 
	 
	Title:
	 
	Authorized Signatory
	 

	 
	 

	CB&I TYLER COMPANY
	 

	 
	 
	 

	By:
	 
	/s/ Luciano Reyes
	 

	 
	 
	Name:
	 
	Luciano Reyes
	 

	 
	 
	Title:
	 
	Treasurer
	 

	 
	 

	CB&I, LLC
	 

	By:
	CB&I HoldCo, LLC, its Sole Member
	 

	 
	 
	 

	By:
	 
	/s/ Regina N. Hamilton
	 

	 
	 
	Name:
	 
	Regina N. Hamilton
	 

	 
	 
	Title:
	 
	Secretary
	 




	
	
	 

	CHICAGO BRIDGE & IRON COMPANY, an Illinois corporation




	
									
	By:
	 
	/s/ Luciano Reyes
	 

	 
	 
	Name:
	 Luciano Reyes
	 

	 
	 
	Title:
	 Treasurer
	 

	 
	 

	A&B BUILDERS, LTD.
	 

	 
	 
	 

	By:
	 
	/s/ Luciano Reyes
	 

	 
	 
	Name:
	 Luciano Reyes
	 

	 
	 
	Title:
	 Treasurer
	 








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







	
									
	 

	ASIA PACIFIC SUPPLY COMPANY

	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Treasurer

	

CBI AMERICAS LTD.

	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Treasurer

	 

	CSA TRADING COMPANY, LTD.

	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Treasurer

	 

	CB&I WOODLANDS L.L.C.

	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Treasurer

	 

	CBI COMPANY LTD.

	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Treasurer

	 

	CENTRAL TRADING COMPANY, LTD.

	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Treasurer




	
	
	 

	CONSTRUCTORS INTERNATIONAL, L.L.C.




	
					
	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Treasurer








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







	
					
	HBI HOLDINGS, L.L.C.

	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Treasurer




	
					
	 
	 
	 
	 
	 

	HOWE-BAKER INTERNATIONAL, L.L.C.




	
					
	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Treasurer

	 

	HOWE-BAKER ENGINEERS, LTD.

	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Treasurer

	 

	HOWE-BAKER HOLDINGS, L.L.C.

	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Treasurer

	 

	HOWE-BAKER MANAGEMENT, L.L.C.

	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Treasurer




	
	
	HOWE-BAKER INTERNATIONAL MANAGEMENT L.L.C.




	
					
	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Treasurer




	
	
	MATRIX ENGINEERING, LTD.




	
						
	 
	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Treasurer












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







	
	
	MATRIX MANAGEMENT SERVICES, L.L.C.




	
						
	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Treasurer

	 
	 
	 
	 
	 

	OCEANIC CONTRACTORS, INC.

	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Treasurer

	 

	CBI VENEZOLANA, S.A.

	 
	 

	By:
	 
	/s/ Rui Orlando Gomes

	 
	 
	Name:
	 
	Rui Orlando Gomes

	 
	 
	Title:
	 
	Treasurer

	 

	CBI MONTAJES DE CHILE LIMITADA

	 
	 

	By:
	 
	/s/ Rui Orlando Gomes

	 
	 
	Name:
	 
	Rui Orlando Gomes

	 
	 
	Title:
	 
	Director/Legal Representative

	 

	CB&I EUROPE B.V.

	 
	 

	By:
	 
	/s/ Raymond Buckley

	 
	 
	Name:
	 
	Raymond Buckley

	 
	 
	Title:
	 
	Director

	 

	CBI EASTERN ANSTALT

	 
	 

	By:
	 
	/s/ Raymond Buckley

	 
	 
	Name:
	 
	Raymond Buckley

	 
	 
	Title:
	 
	Director

	 




	
	
	CB&I POWER COMPANY B.V. 
(f/k/a CMP HOLDINGS B.V.)




	
					
	 
	 

	By:
	 
	Raymond Buckley

	 
	 
	Name:
	 
	Raymond Buckley

	 
	 
	Title:
	 
	Director








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







	
				
	CBI CONSTRUCTORS PTY LTD

	 

	By:
	/s/ Ian Michael Bendesh

	 
	Name:
	 
	Ian Michael Bendesh

	 
	Title:
	 
	Director




	
				
	 
	 
	 
	 

	CBI ENGINEERING AND CONSTRUCTION




	
				
	CONSULTANT (SHANGHAI) CO. LTD.

	 
	 

	By:
	 
	/s/ Raymond Buckley

	 
	 
	Name:
	 Raymond Buckley

	 
	 
	Title:
	 Chairman

	 

	CBI (PHILIPPINES), INC.

	 
	 

	By:
	 
	/s/ Tom Anderson

	 
	 
	Name:
	Tom Anderson

	 
	 
	Title:
	President

	 

	CBI OVERSEAS, LLC

	 
	 

	By:
	 
	/s/ Regina N. Hamilton

	 
	 
	Name:
	Regina N. Hamilton

	 
	 
	Title:
	 Secretary




	
				
	 
	 
	 
	 

	CB&I CONSTRUCTORS LIMITED

	 
	 

	By:
	 
	/s/ Kevin J. Forder

	 
	 
	Name:
	Kevin J. Forder

	 
	 
	Title:
	Director

	 

	CB&I HOLDINGS (U.K.) LIMITED

	 
	 

	By:
	 
	/s/ Kevin J. Forder

	 
	 
	Name:
	Kevin J. Forder

	 
	 
	Title:
	Director

	 

	CB&I UK LIMITED

	 
	 

	By:
	 
	/s/ Kevin J. Forder

	 
	 
	Name:
	Kevin J. Forder

	 
	 
	Title:
	Director

	 










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







	
								
	CB&I MALTA LIMITED

	 
	 

	By:
	 
	/s/ Duncan Wigney

	 
	 
	Name:
	 
	Duncan Wigney

	 
	 
	Title:
	 
	Director

	 

	LUTECH RESOURCES LIMITED

	 
	 

	By:
	/s/ Jonathan Stephenson

	 
	Name:
	Jonathan Stephenson

	 
	Title:
	Secretary
	 

	 
	 
	 
	 

	 

	NETHERLANDS OPERATING COMPANY B.V.

	 
	 

	By:
	 
	/s/ H.M. Koese

	 
	 
	Name:
	H. M. Koese

	 
	 
	Title:
	Director

	 
	 
	 
	 
	 

	CBI NEDERLAND B.V.

	 
	 

	By:
	 
	/s/ Ashok Joshi

	 
	 
	Name:
	Ashok Joshi

	 
	 
	Title:
	Director

	 




	
	
	ARABIAN GULF MATERIAL SUPPLY COMPANY, LTD.




	
					
	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Director




	
	
	PACIFIC RIM MATERIAL SUPPLY COMPANY, LTD.




	
					
	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Director




	
	
	 

	SOUTHERN TROPIC MATERIAL SUPPLY COMPANY, LTD.




	
					
	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Director








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







	
	
	 

	CHICAGO BRIDGE & IRON (ANTILLES) N.V.




	
					
	 
	 

	By:
	 
	/s/ Michael S. Taff

	 
	 
	Name:
	 
	Michael S. Taff

	 
	 
	Title:
	 
	Managing Director




	
	
	 

	LUMMUS TECHNOLOGY HEAT TRANSFER B.V.




	
								
	 
	 

	By:
	 
	/s/ John R. Alanese, Jr.

	 
	 
	Name:
	 
	John R. Albanese, Jr.

	 
	 
	Title:
	 
	Director

	 

	LEALAND FINANCE COMPANY B.V.

	 
	 

	By:
	 
	/s/ Michael S. Taff

	 
	 
	Name:
	 
	Michael S. Taff

	 
	 
	Title:
	 
	Managing Director

	 
	 
	 
	 
	 

	CB&I FINANCE COMPANY LIMITED

	 
	 

	By:
	 
	/s/ Kevin J. Forder

	 
	 
	Name:
	 
	Kevin J. Forder

	 
	 
	Title:
	 
	Director

	 

	CB&I OIL & GAS EUROPE B.V.

	 
	 

	By:
	 
	/s/ Michael S. Taff

	 
	 
	Name:
	 
	Michael S. Taff

	 
	 
	Title:
	 
	Managing Director

	 

	CBI COLOMBIANA S.A.

	 
	 

	By:
	 
	/s/ Michael S. Taff

	 
	 
	Name:
	 
	Michael S. Taff

	 
	 
	Title:
	 
	Director




	
	
	 

	CHICAGO BRIDGE & IRON COMPANY B.V.




	
					
	 
	 

	By:
	 
	/s/ Michael S. Taff

	 
	 
	Name:
	 
	Michael S. Taff

	 
	 
	Title:
	 
	Managing Director








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







	
										
	 

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


	 
	 

	 
	 
	 

	By:
	 
	/s/ John R. Albanese, Jr.
	 

	 
	 
	Name:
	 
	John R. Albanese, Jr.
	 

	 
	 
	Title:
	 
	Vice President – Finance – Treasurer
	 

	 
	 

	CB&I TECHNOLOGY VENTURES, INC.
	 

	(f/k/a LUMMUS CATALYST COMPANY LTD.)

	 
	 
	 

	By:
	 
	/s/ John R. Albanese, Jr.
	 

	 
	 
	Name:
	 
	John R. Albanese, Jr.
	 

	 
	 
	Title:
	 
	Vice President & Treasurer
	 

	 
	 
	 
	 
	 
	 
	 

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

	 
	 
	 
	 

	By:
	 
	/s/ John R. Albanese, Jr.
	 
	 

	 
	 
	Name:
	 
	John R. Albanese, Jr.
	 
	 

	 
	 
	Title:
	 
	Vice President & Treasurer
	 
	 

	 

	CATALYTIC DISTILLATION TECHNOLOGIES

	 
	 
	 
	 

	By:
	 
	/s/ John R. Albanese, Jr.
	 
	 

	 
	 
	Name:
	 
	John R. Albanese, Jr.
	 
	 

	 
	 
	Title:
	 
	Management Committee Member
	 
	 

	 
	 
	 

	CB&I TECHNOLOGY INC. (f/k/a LUMMUS TECHNOLOGY, INC.)
	 
	 

	 
	 
	 
	 

	By:
	 
	/s/ John R. Albanese, Jr.
	 
	 

	 
	 
	Name:
	 
	John R. Albanese, Jr.
	 
	 

	 
	 
	Title:
	 
	CFO & Treasurer
	 
	 

	 
	 
	 

	CBI SERVICES, LLC
	 
	 

	By:
	CB&I HoldCo, LLC, its Sole Member
	 
	 

	 
	 
	 
	 

	By:
	 
	/s/ Regina N. Hamilton
	 
	 

	 
	 
	Name:
	 
	Regina N. Hamilton
	 
	 

	 
	 
	Title:
	 
	Secretary
	 
	 












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







	
	
	 

	WOODLANDS INTERNATIONAL INSURANCE COMPANY




	
					
	 
	 

	By:
	 
	/s/ Robert Havlick

	 
	 
	Name:
	 
	Robert Havlick

	 
	 
	Title:
	 
	Director




	
	
	 

	CB&I HUNGARY HOLDING LIMITED LIABILITY COMPANY




	
					
	 
	 

	By:
	 
	/s/ William G. Lamb

	 
	 
	Name:
	 
	William G. Lamb

	 
	 
	Title:
	 
	Director




	
	
	 

	LUMMUS NOVOLEN TECHNOLOGY GMBH




	
					
	 
	 

	By:
	 
	/s/ Godofredo Follmer

	 
	 
	Name:
	 
	Godofredo Follmer

	 
	 
	Title:
	 
	Managing Director

	 
	 
	 
	 
	 

	CB&I LUMMUS GMBH

	 
	 

	By:
	 
	/s/ Andreas Schwarzhaupt

	 
	 
	Name:
	 
	Andreas Schwarzhaupt

	 
	 
	Title:
	 
	Managing Director

	 

	CB&I S.R.O.

	 
	 

	By:
	 
	/s/ Jiri Gregor

	 
	 
	Name:
	 
	Jiri Gregor

	 
	 
	Title:
	 
	Managing Director

	 

	CBI PERUANA S.A.C.

	 
	 

	By:
	 
	/s/ James E. Bishop

	 
	 
	Name:
	 
	James E. Bishop

	 
	 
	Title:
	 
	General Manager

	 

	HORTON CBI, LIMITED

	 
	 

	By:
	 
	/s/ Greg Guse

	 
	 
	Name:
	 
	Greg Guse

	 
	 
	Title:
	 
	Director








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







	
					
	 

	CB&I (NIGERIA) LIMITED

	 
	 

	By:
	 
	/s/ Andy Dadosky

	 
	 
	Name:
	 
	Andy Dadosky

	 
	 
	Title:
	 
	Director

	 

	CB&I SINGAPORE PTE LTD.

	 
	 

	By:
	 
	/s/ Michael S. Taff

	 
	 
	Name:
	 
	Michael S. Taff

	 
	 
	Title:
	 
	Director

	 

	CB&I NORTH CAROLINA, INC.

	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Director




	
						
	 
	 
	 
	 
	 
	 

	SHAW ALLOY PIPING PRODUCTS, LLC




	
					
	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Manager

	 

	CB&I Walker LA, L.L.C.

	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Manager




	
					
	 
	 
	 
	 
	 

	CB&I ENVIRONMENTAL & INFRASTRUCTURE, INC.




	
					
	(f/k/a SHAW ENVIRONMENTAL, INC.)

	 
	 

	By:
	 
	/s/ Luciano Reyes

	 
	 
	Name:
	 
	Luciano Reyes

	 
	 
	Title:
	 
	Director








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







	
											
	   
	 
	 
	 
	 
	 
	 
	 

	CB&I OVERSEAS (FAR EAST) INC.
	 
	 
	 

	 
	 
	 
	 
	 

	By:
	 
	   /s/ Joseph Christaldi
	 
	 
	 

	 
	 
	Name:
	 
	Joseph Christaldi
	 
	 
	 

	 
	 
	Title:
	 
	Director
	 
	 
	 

	 
	 
	 
	 

	THE SHAW GROUP INC.
	 
	 
	 

	 
	 
	 
	 
	 

	By:
	 
	/s/ Luciano Reyes
	 
	 
	 

	 
	 
	Name:
	 
	Luciano Reyes
	 
	 
	 

	 
	 
	Title:
	 
	Treasurer
	 
	 
	 

	 

	LUMMUS GASIFICATION TECHNOLOGY LICENSING COMPANY

	 
	 
	 
	 
	 

	By:
	 
	/s/ John R. Albanese, Jr.
	 
	 
	 

	 
	 
	Name:
	 
	John R. Albanese, Jr.
	 
	 
	 

	 
	 
	Title:
	 
	Director
	 
	 
	 

	 
	 
	 
	 

	CB&I LAURENS, INC.
	 
	 
	 

	 
	 
	 
	 
	 

	By:
	 
	/s/ William G. Lamb
	 
	 
	 

	 
	 
	Name:
	 
	William G. Lamb
	 
	 
	 

	 
	 
	Title:
	 
	Vice President – Global Tax
	 
	 
	 

	 
	 
	 
	 

	CB&I GOVERNMENT SOLUTIONS, INC.
	 
	 

	 
	 
	 
	 
	 

	By:
	 
	/s/ Luciano Reyes
	 
	 
	 

	 
	 
	Name:
	 
	Luciano Reyes
	 
	 
	 

	 
	 
	Title:
	 
	Director
	 
	 
	 

	 
	 
	 
	 

	SHAW SSS FABRICATORS, INC.
	 
	 
	 

	 
	 
	 
	 
	 

	By:
	 
	/s/ Luciano Reyes
	 
	 
	 

	 
	 
	Name:
	 
	Luciano Reyes
	 
	 
	 

	 
	 
	Title:
	 
	Treasurer
	 
	 
	 

	 
	 

	CHICAGO BRIDGE & IRON COMPANY (NETHERLANDS), LLC
	 

	 
	 
	 
	 
	 

	By:
	 
	/s/ Regina N. Hamilton
	 
	 
	 

	 
	 
	Name:
	 
	Regina N. Hamilton
	 
	 
	 

	 
	 
	Title:
	 
	Director
	 
	 
	 








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







	
					
	 
	 
	 
	 
	 

	CBI US HOLDING COMPANY, INC

	 
	 

	By:
	 
	/s/ Regina N. Hamilton

	 
	 
	Name:
	 
	Regina N. Hamilton

	 
	 
	Title:
	 
	Secretary

	 
	 
	 
	 
	 

	CBI HOLDCO TWO, INC

	 
	 

	By:
	 
	/s/ Regina N. Hamilton

	 
	 
	Name:
	 
	Regina N. Hamilton

	 
	 
	Title:
	 
	Secretary

	 
	 
	 
	 
	 

	CBI COMPANY BV

	 
	 

	By:
	 
	/s/ Ashok Joshi

	 
	 
	Name:
	 
	Ashok Joshi

	 
	 
	Title:
	 
	Director

















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







ADMINISTRATIVE AGENT:


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




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


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









LENDERS:


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




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


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











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




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




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


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









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




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




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




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









BANK OF MONTREAL, as a Lender 




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




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











THE BANK OF NOVA SCOTIA, as a Lender 




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


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











BANK OF THE WEST, as a Lender


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


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











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




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




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











BNP PARIBAS, as a Lender 




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


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


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











BOKF, NA DBA BANK OF TEXAS, as a Lender 




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


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











CITIBANK, N.A., as a Lender 




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


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











COMPASS BANK, as a Lender 




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


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













CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender 




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




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


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











DBS BANK LTD., as a Lender 




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


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











FIFTH THIRD BANK, as a Lender 




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


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











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




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


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













HSBC BANK USA, NATIONAL ASSOCIATION, as a Lender 




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




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











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




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




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


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











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




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




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


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











LLOYDS BANK PLC, as a Lender 




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




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




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











MIZUHO BANK, LTD., as a Lender 




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




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













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




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




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




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









NBAD AMERICAS N.V., as a Lender 




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




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


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









THE NORTHERN TRUST COMPANY, as a Lender 




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




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













REGIONS BANK, as a Lender 




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




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











LENDERS: 
RIYAD BANK, HOUSTON AGENCY, as a Lender 




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




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




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











SANTANDER BANK, N.A., as a Lender 




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


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













SUNTRUST BANK, as a Lender 




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




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













THE STANDARD BANK OF SOUTH AFRICA LIMITED, as a Lender 




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


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











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




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


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













UNICREDIT BANK AG, NEW YORK BRANCH, as a Lender 




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


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


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











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




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


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














ANNEX I


CONFORMED CREDIT AGREEMENT


(see attached)









Execution Version









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


Dated as of July 8, 2015
among    


 

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


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


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


and


The Other Lenders Party Hereto


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


CRÉDIT AGRICOLE CORPORATE,
as Syndication Agent


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


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


67688554_13



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Page





	
					
	ARTICLE I
	 
	DEFINITIONS AND ACCOUNTING TERMS
	1
	


	1.01
	 
	Defined Terms
	1
	


	1.02
	 
	Other Interpretive Provisions
	32
	


	1.03
	 
	Accounting Terms
	33
	


	1.04
	 
	Rounding
	33
	


	1.05
	 
	Times of Day
	33
	


	1.06
	 
	Supplemental Disclosure
	33
	


	 
	 
	 
	 

	ARTICLE II
	 
	THE COMMITMENTS AND BORROWINGS
	34
	


	2.01
	 
	Loans
	34
	


	2.02
	 
	Borrowings, Conversions and Continuations of Loans
	34
	


	2.03
	 
	Prepayments
	35
	


	2.04
	 
	Reduction of Commitments
	36
	


	2.05
	 
	Repayment of Loans
	36
	


	2.06
	 
	Interest
	37
	


	2.07
	 
	Fees
	37
	


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


	2.09
	 
	Evidence of Debt
	38
	


	2.10
	 
	Payments Generally; Administrative Agent’s Clawback
	38
	


	2.11
	 
	Sharing of Payments by Lenders
	40
	


	2.12
	 
	Incremental Loans
	41
	


	2.13
	 
	Defaulting Lenders
	42
	


	 
	 
	 
	 

	ARTICLE III
	 
	TAXES, YIELD PROTECTION AND ILLEGALITY
	43
	


	3.01
	 
	Taxes
	44
	


	3.02
	 
	Illegality
	48
	


	3.03
	 
	Inability to Determine Rates
	49
	


	3.04
	 
	Increased Costs; Reserves on Eurodollar Rate Loans
	50
	


	3.05
	 
	Compensation for Losses
	51
	


	3.06
	 
	Mitigation Obligations; Replacement of Lenders
	52
	


	3.07
	 
	Survival
	52
	


	 
	 
	 
	 

	ARTICLE IV
	 
	CONDITIONS PRECEDENT
	52
	


	4.01
	 
	Conditions of Initial Advance
	52
	


	 
	 
	 
	 

	ARTICLE V
	 
	REPRESENTATIONS AND WARRANTIES
	54
	


	5.01
	 
	Organization; Corporate Powers
	54
	


	5.02
	 
	Authority, Execution and Delivery; Loan Documents
	54
	


	5.03
	 
	No Conflict; Governmental Consents
	55
	


	5.04
	 
	No Material Adverse Change
	55
	


	5.05
	 
	Financial Statements
	55
	


	5.06
	 
	Payment of Taxes
	56
	







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	5.07
	 
	Litigation; Loss Contingencies and Violations
	56
	


	5.08
	 
	Subsidiaries
	57
	


	5.09
	 
	ERISA
	57
	


	5.10
	 
	Accuracy of Information
	58
	


	5.11
	 
	Securities Activities
	58
	


	5.12
	 
	Material Agreements
	58
	


	5.13
	 
	Compliance with Laws
	58
	


	5.14
	 
	Assets and Properties
	59
	


	5.15
	 
	Statutory Indebtedness Restrictions
	59
	


	5.16
	 
	Insurance
	59
	


	5.17
	 
	Environmental Matters
	59
	


	5.18
	 
	Benefits
	60
	


	5.19
	 
	Solvency
	60
	


	5.20
	 
	OFAC
	60
	


	5.21
	 
	PATRIOT Act
	60
	


	5.22
	 
	Senior Indebtedness
	60
	


	5.23
	 
	Anti-Corruption Laws
	60
	


	5.24
	 
	Not an EEA Financial Institution
	61
	


	 
	 
	 
	 

	ARTICLE VI
	 
	AFFIRMATIVE COVENANTS
	61
	


	6.01
	 
	Financial Report
	61
	


	6.02
	 
	Notices
	62
	


	6.03
	 
	Existence, Etc
	66
	


	6.04
	 
	Corporate Powers; Conduct of Business
	66
	


	6.05
	 
	Compliance with Laws, Etc
	66
	


	6.06
	 
	Payment of Taxes and Claims; Tax Consolidation
	66
	


	6.07
	 
	Insurance
	66
	


	6.08
	 
	Inspection of Property; Books and Records; Discussions
	66
	


	6.09
	 
	ERISA Compliance
	67
	


	6.10
	 
	Maintenance of Property
	67
	


	6.11
	 
	Environmental Compliance
	67
	


	6.12
	 
	Use of Proceeds
	67
	


	6.13
	 
	Subsidiary Guarantors
	68
	


	6.14
	 
	Foreign Employee Benefit Compliance
	69
	


	6.15
	 
	Anti-Corruption Laws
	69
	


	 
	 
	 
	 

	ARTICLE VII
	 
	NEGATIVE COVENANTS
	69
	


	7.01
	 
	Indebtedness
	69
	


	7.02
	 
	Sales of Assets
	71
	


	7.03
	 
	Liens
	72
	


	7.04
	 
	Investments
	73
	


	7.05
	 
	Contingent Obligations
	74
	


	7.06
	 
	Conduct of Business; Subsidiaries; Permitted Acquisitions
	74
	







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	7.07
	 
	Transactions with Shareholders and Affiliates
	76
	


	7.08
	 
	Restriction on Fundamental Changes
	76
	


	7.09
	 
	Sales and Leasebacks
	76
	


	7.10
	 
	Margin Regulations
	76
	


	7.11
	 
	ERISA
	77
	


	7.12
	 
	Subsidiary Covenants
	77
	


	7.13
	 
	Hedging Obligations
	77
	


	7.14
	 
	Issuance of Disqualified Stock
	77
	


	7.15
	 
	Non-Guarantor Subsidiaries
	78
	


	7.16
	 
	Intercompany Indebtedness
	78
	


	7.17
	 
	Restricted Payments
	78
	


	7.18
	 
	Financial Covenants
	78
	


	7.19
	 
	Sanctions
	80
	


	7.20
	 
	Anti-Corruption Laws
	80
	


	 
	 
	 
	 

	ARTICLE VIII
	 
	EVENTS OF DEFAULT AND REMEDIES
	80
	


	8.01
	 
	Events of Default
	81
	


	8.02
	 
	Remedies Upon Event of Default
	83
	


	8.03
	 
	Application of Funds
	84
	


	 
	 
	 
	 

	ARTICLE IX
	 
	ADMINISTRATIVE AGENT
	85
	


	9.01
	 
	Appointment and Authority
	85
	


	9.02
	 
	Rights as a Lender
	85
	


	9.03
	 
	Exculpatory Provisions
	85
	


	9.04
	 
	Reliance by Administrative Agent
	86
	


	9.05
	 
	Delegation of Duties
	86
	


	9.06
	 
	Resignation of Administrative Agent
	87
	


	9.07
	 
	Non-Reliance on Administrative Agent and Other Lenders
	88
	


	9.08
	 
	No Other Duties, Etc
	88
	


	9.09
	 
	Administrative Agent May File Proofs of Claim
	88
	


	9.10
	 
	Guaranty Matters
	89
	


	9.11
	 
	Hedge Obligations
	89
	


	 
	 
	 
	 

	ARTICLE X
	 
	MISCELLANEOUS
	89
	


	10.01
	 
	Amendments, Etc
	89
	


	10.02
	 
	Notices; Effectiveness; Electronic Communication
	91
	


	10.03
	 
	No Waiver; Cumulative Remedies; Enforcement
	93
	


	10.04
	 
	Expenses; Indemnity; Damage Waiver
	93
	


	10.05
	 
	Payments Set Aside
	95
	


	10.06
	 
	Successors and Assigns
	96
	


	10.07
	 
	Treatment of Certain Information; Confidentiality
	99
	


	10.08
	 
	Right of Setoff
	100
	


	10.09
	 
	Interest Rate Limitation
	101
	







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	10.10
	 
	Counterparts; Integration; Effectiveness
	101
	


	10.11
	 
	Survival of Representations and Warranties
	101
	


	10.12
	 
	Severability
	102
	


	10.13
	 
	Replacement of Lenders
	102
	


	10.14
	 
	Governing Law; Jurisdiction; Etc
	103
	


	10.15
	 
	Waiver of Jury Trial
	104
	


	10.16
	 
	No Advisory or Fiduciary Responsibility
	104
	


	10.17
	 
	Electronic Execution of Assignments and Certain Other Documents
	105
	


	10.18
	 
	USA PATRIOT Act
	105
	


	10.19
	 
	Entire Agreement
	106
	


	10.20
	 
	Keepwell
	106
	


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


	 
	 
	 
	 

	ARTICLE XI
	 
	GUARANTY
	107
	


	11.01
	 
	Guaranty
	107
	


	11.02
	 
	Waivers; Subordination of Subrogation
	107
	


	11.03
	 
	Guaranty Absolute
	108
	


	11.04
	 
	Acceleration
	109
	


	11.05
	 
	Marshaling; Reinstatement
	109
	


	11.06
	 
	Termination Date
	109
	


	11.07
	 
	Subordination of Intercompany Indebtedness
	110
	









67688554_13








SCHEDULES


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


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




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67688554_13








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











“Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify to the Company and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in substantially a form approved by the Administrative Agent.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Aggregate Commitments” means the Commitments of all the Lenders.
“Agreement” means this Credit Agreement.
“Agreement Accounting Principles” means generally accepted accounting principles as in effect in the United States from time to time, applied in a manner consistent with that used in preparing the financial statements of the Company referred to in Section 5.05(b) hereof; provided, however, except as provided in Section 1.03, that with respect to the calculation of financial ratios and other financial tests required by this Agreement, “Agreement Accounting Principles” means generally accepted accounting principles as in effect in the United States as of the date of this Agreement, applied in a manner consistent with that used in preparing the financial statements of the Company referred to in Section 5.05(b) hereof.
“Amendment No. 2 Closing Date” means February 24, 2017, the effective date of Amendment No. 2 to Term Loan Agreement by and among the Company, the Borrower, the Administrative Agent and the Lenders party thereto.
“Amendment No. 3 Closing Date” means May 8, 2017, the effective date of Amendment No. 3and Waiver to Term Loan Agreement by and among the Company, the Borrower, the Administrative Agent and the Lenders party thereto.
“Applicable Percentage” means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Facility represented by (a) on or prior to the Closing Date, such Lender’s Commitment at such time and (b) thereafter, the outstanding principal amount of such Lender’s Loans at such time.  If the commitment of each Lender to make Loans has been terminated pursuant to Section 8.02 or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments.  The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.


    









“Applicable Rate” means, from time to time, the following percentages per annum, based upon the Leverage Ratio as set forth below:
	
				
	Applicable Rate

	Pricing Level
	Leverage Ratio
	Eurodollar Rate +
	Base Rate +

	1
	Less than 0.75 to 1.00
	1.250%
	0.250%

	2
	Less than 1.25 to 1.00 but greater than or equal to 0.75 to 1.00
	1.375%
	0.375%

	3
	Less than 2.00 to 1.00 but greater than or equal to 1.25 to 1.00
	1.500%
	0.500%

	4
	Less than 2.50 to 1.00 but greater than or equal to 2.00 to 1.00
	1.750%
	0.750%

	5
	Less than 3.00 to 1.00 but greater than or equal to 2.50 to 1.00
	2.000%
	1.000%

	6
	Less than 3.50 to 1.00 but greater than or equal to 3.00 to 1.00
	2.250%
	1.250%

	7
	Greater than or equal to 3.50 to 1.00
	2.500%
	1.500%






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


    









all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), Compass Bank, BNP Paribas Securities Corp., Crédit Agricole Corporate and Investment Bank and The Bank of Tokyo-Mitsubishi UFJ, Ltd., each in its capacity as a joint lead arranger and joint bookrunner.
“Asset Sale” means, with respect to any Person, the sale, lease, conveyance, disposition or other transfer by such Person of any of its assets (including by way of a sale-leaseback transaction, and including the sale or other transfer of any of the Equity Interests of any Subsidiary of such Person, but not the Equity Interests of such Person) to any Person other than the Company or any of its wholly owned Subsidiaries other than (a) the sale of inventory in the ordinary course of business and (b) the sale or other disposition of any obsolete equipment disposed of in the ordinary course of business.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit D or any other form (including electronic documentation generated by MarkitClear or other electronic platform) approved by the Administrative Agent.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Bank of America” means Bank of America, N.A. and its successors.
“Bankruptcy Code” means 11 U.S.C. § 101 et seq.
“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate,” and (c) the Eurodollar Rate plus 1.00%; provided that in no event shall such rate be less than 0%.  The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.  
“Benefit Plan” means a defined benefit plan as defined in Section 3(35) of ERISA (other than a Multiemployer Plan or Foreign Pension Plan) in respect of which the Company or any other 


    









member of the Controlled Group is, or within the immediately preceding six (6) years was, an “employer” as defined in Section 3(5) of ERISA.
“Borrower” has the meaning specified in the introductory paragraph hereto.
“Borrower Materials” has the meaning specified in Section 6.02.
“Borrowing” means a borrowing consisting of simultaneous Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period, made by each of the Lenders pursuant to Section 2.01 or by some or all of the Lenders pursuant to Section 2.12, as applicable.
“Borrowing/Election Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, in each case pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, New York, New York or the state where the Administrative Agent’s Office is located, and in respect of any fundings, disbursements, settlements and payments in respect of any Eurodollar Rate Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any Eurodollar Rate Loan, means any such day that is also a London Banking Day.
“Capital Stock” means (a) in the case of a corporation, corporate stock, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock, (c) in the case of a partnership, partnership interests (whether general or limited) and (d) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
“Capitalized Lease” of a Person means any lease of property by such Person as lessee which would be capitalized on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles.
“Capitalized Lease Obligations” of a Person means the amount of the obligations of such Person under Capitalized Leases which would be capitalized on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles.
“Cash Equivalents” means (a) marketable direct obligations issued or unconditionally guaranteed by the United States government and backed by the full faith and credit of the United States government; (b) domestic and Eurodollar certificates of deposit and time deposits, bankers’ acceptances and floating rate certificates of deposit issued by any commercial bank organized under the laws of the United States, any state thereof, the District of Columbia, any foreign bank, or its branches or agencies, the long-term indebtedness of which institution at the time of acquisition is 


    









rated A- (or better) by S&P or A3 (or better) by Moody’s, and which certificates of deposit and time deposits are fully protected against currency fluctuations for any such deposits with a term of more than ninety (90) days; (c) shares of money market, mutual or similar funds having assets in excess of $100,000,000 and the investments of which are limited to (x) investment grade securities (i.e., securities rated at least Baa by Moody’s or at least BBB by S&P) and (y) commercial paper of United States and foreign banks and bank holding companies and their subsidiaries and United States and foreign finance, commercial industrial or utility companies which, at the time of acquisition, are rated A-1 (or better) by S&P or P-1 (or better) by Moody’s (all such institutions being, “Qualified Institutions”); (d) commercial paper of Qualified Institutions; provided that the maturities of such Cash Equivalents shall not exceed three hundred sixty-five (365) days from the date of acquisition thereof; and (e) auction rate securities (long-term, variable rate bonds tied to short-term interest rates) that are rated Aaa by Moody’s or AAA by S&P.
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Change of Control” means an event or series of events by which:
(a)    any “person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly, of twenty percent (20%) or more of the voting power of the then-outstanding Capital Stock of the Company entitled to vote generally in the election of the directors of the Company; or
(b)    the majority of the board of directors of the Company fails to consist of Continuing Directors; or
(c)    except as expressly permitted under the terms of this Agreement, the Company, the Borrower or any Subsidiary Borrower consolidates with or merges into another Person or conveys, transfers or leases all or substantially all of its property to any Person, or any Person consolidates with or merges into the Company, the Borrower or any Subsidiary Borrower, in either event pursuant to a transaction in which the outstanding Capital Stock of the Company, the Borrower or such Subsidiary Borrower, as applicable, is reclassified or changed into or exchanged for cash, securities or other property; or


    









(d)    except as otherwise expressly permitted under the terms of this Agreement, the Company shall cease to own and control, either directly or indirectly, all of the economic and voting rights associated with all of the outstanding Capital Stock of each of the Subsidiary Guarantors or shall cease to have the power, directly or indirectly, to elect all of the members of the board of directors of each of the Subsidiary Guarantors.
“Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01.
“Closing-Date Incremental Loan” has the meaning specified in Section 2.12(a).
“Code” means the Internal Revenue Code of 1986.
“Commitment” means, as to each Lender, its obligation to make Loans to the Borrower pursuant to Section 2.01 in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, in each case, as such amount may be adjusted from time to time in accordance with this Agreement.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Company” has the meaning specified in the introductory paragraph hereto.
“Compliance Certificate” means a certificate substantially in the form of Exhibit C.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Fixed Charges” means, for any period, the sum of (a) Consolidated Long-Term Lease Rentals for such period and (b) consolidated Interest Expense of the Company and its Subsidiaries (including capitalized interest and the interest component of Capitalized Leases) for such period.
“Consolidated Long-Term Lease Rentals” means, for any period, the sum of the minimum amount of rental and other obligations of the Company and its Subsidiaries required to be paid during such period under all leases of real or personal property (other than Capitalized Leases) having a term (including any required renewals or extensions or any renewals or extensions at the option of the lessor or lessee) of one year or more after the commencement of the initial term, determined on a consolidated basis in accordance with GAAP.
“Consolidated Net Income” means, for any period, the net income (or deficit) of the Company and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, but excluding in any event (a) any extraordinary gain or loss (net of any tax effect), (b) cash distributions received by the Company or any Subsidiary from any Eligible Joint Venture and (c) net earnings of any Person (other than a Subsidiary) in which the Company or any Subsidiary has an 


    









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


    









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


    









and diligently conducted and with respect to which adequate reserves or other appropriate provisions are being maintained in accordance with Agreement Accounting Principles;
(c)    Liens (other than Environmental Liens and Liens in favor of the IRS or the PBGC) incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other types of social security benefits or to secure the performance of bids, tenders, sales, contracts (other than for the repayment of borrowed money), surety, appeal and performance bonds; provided that (i) all such Liens do not in the aggregate materially detract from the value of the Company’s or its Subsidiary’s assets or property taken as a whole or materially impair the use thereof in the operation of the businesses taken as a whole, and (ii) all Liens securing bonds to stay judgments or in connection with appeals do not secure at any time an aggregate amount exceeding $5,000,000;
(d)    Liens arising with respect to zoning restrictions, easements, encroachments, licenses, reservations, covenants, rights-of-way, utility easements, building restrictions and other similar charges, restrictions or encumbrances on the use of real property which do not in any case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of the Company or any of its respective Subsidiaries;
(e)    Liens of attachment or judgment with respect to judgments, writs or warrants of attachment, or similar process against the Company or any of its Subsidiaries which do not constitute a Default under Section 8.01(h) hereof; and
(f)    any interest or title of the lessor in the property subject to any operating lease entered into by the Company or any of its Subsidiaries in the ordinary course of business.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per annum; provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum.
“Defaulting Lender” means, subject to Section 2.13(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Company in writing that such failure is the result of such Lender’s determination that one or more 


    









conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, (b) has notified the Company or the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Company, to confirm in writing to the Administrative Agent and the Company that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Company), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that for the avoidance of doubt, a Lender shall not be a Defaulting Lender solely by virtue of (i) the ownership or acquisition of any Capital Stock in that Lender or any direct or indirect parent company thereof by a Governmental Authority or (ii) in the case of a Solvent Person, the precautionary appointment of an administrator, guardian, custodian or other similar official by a Governmental Authority under or based on the Law of the country where such Person is subject to home jurisdiction supervision if applicable Law requires that such appointment not be publicly disclosed, in any such case, so long as such ownership interest or where such action (as applicable) does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.13(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Company and each Lender promptly following such determination.
“Designated Hedging Agreement” has the meaning specified in Section 11.07.
“Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is the subject of any Sanction.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.


    









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


    









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


    









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


    









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


    









“Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 10.20 and any other “keepwell, support or other agreement” for the benefit of such Loan Party and any and all guarantees of such Loan Party’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Loan Party, or a grant by such Loan Party of a security interest, becomes effective with respect to such Swap Obligation.  If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes excluded in accordance with the first sentence of this definition.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Company under Section 10.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii) or (c), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.
“Existing 2012 Term Loan Credit Agreement” means that certain Term Loan Agreement dated as of December 21, 2012 by and among the Company, the Borrower, as borrower, the lenders party thereto and Bank of America, N.A., as administrative agent, in each case, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Existing 2013 Revolving Credit Agreement” means that certain Credit Agreement dated as of October 28, 2013 by and among the Company, the Borrower and certain other Subsidiaries of the Company party thereto, as borrowers, the lenders party thereto and Bank of America, N.A., as administrative agent, in each case, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Existing 2015 Revolving Credit Agreement” means that certain Amended and Restated Revolving Credit Agreement dated as of July 8, 2015 by and among the Company, the Borrower and certain other Subsidiaries of the Company party thereto, as borrowers, the lenders party thereto 


    









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


“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to such intergovernmental agreement.
“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the immediately preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.
“Fee Letter” means the letter agreement, dated May 21, 2015, among the Company, the Borrower, the Administrative Agent and Merrill Lynch, Pierce, Fenner & Smith Incorporated.
“Financial Officer” means any of the chief financial officer, principal accounting officer, treasurer or controller of the Company, acting singly.
“Foreign Employee Benefit Plan” means any employee benefit plan as defined in Section 3(3) of ERISA which is maintained or contributed to for the benefit of the employees of the Company, any of its respective Subsidiaries or any members of its Controlled Group and is not covered by ERISA pursuant to ERISA Section 4(b)(4).
“Foreign Lender” means a Lender that is not a U.S. Person. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
“Foreign Pension Plan” means any employee benefit plan as described in Section 3(3) of ERISA for which the Company or any member of its Controlled Group is a sponsor or administrator and which (a) is maintained or contributed to for the benefit of employees of the Company, any of its respective Subsidiaries or any member of its Controlled Group, (b) is not covered by ERISA pursuant to Section 4(b)(4) of ERISA, and (c) under applicable local law, is required to be funded through a trust or other funding vehicle.


    









“Foreign Subsidiary” means a Subsidiary of the Company which is not a Domestic Subsidiary.
“Freeport Joint Ventures” means the joint ventures related to the Freeport Liquefaction Project.
“Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.
“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Guaranteed Obligations” has the meaning specified in Section 11.01(a).
“Guarantors” means, collectively, (a) the Subsidiary Guarantors, (b) the Company and (c) with respect to the payment and performance by each Specified Loan Party of its obligations under its Guaranty with respect to all Hedging Obligations under Designated Hedging Agreements, the Borrower.
“Guaranty” means each of (a) the guaranty by the Company of all of the Obligations of the Borrower pursuant to Article XI of this Agreement and (b) the Subsidiary Guaranty, in each case, as amended, restated, supplemented or otherwise modified from time to time.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Hedge Bank” means any Person that, (a) at the time it enters into a Hedging Obligation not prohibited by this Agreement, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Hedging Obligation not prohibited by this Agreement, in each case, in its capacity as a party to such Hedging Obligation.
“Hedging Arrangements” has the meaning specified in “Hedging Obligations” below.


    









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


    









“Initial Loan” has the meaning specified in Section 2.01.
“Interest Expense” means, for any period, the total gross interest expense of the Company and its consolidated Subsidiaries, whether paid or accrued, including, without duplication, the interest component of Capitalized Leases, commitment and letter of credit fees, the discount or implied interest component of Off-Balance Sheet Liabilities, capitalized interest expense, pay-in-kind interest expense, amortization of debt documents and net payments (if any) pursuant to Hedging Arrangements relating to interest rate protection, all as determined in conformity with Agreement Accounting Principles.
“Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date.
“Interest Period” means as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date seven days, one month, two months, three months or six months thereafter (or, subject to the Administrative Agent’s receipt of all Lenders’ consent, another period so long as such period is not more than twelve (12) months), as selected by the Borrower in its Borrowing/Election Notice, or such other period that is twelve months or less requested by the Borrower and consented to by all of the Lenders; provided that:
(a)    any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless, in the case of a Eurodollar Rate Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the immediately preceding Business Day;
(b)    any Interest Period pertaining to a Eurodollar Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c)    no Interest Period shall extend beyond the Maturity Date.
“Investment” means, with respect to any Person, (a) any purchase or other acquisition by that Person of any Indebtedness, Equity Interests or other securities, or of a beneficial interest in any Indebtedness, Equity Interests or other securities, issued by any other Person; (b) any purchase by that Person of all or substantially all of the assets of a business (whether of a division, branch, unit operation, or otherwise) conducted by another Person; and (c) any loan, advance (other than deposits with financial institutions available for withdrawal on demand, prepaid expenses, accounts receivable, advances to employees and similar items made or incurred in the ordinary course of business) or capital contribution actually invested by that Person to any other Person (but excluding any subsequent passive increases or accretions to the value of such initial capital contribution), 


    









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


    









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


    









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


    









Arrangers, any Affiliate of the Administrative Agent or any Lender, any Indemnitee, of any kind or nature, present or future, arising under this Agreement or any other Loan Document, whether or not evidenced by any note, guaranty or other instrument, whether or not for the payment of money, whether arising by reason of an extension of credit, loan, foreign exchange risk, guaranty, indemnification, or in any other manner, whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, now existing or hereafter arising and however acquired.  The term includes, without limitation, all interest, charges, expenses, fees, attorneys’ fees and disbursements, paralegals’ fees (in each case whether or not allowed), and any other sum chargeable to the Company or any of its Subsidiaries under this Agreement or any other Loan Document, but excludes Hedging Obligations.
“OFAC” means the Office of Foreign Assets Control.
“Off-Balance Sheet Liabilities” of a Person means (a) any repurchase obligation or liability of such Person or any of its Subsidiaries with respect to Receivables sold by such Person or any of its Subsidiaries, (b) any liability of such Person or any of its Subsidiaries under any sale and leaseback transactions which do not create a liability on the consolidated balance sheet of such Person, (c) any liability of such Person or any of its Subsidiaries under any financing lease or so-called “synthetic lease” or “tax ownership operating lease” transaction, or (d) any obligations of such Person or any of its Subsidiaries arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the consolidated balance sheets of such Person and its Subsidiaries.
“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).


    









“Outstanding Amount” means, on any date, the aggregate outstanding principal amount of the Loans after giving effect to any borrowings and prepayments or repayments of such Loans occurring on such date.
“Participant” has the meaning specified in Section 10.06(d).
“Participant Register” has the meaning specified in Section 10.06(d).
“PBGC” means the Pension Benefit Guaranty Corporation.
“Permitted Acquisition” has the meaning specified in Section 7.06.
“Permitted Existing Contingent Obligations” means the Contingent Obligations of the Company and its Subsidiaries identified as such on Schedule 7.05 to this Agreement.
“Permitted Existing Indebtedness” means the Indebtedness of the Company and its Subsidiaries identified as such on Schedule 7.01 to this Agreement.
“Permitted Existing Investments” means the Investments of the Company and its Subsidiaries identified as such on Schedule 7.04 to this Agreement.
“Permitted Existing Liens” means the Liens on assets of the Company and its Subsidiaries identified as such on Schedule 7.03 to this Agreement.
“Permitted Refinancing” means, with respect to any Indebtedness (the “Refinanced Indebtedness”), any refinancings, refundings, renewals or extensions thereof (the “Refinancing Indebtedness” thereof); provided that (a) at the time of such refinancing, refunding, renewal or extension, no Default has occurred and is continuing, (b) the amount of such Refinancing Indebtedness does not exceed the amount of such Refinanced Indebtedness except by an amount equal to customary underwriting discounts, fees or commissions, expenses and prepayment premium (if any) incurred in connection with such refinancing, refunding, renewal or extension, plus any existing commitments unutilized under such Refinanced Indebtedness and (c) such Refinancing Indebtedness (i) has a weighted average maturity (measured as of the date of such refinancing, refunding, renewal or extension) and a maturity no shorter than that of such Refinanced Indebtedness, (ii) is not secured by any property or any Lien other than that (if any) securing such Refinanced Indebtedness, (iii) is not guaranteed by or secured by any property of any guarantor or other obligor which is not also a guarantor or obligor of such Refinanced Indebtedness, (iv) if such Refinanced Indebtedness is subordinated in right of payment to the Obligations, is subordinated in right of payment to the Obligations on terms no less favorable to the Lenders than those contained in the documentation governing such Refinanced Indebtedness, (v) does not have covenants, events of default or other material terms, taken as a whole, that are less favorable to the Loans Parties than those of the Refinanced Indebtedness and (vi) has an interest rate not exceeding the then-applicable market interest rate.
“Permitted Sale and Leaseback Transactions” means (a)(i) any Sale and Leaseback Transaction of the Company’s administrative headquarters facility in The Woodlands, Texas or 


    









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


    









“Qualified Securitization Financing” means the securitization of accounts receivables or other working capital assets of the Company or any of its Subsidiaries on customary market terms (including, without limitation, Standard Securitization Undertakings and a Receivables Repurchase Obligation) as determined in good faith by the Company to be in the aggregate commercially fair and reasonable to the Company and its Subsidiaries taken as a whole.
“Receivable(s)” means and includes all of the Company’s and its consolidated Subsidiaries’ presently existing and hereafter arising or acquired accounts, accounts receivable, and all present and future rights of the Company or its Subsidiaries, as applicable, to payment for goods sold or leased or for services rendered (except those evidenced by instruments or chattel paper), whether or not they have been earned by performance, and all rights in any merchandise or goods which any of the same may represent, and all rights, title, security and guaranties with respect to each of the foregoing, including, without limitation, any right of stoppage in transit.
“Receivables Repurchase Obligation” means any obligation of a seller of receivables in a Qualified Securitization Financing to repurchase receivables arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
“Recipient” means the Administrative Agent or any Lender, as applicable.
“Register” has the meaning specified in Section 10.06(c).
“Regulation T” means Regulation T of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by and to brokers and dealers of securities for the purpose of purchasing or carrying margin stock (as defined therein).
“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by banks, non-banks and non-broker lenders for the purpose of purchasing or carrying Margin Stock applicable to member banks of the Federal Reserve System.
“Regulation X” means Regulation X of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by foreign lenders for the purpose of purchasing or carrying margin stock (as defined therein).
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.


    









“Release” means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration into the indoor or outdoor environment, including the movement of Contaminants through or in the air, soil, surface water or groundwater.
“Reportable Event” means a reportable event as defined in Section 4043 of ERISA and the regulations issued under such section, with respect to a Plan, excluding, however, such events as to which the PBGC by regulation or otherwise waived the requirement of Section 4043(a) of ERISA that it be notified within thirty (30) days after such event occurs, provided, however, that a failure to meet the minimum funding standards of Section 412 of the Code and of Section 302 of ERISA shall be a Reportable Event regardless of the issuance of any such waiver of the notice requirement in accordance with either Section 4043(a) of ERISA or Section 412(d) of the Code.
“Required Lenders” means, at any time, Lenders having Applicable Percentages representing more than 50% of the Total Outstandings of all Lenders.  The Applicable Percentages of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
“Requirements of Law” means, as to any Person, the charter and by-laws or other organizational or governing documents of such Person, and any law, rule or regulation, or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject including, without limitation, the Securities Act of 1933, the Securities Exchange Act of 1934, Regulations T, U and X, ERISA, the Fair Labor Standards Act, the Worker Adjustment and Retraining Notification Act, Americans with Disabilities Act of 1990, and any certificate of occupancy, zoning ordinance, building, environmental or land use requirement or permit or environmental, labor, employment, occupational safety or health law, rule or regulation, including Environmental, Health or Safety Requirements of Law.
“Responsible Officer” means a Managing Director of the Company, or such other Person as authorized by a Managing Director, acting singly; solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01, the secretary or any assistant secretary of a Loan Party; and, solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent.  Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restricted Payment” means (a) any dividend or other distribution, direct or indirect, on account of any Equity Interests of the Company or any of its Subsidiaries now or hereafter outstanding, except a dividend payable solely in such Person’s Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to purchase such Capital Stock, (b) any redemption, retirement, purchase or other acquisition for value, direct or indirect, of any Equity Interests of the Company or any of its Subsidiaries now or hereafter outstanding, other than in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary of the Company) of 


    









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


    









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


    









“Substantial Portion” means, with respect to the consolidated assets of the Company and its Subsidiaries, assets which (a) represent more than 10% of the consolidated assets of the Company and its Subsidiaries as would be shown in the consolidated financial statements of the Company and its Subsidiaries as at the beginning of the twelve-month period ending with the month in which such determination is made, or (b) are responsible for more than 10% of the consolidated net sales or of the consolidated net income of the Company and its Subsidiaries as reflected in the financial statements referred to in clause (a) above.
“Supplement” is defined in Section 6.13(a).
“Swap Obligations” means with respect to any Guarantor any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Termination Event” means (a) a Reportable Event with respect to any Benefit Plan; (b) the withdrawal of the Company or any member of the Controlled Group from a Benefit Plan during a plan year in which the Company or such Controlled Group member was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or the cessation of operations which results in the termination of employment of twenty percent (20%) of Benefit Plan participants who are employees of the Company or any member of the Controlled Group; (c) the imposition of an obligation on the Company or any member of the Controlled Group under Section 4041 of ERISA to provide affected parties written notice of intent to terminate a Benefit Plan in a distress termination described in Section 4041(c) of ERISA; (d) the institution by the PBGC or any similar foreign governmental authority of proceedings to terminate a Benefit Plan or Foreign Pension Plan; (e) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Benefit Plan; (f) that a foreign governmental authority shall appoint or institute proceedings to appoint a trustee to administer any Foreign Pension Plan in place of the existing administrator, or (g) the partial or complete withdrawal of the Company or any member of the Controlled Group from a Multiemployer Plan or Foreign Pension Plan.
“Threshold Amount” means an amount equal to the lesser of (a) $75,000,000 and (b) the equivalent threshold amount set forth in the Note Purchase Agreements (or any related document thereto).
“Total Outstandings” means the aggregate Outstanding Amount of all Loans.
“Transaction” means the Shaw Acquisition, the payment of fees and expenses in connection therewith, any issuance by the Company of its common equity to consummate the Transaction or refinance any debt issued to consummate the Transaction, and any combination of the issuance and placement of the NPA Notes or amendment of the 2012 Note Purchase Agreement, the entering into and funding of the Existing 2012 Term Loan Credit Agreement, the entering into and funding of the Existing 2013 Revolving Credit Agreement, the entering into and funding of the Existing 2015 


    









Revolving Credit Agreement and the entering into and funding under the credit facility established under this Agreement.
“Transaction Agreement” means that certain transaction agreement dated as of July 30, 2012 by and among the Company, Crystal Merger Subsidiary Inc. and The Shaw Group Inc.
“Transaction Facilities” means the Facility, the Existing 2013 Revolving Credit Agreement, the Existing 2015 Revolving Credit Agreement and the issuance of the NPA Notes pursuant to the Note Purchase Agreements.
“Type” means, with respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.
“United States” and “U.S.” mean the United States of America.
“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii)(B)(III).
“Withholding Agent” means any Loan Party and the Administrative Agent.
“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
“2012 Note Purchase Agreement” means that certain Note Purchase and Guarantee Agreement dated as of December 27, 2012, among the Initial Borrower, the Company and the institutional investors named therein, as amended, restated, amended and restated, supplemented or otherwise modified.
“2015 Note Purchase Agreement” means that certain Note Purchase and Guarantee Agreement, among the Initial Borrower, the Company and the institutional investors named therein, as amended, restated, amended and restated, supplemented or otherwise modified.
1.02    Other Interpretive Provisions.  With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a)    The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”  The word “will” shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified 


    









(subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(b)    In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”
(c)    Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
1.03    Accounting Terms.  Except as provided to the contrary herein, all accounting terms used herein shall be interpreted and all accounting determinations hereunder shall be made in accordance with Agreement Accounting Principles.  If any changes in generally accepted accounting principles are hereafter required or permitted and are adopted by the Company or any of its Subsidiaries with the agreement of its independent certified public accountants and such changes result in a change in the method of calculation of any of the financial covenants, tests, restrictions or standards herein or in the related definitions or terms used therein (“Accounting Changes”), the parties hereto agree, at the Company’s request, to enter into negotiations, in good faith, in order to amend such provisions in a credit neutral manner so as to reflect equitably such changes with the desired result that the criteria for evaluating the Company’s and its Subsidiaries’ financial condition shall be the same after such changes as if such changes had not been made; provided, however, until such provisions are amended in a manner reasonably satisfactory to the Administrative Agent and the Required Lenders, no Accounting Change shall be given effect in such calculations and all financial statements and reports required to be delivered hereunder shall be prepared in accordance with Agreement Accounting Principles without taking into account such Accounting Changes.  In the event such amendment is entered into, all references in this Agreement to Agreement Accounting Principles shall mean generally accepted accounting principles as of the date of such amendment.  Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Accounting Standards Codification 825-10-25 (previously referred to as Statement of Financial Accounting Standards 159) (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or 


    









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


    









Borrowing of, conversion to or continuation of Eurodollar Rate Loans and (ii) on the requested date of any Borrowing of Base Rate Loans.  Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $4,000,000 or a whole multiple of $1,000,000 in excess thereof.  Each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof.  Each Borrowing/Election Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto, and (vi) the Borrower.  If the Borrower fails to specify a Type of Loan in a Borrowing/Election Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans.  Any automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans.  If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Borrowing/Election Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. 
(b)    Following receipt of a Borrowing/Election Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the Loans, and if no timely notice of a conversion or continuation is provided by the Company, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans, as described in the preceding subsection.  In the case of a Borrowing, each Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 12:00 noon on the Business Day specified in the applicable Borrowing/Election Notice.  Upon satisfaction of the applicable conditions set forth in Section 4.01, the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to the Administrative Agent by the Borrower.
(c)    Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan.  During the existence of a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without the consent of the Required Lenders.
(d)    The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate.  At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.


    









(e)    After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than ten Interest Periods in effect with respect to the Facility.
2.03    Prepayments.
(a)    Optional.  The Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Loans in whole or in part without premium or penalty; provided that (i) such notice must be in a form reasonably acceptable to the Administrative Agent and be received by the Administrative Agent (A) three (3) Business Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding.  Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans.  The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment.  If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05.  Subject to Section 2.13, each such prepayment shall be applied to the Loans of the Lenders in accordance with their respective Applicable Percentages. Borrowings that are prepaid may not be reborrowed.  
(b)    Mandatory.  
(i)    If the Company or any of its Subsidiaries Disposes of any property in accordance with and permitted by Section 7.02(f) which results in the realization by such Person of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clause (b)(iv) below).
(ii)    Upon the incurrence or issuance by the Company or any of its Subsidiaries of any unsecured Indebtedness and/or Indebtedness that is junior to the Indebtedness incurred hereunder, in each case pursuant to a capital markets transaction or any substitutions thereof, after the Amendment No. 3 Closing Date, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Company or such Subsidiary (such prepayments to be applied as set forth in clause (b)(iv) below).
(iii)    Upon the sale or issuance by the Company or any of its Subsidiaries of any of its Capital Stock after the Amendment No. 3 Closing Date (other than any sale or issuance of Capital Stock in connection with employee benefit arrangements), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds 


    









received therefrom immediately upon receipt thereof by the Company or such Subsidiary (such prepayments to be applied as set forth in clause (b)(iv) below).
(iv)    Each prepayment pursuant to the foregoing provisions of this Section 2.03(b) shall be applied (x) in the case of an at-the-market (ATM) offering pursuant to clause (b)(iii) above, on the last day of each March, June, September and December and (y) in all other cases, promptly (but in any event within 30 days upon such receipt of proceeds), and on a pro rata basis based on outstanding balances under each of this Agreement, the Existing 2013 Revolving Credit Agreement, the Existing 2015 Revolving Credit Agreement and the Note Purchase Agreements, in each case, as of the last day of the fiscal quarter immediately preceding such Disposition or incurrence of Indebtedness or issuance of Capital Stock, as applicable, to prepay (A) Loans hereunder, on the one hand, and (B) certain outstanding amounts owing under the NPA Notes, on the other hand, in each case, it being agreed and understood that any portion of such proceeds offered to, but declined by, the holders of the NPA Notes (after giving effect to all offers of such proceeds to the other holders of the NPA Notes) shall be used to prepay Loans hereunder.
2.04    Reduction of Commitments.  The Aggregate Commitments shall be automatically and permanently reduced to zero on the Closing Date.  
2.05    Repayment of Loans.  The Borrower shall repay to the Administrative Agent for the ratable account of the Lenders the principal amount of the Loans in consecutive quarterly installments equal to $18,750,000.  The first such installment shall be paid on or before June 30, 2017, and the remaining installments shall be paid on or before the last day of each March, June, September and December thereafter; provided that if any such payment would fall on a day other than a Business Day, the payment shall be made on the immediately preceding Business Day.  The final installment shall be payable on the Maturity Date and shall be equal to the aggregate Outstanding Amount of the Loans on the Maturity Date.
2.06    Interest.  
(a)    Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.
(b)    During the occurrence and continuance of an Event of Default, upon the request of the Required Lenders, the Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws; provided that during the continuation of an Event of Default under Section 8.01(a)(i) such interest rate shall be automatically applicable without any action of the Required Lenders.
(c)    Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein.  Interest hereunder shall 


    









be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.  Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
2.07    Fees. 
(a)    The Company shall pay to each Arranger and the Administrative Agent for their own respective accounts, in Dollars, fees in the amounts and at the times specified in the Fee Letter.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
(b)    The Company and the Borrower shall pay to the Lenders, in Dollars, such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
2.08    Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.  
(a)    All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Eurodollar Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year).  Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.10(a), bear interest for one day.  Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
(b)    If, as a result of any restatement of or other adjustment to the financial statements of the Company or for any other reason, the Company or the Lenders determine that (i) the Leverage Ratio as calculated by the Company as of any applicable date was inaccurate and (ii) a proper calculation of the Leverage Ratio would have resulted in higher pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically and without further action by the Administrative Agent or any Lender), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period.  This paragraph shall not limit the rights of the Administrative Agent or any Lender, as the case may be, under Section 2.06(b) or under Article VIII.  The Company’s and the Borrower’s obligations under this paragraph shall survive the termination of the Aggregate Commitments and the repayment of all other Obligations hereunder.
2.09    Evidence of Debt.  The Loans made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business.  The accounts or records maintained by the Administrative Agent and each 


    









Lender shall be conclusive absent manifest error of the amount of the Loans made by the Lenders to the Borrower and the interest and payments thereon.  Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations.  In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.  Upon the request of any Lender to the Borrower made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans to the Borrower in addition to such accounts or records.  Each Lender may attach schedules to a Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
2.10    Payments Generally; Administrative Agent’s Clawback.
(a)    General.  All payments to be made by the Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein.  Without limiting the generality of the foregoing, the Administrative Agent may require that any payments due under this Agreement be made in the United States.  The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative Agent after 2:00 p.m. shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.  If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(b)    (1)    Funding by Lenders; Presumption by Administrative Agent.  Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 11:00 a.m. on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking 


    









industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans.  If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period.  If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing.  Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(i)    Payments by Borrower; Presumptions by Administrative Agent.  Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due.  In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to the date of payment to the Administrative Agent, at the interest rate applicable to Base Rate Loans.
A notice of the Administrative Agent to any Lender or Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.
(c)    Failure to Satisfy Conditions Precedent.  If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender to the Borrower as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(d)    Obligations of Lenders Several.  The obligations of the Lenders hereunder to make Loans and to make payments pursuant to Section 10.04(c) are several and not joint.  The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.04(c).
(e)    Funding Source.  Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.


    









2.11    Sharing of Payments by Lenders.  If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them, provided that:
(i)    if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii)    the provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) any payment of consideration for executing any amendment, waiver or consent in connection with this Agreement so long as such consideration has been offered to all consenting Lenders or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than an assignment to the Company or any Affiliate thereof (as to which the provisions of this Section shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.
2.12    Incremental Loans.
(a)    Request for Incremental Loans.  Upon notice to the Administrative Agent (which shall promptly notify the Lenders), the Company (on behalf of itself and the Borrower) may, as of and from time to time after the Closing Date, request that additional term Loans (“Incremental Loans”) in an aggregate principal amount not in excess of $200,000,000.00 (the “Maximum Incremental Availability”) be made under this Agreement; provided that to the extent any Incremental Loan is made on the Closing Date (each such loan, a “Closing-Date Incremental Loan”), the Maximum Incremental Availability will be reduced by the aggregate principal amount of such Closing-Date Incremental Loans; provided, further, that any such request shall be in a minimum amount of $50,000,000 and in increments of $5,000,000 in excess thereof (or, if less, the entire remaining unused Maximum Incremental Availability).  The Borrower may make a maximum of one such request each calendar year.  At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested 


    









to respond (which shall in no event be less than ten (10) Business Days from the date of delivery of such notice to the Lenders).
(b)    Lender Elections to Provide Incremental Loan.  In the event of a request by the Borrower pursuant to subsection (a) above, each of the Lenders shall be given the opportunity to participate in the requested Borrowing.  No Lender shall have any obligation to make any Incremental Loans.  Each Lender shall notify the Administrative Agent within the time period specified by the Borrower pursuant to paragraph (a) above of the maximum amount of Incremental Loans it is willing to lend in connection with such request by the Borrower (such maximum amount, its “Maximum Accepted Incremental Participation,” and any such notice to the Administrative Agent being herein a “Incremental Loan Notice”).  Any Lender not responding within such time period shall be deemed to have declined to provide such requested Incremental Loans.
(c)    Notification by Administrative Agent; Additional Lenders.  The Administrative Agent shall notify the Company and each Lender of the Lenders’ responses to each request made hereunder.  In the event that the sum of all Maximum Accepted Incremental Participations set forth in such Incremental Loan Notices is less than the amount requested by the Company, not later than three (3) Business Days prior to the proposed effective date the Company may notify the Administrative Agent of any Eligible Assignee that shall have agreed to become a “Lender” party hereto (a “Proposed New Lender”) in connection with such request for Incremental Loans pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel.  Any Proposed New Lender shall be consented to by the Administrative Agent (which consent shall not be unreasonably withheld).  If the Company shall not have arranged any Proposed New Lender(s) to commit to the shortfall from the Incremental Loan Notices, then the Company shall be deemed to have reduced the amount of its requested Incremental Loans to the aggregate amount set forth in the Incremental Loan Notices.  In the event that the sum of all Maximum Accepted Incremental Participations set forth in such Incremental Loan Notices exceeds the amount requested by the Company, the Administrative Agent and each Arranger shall have the right, in consultation with the Company, to allocate the amount of Incremental Loans necessary to meet the Company’s requested amount of Incremental Loans.  
(d)    Effective Date and Allocations.  If Incremental Loans are provided in accordance with this Section, the Administrative Agent and the Company shall determine the proposed date of borrowing of such Incremental Loans (the “Incremental Effective Date”) and the final allocation of such Incremental Loans.  The Administrative Agent shall promptly notify the Borrower and the Lenders of the amount of each Lender’s and each Proposed New Lender’s respective Incremental Loans and the Incremental Effective Date.
(e)    Conditions to Effectiveness of Incremental Loans.  As a condition precedent to the making of such Incremental Loans, the Borrower shall deliver to the Administrative Agent (i) a consent and reaffirmation certificate of each Loan Party dated as of the Incremental Effective Date signed by a Responsible Officer of such Loan Party, (ii) in the case of the Company, a certification that, before and after giving effect to such Incremental Loans, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Incremental Effective Date, except to the extent that such representations and 


    









warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, (B) both before and after giving effect to such Incremental Loans, no Default exists, and (C) before giving effect to such Incremental Loans, the Leverage Ratio is less than 3.00 to 1.00 (accompanied by supporting evidence reasonably satisfactory to the Administrative Agent), and (iii) if requested by the Administrative Agent, supplemental opinions from counsel for the Borrower in form and substance reasonably satisfactory to the Administrative Agent.  The Borrower shall prepay any Loans outstanding on the Incremental Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Commitments under this Section.  If any fee shall be charged by the Lenders in connection with any such Incremental Loans, such fee shall be in accordance with then-prevailing market conditions, which market conditions shall have been reasonably documented by the Administrative Agent to the Company.
(f)    Conflicting Provisions.  This Section shall supersede any provisions in Sections 2.11 or 10.01 to the contrary.
2.13    Defaulting Lenders.
(a)    Adjustments.  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i)    Waivers and Amendments.  Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and Section 10.01.
(ii)    Defaulting Lender Waterfall.  Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.08 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, as the Borrower may request (so long as no Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such 


    









Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 4.01 were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are held by the Lenders pro rata in accordance with the Commitments or the Applicable Percentages.  Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this Section 2.13(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(b)    Defaulting Lender Cure.  If the Borrower and the Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Company while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
ARTICLE III     
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01    Taxes.
(a)    Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.  
(i)    Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Laws.  If any applicable Laws (as determined in the good faith discretion of an applicable Withholding Agent) require the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding, upon the basis of the information and documentation to be delivered pursuant to subsection (e) below.
(ii)    If an applicable Withholding Agent shall be required by the Code to withhold or deduct any Taxes, including both United States Federal backup withholding and withholding taxes, from any payment, then (A) the applicable Withholding Agent shall withhold or make such deductions as are determined by the applicable Withholding Agent 


    









to be required based upon the information and documentation it has received pursuant to subsection (e) below, (B) the applicable Withholding Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.
(iii)    If an applicable Withholding Agent shall be required by any applicable Laws other than the Code to withhold or deduct any Taxes from any payment, then (A) the applicable Withholding Agent, as required by such Laws, shall withhold or make such deductions as are determined by it to be required based upon the information and documentation it has received pursuant to subsection (e) below, (B) the applicable Withholding Agent, to the extent required by such Laws, shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with such Laws, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Withholding Agent shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.
(b)    Payment of Other Taxes by the Loan Parties.  Without limiting the provisions of subsection (a) above, the Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c)    Tax Indemnifications.  (1)  Each of the Loan Parties shall, and does hereby, jointly and severally indemnify each Recipient, and shall make payment in respect thereof within thirty (30) days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.  Each of the Loan Parties shall, and does hereby, jointly and severally indemnify the Administrative Agent, and shall make payment in respect thereof within thirty (30) days after demand therefor, for any amount which a Lender for any reason fails to pay indefeasibly to the Administrative Agent as required pursuant to Section 3.01(c)(ii) below.


    









(i)    Each Lender shall, and does hereby, severally indemnify, and shall make payment in respect thereof within thirty (30) after demand therefor, (x) the Administrative Agent against any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Party to do so), (y) the Administrative Agent and the Loan Party, as applicable, against any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.06(d) relating to the maintenance of a Participant Register and (z) the Administrative Agent and the Loan Party, as applicable, against any Excluded Taxes attributable to such Lender that are payable or paid by the Administrative Agent or a Loan Party in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this clause (ii).
(d)    Evidence of Payments.  Upon request by the Borrower or the Administrative Agent, as the case may be, after any payment of Taxes by any Loan Party or by the Administrative Agent to a Governmental Authority as provided in this Section 3.01, the Borrower shall as soon as practicable deliver to the Administrative Agent or the Administrative Agent shall as soon as practicable deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.
(e)    Status of Lenders; Tax Documentation.  (1)  Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law or the taxing authorities of a jurisdiction pursuant to such applicable law or reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation either (A) set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) below or (B) required by applicable law other than the Code or the taxing authorities of the jurisdiction pursuant to such applicable law to comply with the requirements for exemption or reduction of withholding tax in that jurisdiction) shall not be required if in the Lender’s reasonable judgment such completion, execution or 


    









submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(i)    Without limiting the generality of the foregoing,
(A)    any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals (or copies sent by fax or email and meeting IRS requirements) of IRS Form W-9 (or any successor form) certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B)    any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of originals (or copies sent by fax or email and meeting IRS requirements) as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(I)    in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals (or copies sent by fax or email and meeting IRS requirements) of IRS Form W-8BEN (or any successor form) or  W-8BEN-E (or any successor form), as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any successor form) or W-8BEN-E (or any successor form), as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II)    executed originals (or copies sent by fax or email and meeting IRS requirements) of IRS Form W-8ECI (or any successor form);
(III)    in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals (or copies sent by fax or email and 


    









meeting IRS requirements) of IRS Form W-8BEN (or any successor form) or W-8BEN-E (or any successor form), as applicable; or
(IV)    to the extent a Foreign Lender is not the beneficial owner, executed originals (or copies sent by fax or email and meeting IRS requirements) of IRS Form W-8IMY (or any successor form), accompanied by IRS Form W-8ECI (or any successor form), IRS Form W-8BEN (or any successor form), IRS Form W-8BEN-E (or any successor form), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9 (or any successor form), and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C)    any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of originals (or copies sent by fax or email and meeting IRS requirements) as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals (or copies sent by fax or email and meeting IRS requirements) of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D)    if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.


    









(ii)    Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(f)    Treatment of Certain Refunds.  Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the account of such Lender, as the case may be.  If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 3.01, it shall pay to such Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by a Loan Party under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that each Loan Party, upon the request of the Recipient, agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this subsection, in no event will the applicable Recipient be required to pay any amount to such Loan Party pursuant to this subsection the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.  This subsection shall not be construed to require any Recipient to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Loan Party or any other Person.
(g)    Survival.  Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.
3.02    Illegality.  If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the applicable interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (a) any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans, shall be suspended, and (b) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar 


    









Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, (x) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal  for such Lender to determine or charge interest rates based upon the Eurodollar Rate.  Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
3.03    Inability to Determine Rates.  If in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof, (a)(i) the Administrative Agent determines that Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, or (ii) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan (in each case with respect to clause (a) above, “Impacted Loans”), or (b) the Administrative Agent or the affected Lenders determine that for any reason the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurodollar Rate Loan, the Administrative Agent will promptly so notify the Borrower and each Lender.  Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate shall be suspended (to the extent of the affected Eurodollar Rate Loans or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the affected Lenders) revokes such notice.  Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.
Notwithstanding the foregoing, if the Administrative Agent has made the determination described in this section, the Administrative Agent, in consultation with the Borrower and the Required Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (a) of the first sentence of this Section, (2) the affected Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost 


    









to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.
3.04    Increased Costs; Reserves on Eurodollar Rate Loans. 
(a)    Increased Costs Generally.  If any Change in Law shall:
(i)    impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement contemplated by Section 3.04(e), other than as set forth below);
(ii)    subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii)    impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such Lender or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.
(b)    Capital Requirements.  If any Lender determines that any Change in Law affecting such Lender or any Lending Office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.


    









(c)    Certificates for Reimbursement.  A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to the Borrower shall be conclusive absent manifest error.  The Borrower shall pay such Lender the amount shown as due on any such certificate within fifteen (15) days after receipt thereof.
(d)    Delay in Requests.  Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute a waiver of such Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than six months prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof).
(e)    Additional Reserve Requirements.  The Borrower shall pay to each Lender, as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Eurodollar Rate Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable on such Loan, provided that the Borrower shall have received at least fifteen (15) days’ prior notice (with a copy to the Administrative Agent) of such additional costs from such Lender.  If a Lender fails to give notice fifteen (15) days prior to the relevant Interest Payment Date, such additional costs shall be due and payable fifteen (15) days from receipt of such notice.
3.05    Compensation for Losses.  Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:  
(a)    any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b)    any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower; or
(c)    any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 10.13;
including any foreign exchange losses and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the 


    









deposits from which such funds were obtained or from the performance of any foreign exchange contract.  The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Base Rate used in determining the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.
3.06    Mitigation Obligations; Replacement of Lenders.
(a)    Designation of a Different Lending Office.  If any Lender requests compensation under Section 3.04, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if such Lender gives a notice pursuant to Section 3.02, then at the request of the Borrower such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b)    Replacement of Lenders.  If any Lender requests compensation under Section 3.04, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 3.06(a), the Borrower may replace such Lender in accordance with Section 10.13.
3.07    Survival.  All obligations of the Loan Parties under this Article III shall survive termination of the Aggregate Commitments, repayment of all other Obligations hereunder, and resignation of the Administrative Agent.
ARTICLE IV     
CONDITIONS PRECEDENT
4.01    Conditions of Initial Advance.  The obligation of each Lender to make its Loans on the Closing Date hereunder is subject to satisfaction of the following conditions precedent:
(a)    The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:


    









(i)    executed counterparts of this Agreement and the Subsidiary Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii)    Notes executed by the Borrower in favor of each Lender requesting Notes;
(iii)    such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Company and the Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv)    such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Company and the Borrower is duly organized or formed, is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to be so qualified could not reasonably be expected to have a Material Adverse Effect;
(v)    written opinions of the Chief Legal Officer of the Borrower, of the Company’s Dutch counsel, and of the Borrower’s outside counsels, addressed to the Administrative Agent and the Lenders, in substantially the forms attached hereto as Exhibit G-1 (for US opinions) and Exhibit G-2 (for foreign opinions), respectively;
(vi)    a certificate signed by a Responsible Officer of the Company certifying that (A) the representations and warranties of the Borrower contained in Article V are true and correct in all material respects (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, in which case it shall be true and correct in all respects) on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date; (B) on and as of the Closing Date, no Default exists, or would result from the making of the Loans hereunder; and (C) all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party have been obtained, and such consents, licenses and approvals are in full force and effect; 
(vii)    the Administrative Agent shall have received a Borrowing/Election Notice in accordance with the requirements hereof; 
(viii)    evidence that a payment of $275,000,000 shall be made, or shall have been made, to the outstanding principal amount of loans under the Existing 2012 Term Loan Credit Agreement; and
(ix)    such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.


    









(b)    Any fees required to be paid on or before the Closing Date shall have been paid.
(c)    The Loan Parties shall have provided the documentation and other information to the Administrative Agent and the Lenders that are required under applicable “know-your-customer” rules and regulations, including the Act, and requested by the Administrative Agent or any Lender, at least five Business Days prior to the Closing Date.
(d)    Unless waived by the Administrative Agent, the Company shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date.
Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
ARTICLE V     
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants as follows to each Lender and the Administrative Agent on and as of the Closing Date, each other day of the making of a Borrowing and each other date on which the representations and warranties in this Article are required to be made pursuant to the terms of this Agreement or any other Loan Document:
5.01    Organization; Corporate Powers.  The Company and each of its Subsidiaries (a) is a corporation, limited liability company or partnership that is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) is duly qualified to do business as a foreign entity and is in good standing under the laws of each jurisdiction in which failure to be so qualified and in good standing could not reasonably be expected to have a Material Adverse Effect, and (c) has all requisite power and authority to own, operate and encumber its property and to conduct its business as presently conducted and as proposed to be conducted.
5.02    Authority, Execution and Delivery; Loan Documents.
(a)    Power and Authority.  Each of the Loan Parties has the requisite power and authority (i) to execute, deliver and perform each of the Loan Documents which are to be executed by it as required by this Agreement and the other Loan Documents and (ii) to file the Loan Documents which must be filed by it as required by this Agreement, the other Loan Documents or otherwise with any Governmental Authority.
(b)    Execution and Delivery.  The execution, delivery, performance and filing, as the case may be, of each of the Loan Documents as required by this Agreement or otherwise and to which any Loan Party is party, and the consummation of the transactions contemplated thereby, have been 


    









duly approved by the respective boards of directors and, if necessary, the shareholders of the applicable Loan Parties, and such approvals have not been rescinded.
(c)    Loan Documents.  (i) Each of the Loan Documents to which the Company or any of its Subsidiaries is a party has been duly executed, delivered or filed, as the case may be, by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms (except as enforceability may be limited by bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally), is in full force and effect and (ii) no material term or condition thereof has been amended, modified or waived from the terms and conditions contained in the Loan Documents delivered to the Administrative Agent pursuant to Section 4.01 without the prior written consent of the Required Lenders, and the Company and its Subsidiaries have, and, to the best of the Company’s and its Subsidiaries’ knowledge, all other parties thereto have, performed and complied with all the terms, provisions, agreements and conditions set forth therein and required to be performed or complied with by such parties, and no unmatured default, default or breach of any covenant by any such party exists thereunder.
5.03    No Conflict; Governmental Consents.  The execution, delivery and performance of each of the Loan Documents to which each of the Loan Parties is a party do not and will not (a) conflict with the certificate or articles of incorporation or by-laws of such Loan Party, (b) constitute a tortious interference with any Contractual Obligation of any Person or conflict with, result in a breach of or constitute (with or without notice or lapse of time or both) a default under any Requirement of Law or Contractual Obligation of any such Loan Party, or require termination of any Contractual Obligation, (c) result in or require the creation or imposition of any Lien whatsoever upon any of the property or assets of the Company or any of its Subsidiaries, other than Liens permitted or created by the Loan Documents, or (d) require any approval of any Loan Party’s Board of Directors or shareholders except such as have been obtained.  The execution, delivery and performance of each of the Loan Documents to which the Company or any of its Subsidiaries is a party do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by any Governmental Authority, except filings, consents or notices which have been made, obtained or given, or which, if not made, obtained or given, individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect.
5.04    No Material Adverse Change.  Since December 31, 2014, there has occurred no change in the business, properties, condition (financial or otherwise), performance or results of operations of the Company, any other Borrower or the Company and its Subsidiaries taken as a whole, or any other event which has had or could reasonably be expected to have a Material Adverse Effect.
5.05    Financial Statements. 
(a)    Pro Forma Financials.  The combined pro forma balance sheet, income statements and statements of cash flow of the Company and its Subsidiaries, copies of which have been delivered to the Administrative Agent on or before the Closing Date, present on a pro forma basis the financial condition of the Company and such Subsidiaries as of such date, and demonstrate that the Company and its Subsidiaries can repay their debts and satisfy their other obligations as and when due, and can comply with the requirements of this Agreement.  The projections and assumptions expressed 


    









in the pro forma financials referenced in this Section 5.05(a) were prepared in good faith and represent management’s opinion based on the information available to the Company at the time so furnished and, since the preparation thereof, there has occurred no change in the business, financial condition, operations, or prospects of the Company or any of its Subsidiaries, or the Company and its Subsidiaries taken as a whole, which has had or could reasonably be expected to have a Material Adverse Effect.
(b)    Audited Financial Statements.  Complete and accurate copies of the audited financial statements and the audit reports related thereto of the Company and its consolidated Subsidiaries as at December 31, 2014 have been delivered to the Administrative Agent and such financial statements were prepared in accordance with generally accepted accounting principles in effect on the date such statements were prepared and fairly present the consolidated financial condition and operations of the Company and its Subsidiaries at such date and the consolidated results of their operations for the period then ended.
(c)    Interim Financial Statements.  Complete and accurate copies of the unaudited financial statements of the Company and its consolidated Subsidiaries as at March 31, 2015 have been delivered to the Administrative Agent and such financial statements were prepared in accordance with generally accepted accounting principles in effect on the date such statements were prepared and fairly present the consolidated financial condition and operations of the Company and its Subsidiaries at such date and the consolidated results of their operations for the period then ended, subject to normal year-end audit adjustments.
5.06    Payment of Taxes.  All material tax returns and reports of the Company and its Subsidiaries required to be filed have been timely (taking into account any applicable extensions) filed, and all material taxes, assessments, fees and other governmental charges thereupon and upon their respective property, assets, income and franchises which are shown in such returns or reports to be due and payable have been paid except those items which are being contested in good faith and have been reserved for in accordance with Agreement Accounting Principles.  The Company has no knowledge of any proposed tax assessment against it or any of its Subsidiaries that, if successfully imposed, will have a Material Adverse Effect.
5.07    Litigation; Loss Contingencies and Violations.  Other than as identified on Schedule 5.07, there is no action, suit, proceeding, arbitration or, to the Company’s knowledge, investigation before or by any Governmental Authority or private arbitrator pending or, to the Company’s knowledge, threatened against or affecting the Company or any of its Subsidiaries or any property of any of them, including, without limitation, any such actions, suits, proceedings, arbitrations and investigations disclosed in the Company’s SEC Forms 10-K and 10-Q (the “Disclosed Litigation”), which (a) challenges the validity or the enforceability of any material provision of the Loan Documents or (b) has or could reasonably be expected to have a Material Adverse Effect.  There is no material loss contingency within the meaning of Agreement Accounting Principles which has not been reflected in the consolidated financial statements of the Company prepared and delivered pursuant to Section 6.01(a) for the fiscal period during which such material loss contingency was incurred.  Neither the Company nor any of its Subsidiaries is (i) in violation of any applicable Requirements of Law which violation could reasonably be expected to have a 


    









Material Adverse Effect, or (ii) subject to or in default with respect to any final judgment, writ, injunction, restraining order or order of any nature, decree, rule or regulation of any court or Governmental Authority which could reasonably be expected to have a Material Adverse Effect.
5.08    Subsidiaries.  As of the date hereof, Schedule 5.08 to this Agreement (a) contains a description of the corporate structure of the Company, its Subsidiaries and any other Person in which the Company or any of its Subsidiaries holds an Equity Interest; and (b) accurately sets forth (i) the correct legal name, the jurisdiction of incorporation and the jurisdictions in which each of the Company and the direct and indirect Subsidiaries of the Company are qualified to transact business as a foreign corporation, (ii) the authorized, issued and outstanding shares of each class of Capital Stock of each of the Company’s Foreign Subsidiaries and the owners of such shares (both as of the Closing Date and on a fully-diluted basis), and (iii) a summary of the direct and indirect partnership, joint venture, or other Equity Interests, if any, of the Company and each of its Subsidiaries in any Person.  As of the date hereof, except as disclosed on Schedule 5.08, none of the issued and outstanding Capital Stock of the Company’s Foreign Subsidiaries is subject to any vesting, redemption, or repurchase agreement, and there are no warrants or options outstanding with respect to such Capital Stock.  The outstanding Capital Stock of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable and is not Margin Stock.
5.09    ERISA.  No Benefit Plan has incurred any material accumulated funding deficiency (as defined in Sections 302(a)(2) of ERISA and 412(a) of the Code) whether or not waived except as set forth on Schedule 5.09.  Neither the Company nor any member of the Controlled Group has incurred any material liability to the PBGC which remains outstanding other than the payment of premiums.  As of the last day of the most recent prior plan year, the market value of assets under each Benefit Plan, other than any Multiemployer Plan, was not by a material amount less than the present value of benefit liabilities thereunder (determined in accordance with the actuarial valuation assumptions described therein).  Neither the Company nor any member of the Controlled Group has (i) failed to make a required contribution or payment to a Multiemployer Plan of a material amount or (ii) incurred a material complete or partial withdrawal under Section 4203 or Section 4205 of ERISA from a Multiemployer Plan.  Neither the Company nor any member of the Controlled Group has failed to make an installment or any other payment of a material amount required under Section 412 of the Code on or before the due date for such installment or other payment.  Each Plan, Foreign Employee Benefit Plan and Non-ERISA Commitment complies in all material respects in form, and has been administered in all material respects in accordance with its terms and in accordance with all applicable laws and regulations, including but not limited to ERISA and the Code.  There have been no and there is no prohibited transaction described in Sections 406 of ERISA or 4975 of the Code with respect to any Plan for which a statutory or administrative exemption does not exist which could reasonably be expected to subject the Company or any of its Subsidiaries to material liability.  Neither the Company nor any member of the Controlled Group has taken or failed to take any action which would constitute or result in a Termination Event, which action or inaction could reasonably be expected to subject the Company or any of its Subsidiaries to material liability.  Neither the Company nor any member of the Controlled Group is subject to any material liability under, or has any potential material liability under, Section 4063, 4064, 4069, 4204 or 4212(c) of ERISA.  The present value of the aggregate liabilities to provide all of the accrued benefits under any Foreign Pension Plan do not exceed the current fair market 


    









value of the assets held in trust or other funding vehicle for such plan by a material amount except as set forth on Schedule 5.09.  With respect to any Foreign Employee Benefit Plan other than a Foreign Pension Plan, reasonable reserves have been established in accordance with prudent business practice or where required by ordinary accounting practices in the jurisdiction in which such plan is maintained.  Except as set forth on Schedule 5.09, neither the Company nor any other member of the Controlled Group has taken or failed to take any action, nor has any event occurred, with respect to any “employee benefit plan” (as defined in Section 3(3) of ERISA) which action, inaction or event could reasonably be expected to subject the Company or any of its Subsidiaries to material liability.  For purposes of this Section 5.09, “material” means any amount, noncompliance or other basis for liability which could reasonably be expected to subject the Company or any of its Subsidiaries to liability, individually or in the aggregate with each other basis for liability under this Section 5.09, in excess of $20,000,000.
5.10    Accuracy of Information.  The information, exhibits and reports furnished by or on behalf of the Company and any of its Subsidiaries to the Administrative Agent or to any Lender in connection with the negotiation of, or compliance with, the Loan Documents, the representations and warranties of the Company and its Subsidiaries contained in the Loan Documents, and all certificates and documents delivered to the Administrative Agent and the Lenders pursuant to the terms thereof, taken as a whole, do not contain as of the date furnished any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained herein or therein, in light of the circumstances under which they were made, not misleading.
5.11    Securities Activities.  Neither the Company nor any of its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock.  Margin Stock constitutes less than 25% of the value of those assets of the Company and its Subsidiaries which are subject to any limitation on sale, pledge, or other restriction hereunder.
5.12    Material Agreements.  Neither the Company nor any of its Subsidiaries is a party to any Contractual Obligation or subject to any charter or other corporate restriction which individually or in the aggregate has had or could reasonably be expected to have a Material Adverse Effect.  Neither the Company nor any of its Subsidiaries has received notice or has knowledge that (a) it is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any Contractual Obligation applicable to it, or (b) any condition exists which, with the giving of notice or the lapse of time or both, would constitute a default with respect to any such Contractual Obligation, in each case, except where such default or defaults, if any, individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect.
5.13    Compliance with Laws.  The Company and its Subsidiaries are in compliance with all Requirements of Law applicable to them and their respective businesses, in each case where the failure to so comply individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.
5.14    Assets and Properties.  The Company and each of its Subsidiaries has good and marketable title to all of its material assets and properties (tangible and intangible, real or personal) owned by it or a valid leasehold interest in all of its material leased assets (except insofar as 


    









marketability may be limited by any laws or regulations of any Governmental Authority affecting such assets), and all such assets and property are free and clear of all Liens, except Liens permitted under Section 7.03.  Substantially all of the assets and properties owned by, leased to or used by the Company and/or each such Subsidiary of the Company are in adequate operating condition and repair, ordinary wear and tear excepted.  Neither this Agreement nor any other Loan Document, nor any transaction contemplated under any such agreement, will affect any right, title or interest of the Company or such Subsidiary in and to any of such assets in a manner that could reasonably be expected to have a Material Adverse Effect.
5.15    Statutory Indebtedness Restrictions.  Neither the Company nor any of its Subsidiaries is subject to regulation under the Federal Power Act, the Investment Company Act of 1940, or any other foreign, federal or state statute or regulation which limits its ability to incur indebtedness or its ability to consummate the transactions contemplated hereby.
5.16    Insurance.  The insurance policies and programs in effect with respect to the respective properties, assets, liabilities and business of the Company and its Subsidiaries reflect coverage that is reasonably consistent with prudent industry practice.
5.17    Environmental Matters. 
(a)    Environmental Representations.  Except as disclosed on Schedule 5.17 to this Agreement:
(i)    the operations of the Company and its Subsidiaries comply in all material respects with Environmental, Health or Safety Requirements of Law;
(ii)    the Company and its Subsidiaries have all material permits, licenses or other authorizations required under Environmental, Health or Safety Requirements of Law and are in material compliance with such permits;
(iii)    neither the Company, any of its Subsidiaries nor any of their respective present property or operations, or, to the Company’s or any of its Subsidiaries’ knowledge, any of their respective past property or operations, are subject to or the subject of, any investigation known to the Company or any of its Subsidiaries, any judicial or administrative proceeding, order, judgment, decree, settlement or other agreement respecting:  (A) any material violation of Environmental, Health or Safety Requirements of Law; (B) any remedial action; or (C) any material claims or liabilities arising from the Release or threatened Release of a Contaminant into the environment;
(iv)    there is not now, nor to the Company’s or any of its Subsidiaries’ knowledge has there ever been, on or in the property of the Company or any of its Subsidiaries any landfill, waste pile, underground storage tanks, aboveground storage tanks, surface impoundment or hazardous waste storage facility of any kind, any polychlorinated biphenyls (PCBs) used in hydraulic oils, electric transformers or other equipment, or any asbestos containing material; and


    









(v)    neither the Company nor any of its Subsidiaries has any material Contingent Obligation in connection with any Release or threatened Release of a Contaminant into the environment.
(b)    Materiality.  For purposes of this Section 5.17 “material” means any noncompliance or basis for liability which could reasonably be likely to subject the Company or any of its Subsidiaries to liability, individually or in the aggregate, in excess of $20,000,000.


    









5.18    Benefits.  Each of the Company and its Subsidiaries will benefit from the financing arrangement established by this Agreement.  The Administrative Agent and the Lenders have stated and the Company acknowledges that, but for the agreement by each of the Subsidiary Guarantors to execute and deliver the Subsidiary Guaranty, the Administrative Agent and the Lenders would not have made available the credit facilities established hereby on the terms set forth herein.
5.19    Solvency.  The Company and its Subsidiaries taken as a whole are Solvent.
5.20    OFAC.  No Loan Party, nor, to the knowledge of any Loan Party, any Related Party, (a) is currently the subject of any Sanctions, (b) is located, organized or residing in any Designated Jurisdiction, or (c) is or has been (within the previous five (5) years) engaged in any transaction with any Person who is now or was then the subject of Sanctions or who is located, organized or residing in any Designated Jurisdiction.  No Loan, nor the proceeds from any Loan, has been used, directly or indirectly, to lend, contribute, provide or has otherwise made available to fund any activity or business in any Designated Jurisdiction or to fund any activity or business of any Person located, organized or residing in any Designated Jurisdiction or who is the subject of any Sanctions, or in any other manner that will result in any violation by any Person (including any Lender, any Arranger or the Administrative Agent) of Sanctions.
5.21    PATRIOT Act.  Each of the Loan Parties and their respective Subsidiaries are in compliance, in all material respects, with (a) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto and (b) the Act.
5.22    Senior Indebtedness.  The Obligations are “Designated Senior Debt”, “Senior Debt”, “Senior Indebtedness”, “Guarantor Senior Debt” or “Senior Financing” (or any comparable term) under, and as defined in, any indenture, instrument or document governing any Indebtedness of any Loan Party subordinated to the Obligations.
5.23    Anti-Corruption Laws.  The Company and its Subsidiaries have conducted their businesses in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.
5.24    Not an EEA Financial Institution.  Neither the Borrower nor any Guarantor is an EEA Financial Institution.
ARTICLE VI     
AFFIRMATIVE COVENANTS
The Company covenants and agrees that on and after the Closing Date, so long as any Lender shall have any Commitment hereunder or any Loan or other Obligation hereunder shall remain unpaid or unsatisfied (other than contingent Obligations to the extent no claim giving rise thereto has been asserted), unless the Required Lenders shall otherwise give prior written consent:


    









6.01    Financial Report.  The Company shall furnish to the Administrative Agent (for delivery to each of the Lenders):
(a)    Quarterly Reports.  As soon as practicable and in any event within forty-five (45) days after the end of each of (i) the first three quarterly periods of each of its fiscal years, the consolidated balance sheet of the Company and its Subsidiaries as at the end of such period and the related consolidated statements of income and cash flows of the Company and its Subsidiaries for such fiscal quarter and for the period from the beginning of the then-current fiscal year to the end of such fiscal quarter, certified by a Financial Officer of the Company on behalf of the Company and its Subsidiaries as fairly presenting the consolidated financial position of the Company and its Subsidiaries as at the dates indicated and the results of their operations and cash flows for the periods indicated in accordance with Agreement Accounting Principles, subject to normal year-end audit adjustments and the absence of footnotes and (ii) each quarterly period of its fiscal year, a report relating to the asbestos litigation described in Schedule 5.17, and any other Product Liability Events, for such quarter, such report being in form and substance satisfactory to the Administrative Agent and in any event describing (x) any final judgments or orders (whether monetary or non-monetary) entered against the Company or any Subsidiary and (y) any settlements for the payment of money entered into by the Company or any Subsidiary.
(b)    Annual Reports.  As soon as practicable, and in any event within ninety (90) days after the end of each fiscal year, (i) the consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal year and the related consolidated statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries for such fiscal year, and in comparative form the corresponding figures for the previous fiscal year along with consolidating schedules in form and substance sufficient to calculate the financial covenants set forth in Section 7.18 and (ii) an audit report on the consolidated financial statements (but not the consolidating financial statements or schedules) listed in clause (i) hereof of independent certified public accountants of recognized national standing, which audit report shall be unqualified and shall state that such financial statements fairly present the consolidated financial position of the Company and its Subsidiaries as at the dates indicated and the results of their operations and cash flows for the periods indicated in conformity with Agreement Accounting Principles and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards.  The deliveries made pursuant to this clause (ii) shall be accompanied by (x) any management letter prepared by the above-referenced accountants, and (y) a certificate of such accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Event of Default, or if, in the opinion of such accountants, any Default or Event of Default shall exist, stating the nature and status thereof.
(c)    Officer’s Certificate.  Together with each delivery of any financial statement (i) pursuant to clauses (i) or (ii) of Section 6.01(a), an Officer’s Certificate of the Company, substantially in the form of Exhibit E attached hereto and made a part hereof, stating that as of the date of such Officer’s Certificate no Default or Event of Default exists, or if any Default or Event of Default exists, stating the nature and status thereof and (ii) pursuant to clauses (a) and (b) of this 


    









Section 6.01, a Compliance Certificate signed by a Responsible Officer, which demonstrates compliance with the tests contained in Section 7.18, and which calculates the Applicable Rate.
(d)    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, 2016, a copy of the plan and forecast (including a projected balance sheet, income statement and a statement of cash flow) of the Company and its Subsidiaries for the upcoming three (3) fiscal years prepared in such detail as shall be reasonably satisfactory to the Administrative Agent.
6.02    Notices.  The Company shall:
(a)    Notice of Default.  Promptly upon any of the chief executive officer, chief operating officer, chief financial officer, treasurer, controller, chief legal officer or general counsel of the Company obtaining knowledge (i) of any condition or event which constitutes a Default or Event of Default, or becoming aware that any Lender or Administrative Agent has given any written notice with respect to a claimed Default or Event of Default under this Agreement, or (ii) that any Person has given any written notice to the Company or any Subsidiary of the Company or taken any other action with respect to a claimed default or event or condition of the type referred to in Section 8.01(e), or (iii) that any other development, financial or otherwise, which could reasonably be expected to have a Material Adverse Effect has occurred, the Company shall deliver to the Administrative Agent and the Lenders an Officer’s Certificate specifying (A) the nature and period of existence of any such claimed default, Default, Event of Default, condition or event, (B) the notice given or action taken by such Person in connection therewith, and (C) what action the Company has taken, is taking and proposes to take with respect thereto.
(b)    Lawsuits.
(i)    Promptly upon the Company obtaining knowledge of the institution of, or written threat of, any action, suit, proceeding, governmental investigation or arbitration, by or before any Governmental Authority, against or affecting the Company or any of its Subsidiaries or any property of the Company or any of its Subsidiaries not previously disclosed pursuant to Section 5.07, which action, suit, proceeding, governmental investigation or arbitration exposes, or in the case of multiple actions, suits, proceedings, governmental investigations or arbitrations arising out of the same general allegations or circumstances which expose, in the Company’s reasonable judgment, the Company and/or any of its Subsidiaries to liability in an amount aggregating $30,000,000 or more, give written notice thereof to the Administrative Agent and the Lenders and provide such other information as may be reasonably available to enable each Lender and the Administrative Agent and its counsel to evaluate such matters; and
(ii)    Promptly upon the Company or any of its Subsidiaries obtaining knowledge of any material adverse developments with respect to any of the Disclosed Litigation, which Disclosed Litigation exposes, in the Company’s reasonable judgment, the Company and/or any of its Subsidiaries to liability in an amount aggregating $10,000,000 or more, give written notice thereof to the Administrative Agent and the Lenders and provide such other 


    









information as may be reasonably available to enable each Lender and the Administrative Agent and its counsel to evaluate such matters; and
(iii)    In addition to the requirements set forth in Sections 6.02(b)(i) and (ii), upon request of the Administrative Agent or the Required Lenders, promptly give written notice of the status of any Disclosed Litigation or any action, suit, proceeding, governmental investigation or arbitration covered by a report delivered pursuant to clause (i) above and provide such other information as may be reasonably available to it that would not jeopardize any attorney-client privilege by disclosure to the Lenders to enable each Lender and the Administrative Agent and its counsel to evaluate such matters.
(c)    ERISA Notices.  Deliver or cause to be delivered to the Administrative Agent and the Lenders, at the Company’s expense, the following information and notices as soon as reasonably possible, and in any event:
(i)    (a) within ten (10) Business Days after the Company obtains knowledge that a Termination Event has occurred, a written statement of a Financial Officer of the Company describing such Termination Event and the action, if any, which the Company has taken, is taking or proposes to take with respect thereto, and when known, any action taken or threatened by the IRS, DOL or PBGC with respect thereto and (b) within ten (10) Business Days after any member of the Controlled Group obtains knowledge that a Termination Event has occurred which could reasonably be expected to subject the Company or any of its Subsidiaries to liability in excess of $5,000,000, a written statement of a Financial Officer or designee of the Company describing such Termination Event and the action, if any, which the member of the Controlled Group has taken, is taking or proposes to take with respect thereto, and when known, any action taken or threatened by the IRS, DOL or PBGC with respect thereto;
(ii)    within ten (10) Business Days after the filing of any funding waiver request with the IRS, a copy of such funding waiver request and thereafter all communications received by the Company or a member of the Controlled Group with respect to such request within ten (10) Business Days such communication is received; and
(iii)    within ten (10) Business Days after the Company or any member of the Controlled Group knows or has reason to know that (a) a Multiemployer Plan has been terminated, (b) the administrator or plan sponsor of a Multiemployer Plan intends to terminate a Multiemployer Plan, or (c) the PBGC has instituted or will institute proceedings under Section 4042 of ERISA to terminate a Multiemployer Plan, a notice describing such matter.
For purposes of this Section 6.01(c), the Company, any of its Subsidiaries and any member of the Controlled Group shall be deemed to know all facts known by the administrator of any Plan of which the Company or any member of the Controlled Group or such Subsidiary is the plan sponsor.


    









(d)    Other Indebtedness.  Deliver to the Administrative Agent (i) a copy of each regular report, notice or communication regarding potential or actual defaults or amortization events (including any accompanying officer’s certificate) delivered by or on behalf of the Company to the holders of Material Indebtedness pursuant to the terms of the agreements governing such Material Indebtedness, such delivery to be made at the same time and by the same means as such notice of default is delivered to such holders, and (ii) a copy of each notice or other communication received by the Company from the holders of Material Indebtedness regarding potential or actual defaults pursuant to the terms of such Material Indebtedness, such delivery to be made promptly after such notice or other communication is received by the Company or any of its Subsidiaries.
(e)    Other Reports.  Deliver or cause to be delivered to the Administrative Agent and the Lenders copies of (i) all financial statements, reports and notices, if any, sent or made available generally by the Company to their securities holders or filed with the SEC by the Company, (ii) all press releases made available generally by the Company or any of the Company’s Subsidiaries to the public concerning material developments in the business of the Company or any such Subsidiary and (iii) all notifications received from the SEC by the Company or its Subsidiaries pursuant to the Securities Exchange Act of 1934 and the rules promulgated thereunder.
(f)    Environmental Notices.  As soon as possible and in any event within ten (10) days after receipt by the Company, deliver to the Administrative Agent and the Lenders a copy of (i) any notice or claim to the effect that the Company or any of its Subsidiaries is or may be liable to any Person as a result of the Release by the Company, any of its Subsidiaries, or any other Person of any Contaminant into the environment, and (ii) any notice alleging any violation of any Environmental, Health or Safety Requirements of Law by the Company or any of its Subsidiaries if, in either case, such notice or claim relates to an event which could reasonably be expected to subject the Company and its Subsidiaries to liability individually or in the aggregate in excess of $5,000,000.
(g)    Mandatory Prepayments.  Promptly notify the Administrative Agent and the Lenders of the (i) occurrence of any Disposition of property or assets for which the Borrower is required to make a mandatory prepayment pursuant to Section 2.03(b)(i), (ii) incurrence or issuance of any Indebtedness for which the Borrower is required to make a mandatory prepayment pursuant to Section 2.03(b)(ii), and (iii) occurrence of any sale of Capital Stock for which the Borrower is required to make a mandatory prepayment pursuant to Section 2.03(b)(iii).
(h)    Notice under Note Purchase Agreements.  Promptly after the delivery thereof, deliver or provide to the Administrative Agent and the Lenders, to the extent not provided hereunder, all reports, documents and other information delivered or provided to the holders of the NPA Notes under the Note Purchase Agreements.
(i)    Other Information.  Promptly upon receiving a request therefor from the Administrative Agent (acting on its own behalf or at the request of any Lender), prepare and deliver to the Administrative Agent and the Lenders such other information with respect to the Company, any of its Subsidiaries, as from time to time may be reasonably requested by the Administrative Agent.


    









Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(e)(i) or (iii) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Company’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Company shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to the Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Company shall notify the Administrative Agent and each Lender (by facsimile or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.  The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers may, but shall not be obligated to, make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on DebtDomain, IntraLinks, Syndtrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.  The Borrower hereby agrees that  (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”  Notwithstanding the foregoing, the Borrower shall not be under any obligation to mark any Borrower Materials “PUBLIC.”


    









6.03    Existence, Etc.  The Company shall and, except as permitted pursuant to Section 7.08, shall cause each of its Subsidiaries to, at all times maintain its existence and preserve and keep, or cause to be preserved and kept, in full force and effect its rights and franchises material to its businesses.
6.04    Corporate Powers; Conduct of Business.  The Company shall, and shall cause each of its Subsidiaries to, qualify and remain qualified to do business in each jurisdiction in which the nature of its business requires it to be so qualified and where the failure to be so qualified will have or could reasonably be expected to have a Material Adverse Effect.  The Company will, and will cause each Subsidiary to, carry on and conduct its business in substantially the same manner and in substantially the same fields of enterprise as it is presently conducted.
6.05    Compliance with Laws, Etc.  The Company shall, and shall cause its Subsidiaries to, (a) comply with all Requirements of Law and all restrictive covenants affecting such Person or the business, properties, assets or operations of such Person, and (b) obtain as needed all permits necessary for its operations and maintain such permits in good standing unless failure to comply or obtain such permits could not reasonably be expected to have a Material Adverse Effect.
6.06    Payment of Taxes and Claims; Tax Consolidation.  The Company shall pay, and cause each of its Subsidiaries to pay, (a) all material taxes, assessments and other governmental charges imposed upon it or on any of its properties or assets or in respect of any of its franchises, business, income or property before any penalty or interest accrues thereon, and (b) all claims (including, without limitation, claims for labor, services, materials and supplies) for sums which have become due and payable and which by law have or may become a Lien (other than a Lien permitted by Section 7.03) upon any of the Company’s or such Subsidiary’s property or assets, prior to the time when any penalty or fine shall be incurred with respect thereto; provided, however, that no such taxes, assessments and governmental charges referred to in clause (a) above or claims referred to in clause (b) above (and interest, penalties or fines relating thereto) need be paid if being contested in good faith by appropriate proceedings diligently instituted and conducted and if such reserve or other appropriate provision, if any, as shall be required in conformity with Agreement Accounting Principles shall have been made therefor.
6.07    Insurance.  The Company shall maintain for itself and its Subsidiaries, or shall cause each of its Subsidiaries to maintain in full force and effect, insurance policies and programs, with such deductibles or self-insurance amounts as reflect coverage that is reasonably consistent with prudent industry practice as determined by the Company.
6.08    Inspection of Property; Books and Records; Discussions.  The Company shall permit and cause each of its Subsidiaries to permit, any authorized representative(s) designated by either the Administrative Agent or any Lender to visit and inspect any of the properties of the Company or any of its Subsidiaries, to examine their respective financial and accounting records and other material data relating to their respective businesses or the transactions contemplated hereby (including, without limitation, in connection with environmental compliance, hazard or liability), and to discuss their affairs, finances and accounts with their officers and independent certified public accountants, all upon reasonable notice and at such reasonable times during normal business hours, as often as may be reasonably requested (provided that an officer of the Company 


    









or any of its Subsidiaries may, if it so desires, be present at and participate in any such discussion).  The Company shall keep and maintain, and cause each of its Subsidiaries to keep and maintain, in all material respects, proper books of record and account in which entries in conformity with Agreement Accounting Principles shall be made of all dealings and transactions in relation to their respective businesses and activities.  If an Event of Default has occurred and is continuing, the Company, upon the Administrative Agent’s request, shall turn over copies of any such records to the Administrative Agent or its representatives.
6.09    ERISA Compliance.  The Company shall, and shall cause each of its Subsidiaries to, establish, maintain and operate all Plans to comply in all material respects with the provisions of ERISA and shall operate all Plans to comply in all material respects with the applicable provisions of the Code, all other applicable laws, and the regulations and interpretations thereunder and the respective requirements of the governing documents for such Plans, except for any noncompliance which, individually or in the aggregate, could not reasonably be expected to subject the Company or any of its Subsidiaries to liability, individually or in the aggregate, in excess of $50,000,000 or except as set forth on Schedule 5.09.
6.10    Maintenance of Property.  The Company shall cause all property used or useful in the conduct of its business or the business of any Subsidiary to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and shall cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section 6.10 shall prevent the Company or any of its Subsidiaries from discontinuing the operation or maintenance of any of such property if such discontinuance is, in the judgment of the Company, desirable in the conduct of its business or the business of any Subsidiary and not disadvantageous in any material respect to the Administrative Agent or the Lenders.
6.11    Environmental Compliance.  The Company and its Subsidiaries shall comply with all Environmental, Health or Safety Requirements of Law, except where noncompliance will not have or is not reasonably likely to subject the Company or any of its Subsidiaries to liability, individually or in the aggregate, in excess of $50,000,000.
6.12    Use of Proceeds.  The Borrower shall use the proceeds of the Loans to provide funds for general corporate purposes of the Company and its Subsidiaries, including, without limitation, the making of a $275,000,000 payment to the outstanding principal amount of loans under the Existing 2012 Term Loan Credit Agreement, for working capital purposes and to finance Permitted Acquisitions and the payment of fees, expenses and compensation in connection therewith.  The Company will not, nor will it permit any Subsidiary to, use any of the proceeds of the Loans to purchase or carry any Margin Stock in violation of any applicable legal and regulatory requirements including, without limitation, Regulations T, U, and X, the Securities Act of 1933 and the Securities Exchange Act of 1934 and the regulations promulgated thereunder, or to make any Acquisition, other than a Permitted Acquisition pursuant to Section 7.06.
6.13    Subsidiary Guarantors.  


    









(a)    New Subsidiaries.  The Company shall cause each Subsidiary acquired or formed after the Closing Date that is, at any time, a Material Subsidiary, and each other Subsidiary as is necessary to remain in compliance with the terms of Section 7.15, to deliver to the Administrative Agent an executed supplement to the Subsidiary Guaranty in the form of the supplement attached thereto (a “Supplement”) to become a Subsidiary Guarantor and, if requested by the Administrative Agent or delivered under any other Transaction Facility (or any Permitted Refinancing thereof), appropriate corporate resolutions, opinions and other documentation in form and substance reasonably satisfactory to the Administrative Agent, such Supplement and other documentation to be delivered to the Administrative Agent as promptly as possible upon the creation, acquisition of or capitalization thereof or if otherwise necessary to remain in compliance with Section 7.15, but in any event within thirty (30) days (or such later date as the Administrative Agent may agree) of such creation, acquisition or capitalization.
(b)    Additional Material Subsidiaries.  If any consolidated Subsidiary of the Company (other than a newly acquired or formed Subsidiary to the extent addressed in Section 6.13(a)) becomes a Material Subsidiary (other than an Excluded Foreign Subsidiary), the Company shall cause any such Material Subsidiary to deliver to the Administrative Agent an executed Supplement to become a Subsidiary Guarantor and, if requested by the Administrative Agent or delivered under any other Transaction Facility (or any Permitted Refinancing thereof), appropriate corporate resolutions, opinions and other documentation in form and substance reasonably satisfactory to the Administrative Agent in connection therewith, such Supplement and other documentation to be delivered to the Administrative Agent as promptly as possible but in any event within thirty (30) days (or such later date as the Administrative Agent may agree) following the date on which such consolidated Subsidiary became a Material Subsidiary.
(c)    Other Required Guarantors.  If at any time any Subsidiary of the Company which is not a Subsidiary Guarantor guaranties any Indebtedness of the Company other than the Indebtedness hereunder, the Company shall cause such Subsidiary to deliver to the Administrative Agent an executed Supplement to become a Subsidiary Guarantor and, if requested by the Administrative Agent or delivered under any other Transaction Facility (or any Permitted Refinancing thereof), appropriate corporate resolutions, opinions and other documentation in form and substance reasonably satisfactory to the Administrative Agent in connection therewith, such Supplement and other documentation to be delivered to the Administrative Agent concurrently with the delivery of the guaranty of such other Indebtedness.
(d)    Additional Excluded Foreign Subsidiaries.  In the event any Subsidiary otherwise required to become a Guarantor under paragraphs (a), (b) or (c) above would cause the Company adverse tax consequences if it were to become a Guarantor or is restricted from becoming a Guarantor as a result of domestic laws or otherwise, the Administrative Agent may, in its discretion, permit such Subsidiary to be treated as an Excluded Foreign Subsidiary, and, accordingly, such Subsidiary would not be required to become a Guarantor.
(e)    Joint Ventures.  Notwithstanding anything to the contrary contained in any Loan Document, (i) in the event any Subsidiary otherwise required to become a Guarantor under this Section 6.13 is a joint venture or unincorporated association, and such Subsidiary’s becoming a 


    









Subsidiary Guarantor shall be restricted by such Subsidiary’s constitutive documents, the Obligations guaranteed by such Subsidiary shall not be required to exceed the amount that may be so guaranteed pursuant to such constitutive documents, (ii) the Freeport Joint Ventures shall not be required to become Subsidiary Guarantors, and (iii) in no event shall such Subsidiary be required to exceed the 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.
6.14    Foreign Employee Benefit Compliance.  The Company shall, and shall cause each of its Subsidiaries and each member of its Controlled Group to, establish, maintain and operate all Foreign Employee Benefit Plans to comply in all material respects with all laws, regulations and rules applicable thereto and the respective requirements of the governing documents for such Plans, except for failures to comply which, in the aggregate, would not be reasonably likely to subject the Company or any of its Subsidiaries to liability, individually or in the aggregate, in excess of $50,000,000.
6.15    Anti-Corruption Laws.  The Company and its Subsidiaries shall conduct their businesses in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions, and maintain policies and procedures designed to promote and achieve compliance with such laws.
ARTICLE VII     
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder or any Loan or other Obligation hereunder shall remain unpaid or unsatisfied (other than contingent Obligations to the extent no claim giving rise thereto has been asserted), the Company shall not (excluding Sections 7.01 and 7.05 which, for the avoidance of doubt, shall not apply to the Company in any respect), nor shall it permit any Subsidiary to, directly or indirectly:
7.01    Indebtedness.  
(i)    After the Amendment No. 3 Closing Date, the Company 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 Administrative Agent and such evidence reasonably satisfactory to the Administrative Agent) except with respect to (a) secured Indebtedness in existence on the Amendment No. 3 Closing Date (and any Permitted Refinancing thereof) to the extent not otherwise in violation of Section 7.01(ii) and (b) to the extent such Indebtedness is secured, Indebtedness permitted pursuant to Sections 7.01(ii)(a), 7.01(ii)(b), 7.01(ii)(c), 7.01(ii)(d), 7.01(ii)(f), 7.01(ii)(g), 7.01(ii)(h), 7.01(ii)(k) and 7.01(ii)(l) (in each case to the extent that notwithstanding this Section 7.01(i) such Indebtedness is permitted to be secured under this Agreement).


    









(ii)    None of the Company’s Subsidiaries shall create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except, in each case subject to clause (i) above:
(a)    Indebtedness of the Borrower under this Agreement and the Subsidiaries under the Subsidiary Guaranty;
(b)    Indebtedness in respect of guaranties executed by any Subsidiary Guarantor with respect to any Indebtedness of the Company, provided that such Indebtedness is not incurred by the Company in violation of this Agreement;
(c)    Indebtedness in respect of obligations secured by Customary Permitted Liens;
(d)    Indebtedness constituting Contingent Obligations permitted by Section 7.05;
(e)    Unsecured Indebtedness arising from loans from (i) any Subsidiary to any wholly owned Subsidiary, (ii) the Company to any wholly owned Subsidiary, (iii) Lealand Finance Company B.V. to any Subsidiary (other than any Subsidiary Guarantor) in an aggregate outstanding principal amount not to exceed $100,000,000 at any time and (iv) any one or more Subsidiary Guarantors to Horton CBI, Limited in an aggregate outstanding principal amount not to exceed $100,000,000; provided that if any Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness may only be due to a Subsidiary Guarantor and shall be expressly subordinate to the payment in full in cash of the Obligations on terms satisfactory to the Administrative Agent;
(f)    Indebtedness in respect of Hedging Obligations which are not prohibited under Section 7.13;
(g)    Indebtedness with respect to surety, appeal and performance bonds and Performance Letters of Credit (under and as defined in each of the Existing 2013 Revolving Credit Agreement and the Existing 2015 Revolving Credit Agreement) obtained by any of the Company’s Subsidiaries in the ordinary course of business;
(h)    Indebtedness evidenced by letters of credit, bank guarantees or other similar instruments in an aggregate face amount not to exceed at any time $150,000,000 issued in the ordinary course of business to secure obligations of the Company and its Subsidiaries under workers’ compensation and other social security programs, and Contingent Obligations with respect to any such permitted letters of credit, bank guarantees or other similar instruments;
(i)    (i) Permitted Existing Indebtedness and (ii) other Indebtedness, in addition to that referred to elsewhere in this Section 7.01, incurred by the Company’s Subsidiaries, provided that no Default or Event of Default shall have occurred and be continuing at the date of such incurrence or would result therefrom, and provided further that the aggregate 


    









outstanding amount of all Indebtedness incurred by the Company’s Subsidiaries under this clause (i)(ii) shall not at any time exceed $100,000,000;
(j)    Indebtedness of The Shaw Group Inc. or any of its Subsidiaries existing on the Closing Date and permitted under the Transaction Agreement;
(k)    Indebtedness of the Borrower and any Subsidiary Guarantor in respect of (i) the Existing 2013 Revolving Credit Agreement) and (ii) the Existing 2015 Revolving Credit Agreement (and any Permitted Refinancing in each case thereof), so long as such Indebtedness is not senior to the Obligations in right of payment and is not guaranteed by any Subsidiary that is not a Subsidiary Guarantor;
(l)    Indebtedness of any Subsidiary Guarantor in respect of the NPA Notes (and any Permitted Refinancing thereof), so long as such Indebtedness is not senior to the Obligations in right of payment and is not guaranteed by any Subsidiary that is not a Subsidiary Guarantor; and
(m)    Unsecured Indebtedness incurred by the Borrower or any Subsidiary Guarantor and owing to a joint venture in which the Borrower or any Subsidiary Guarantor owns any interest.
7.02    Sales of Assets.  Neither the Company nor any of its Subsidiaries shall consummate any Asset Sale, except:
(a)    sales of inventory in the ordinary course of business;
(b)    the Disposition in the ordinary course of business of equipment that is obsolete, excess or no longer used or useful in the Company’s or its Subsidiaries’ businesses;
(c)    (i) Dispositions of assets between Loan Parties, or from a Subsidiary of the Company that is not a Loan Party to a Loan Party; (ii) Dispositions of assets from a Subsidiary of the Company that is not a Loan Party to a Subsidiary of the Company that is not a Loan Party and (iii) Dispositions of assets in the ordinary course of business from a Loan Party to a Subsidiary of the Company that is not a Loan Party and not otherwise prohibited by this Agreement in an aggregate amount not to exceed $50,000,000 from and after the Amendment No. 3 Closing Date;
(d)    the Permitted Sale and Leaseback Transactions; 
(e)    Dispositions in connection with Project Bluefin; 
(f)    other leases, sales or other Dispositions of assets not otherwise permitted by this Section 7.02 if such transaction (i) is for consideration consisting at least eighty percent (80%) of cash, (ii) is for not less than fair market value (as determined in good faith by the Company’s board of directors), and (iii) involves assets that, together with all other assets of the Company and its Subsidiaries previously leased, sold or disposed of (other than pursuant to clauses (a) through (e) above) as permitted by this Section 7.02 (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 Company and its Subsidiaries and (y) since the Closing Date do not 


    









exceed fifteen percent (15%) of consolidated tangible assets of the Company 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
(g)    Dispositions in connection with Project Jazz; provided, however, that all of the cash proceeds received from the divestiture in connection with Project Jazz shall be promptly (but in any event within 30 days upon such receipt of proceeds), and on a pro rata basis based on outstanding balances as of the last day of the fiscal quarter immediately preceding the consummation of Project Jazz, used to prepay (1) syndicated term loans, Committed Loans (as defined therein) under either or both of the Existing 2013 Revolving Credit Agreement and Existing 2015 Revolving Credit Agreement and/or outstanding amounts owing under any bilateral revolving credit facility (collectively, “Bank Debt”), on the one hand, and (2) certain outstanding amounts owing under the NPA Notes, on the other hand, in each case, as determined by the Company and reasonably satisfactory to the Administrative Agent, it being agreed and understood that (i) any portion of such proceeds to be applied to the NPA Notes may be first applied to Bank Debt consisting of revolving loans and, subject to the terms of such revolving loans, reborrowed for purposes of prepaying the NPA Notes in accordance with their terms, and (ii) any portion of such proceeds offered to, but declined by, the holders of the NPA Notes may be used to prepay Bank Debt, as determined by the Company.
7.03    Liens.  Neither the Company nor any of its Subsidiaries shall directly or indirectly create, incur, assume or permit to exist any Lien on or with respect to any of their respective property or assets except:
(a)    Liens, if any, created by the Loan Documents or otherwise securing the Obligations;
(b)    Customary Permitted Liens;
(c)    other Liens not otherwise permitted by this Section 7.03, including Permitted Existing Liens, securing Indebtedness of the Company’s Subsidiaries as permitted pursuant to Section 7.01 and in an aggregate outstanding amount not to exceed two and one-half percent (2 1⁄2 %) of consolidated tangible assets of the Company and its Subsidiaries at any time;
(d)    Liens on the assets of The Shaw Group Inc. and its Subsidiaries, existing on the Closing Date and permitted under the Transaction Agreement, provided that such Liens extend only to such assets or proceeds thereof and were not incurred in contemplation of the Shaw Acquisition; 
(e)    as long as the obligations under this Agreement are secured equally and ratably by the same collateral subject to such Liens, Liens securing the other Transaction Facilities (and any Permitted Refinancing thereof); 
(f)    Liens on pledged cash of the Company and its Subsidiaries required for notional cash pooling arrangements in the ordinary course of business;
(g)    Liens on accounts receivables and related assets of the Company pursuant to a Qualified Securitization Financing; provided, however, that (i) the aggregate principal amount of 


    









Indebtedness so secured under all Qualified Securitization Financings shall not exceed $250,000,000 at any one time outstanding and (ii) such Liens shall only be permitted to the extent that on the date of incurrence thereof the Leverage Ratio is less than 3.00 to 1.00 (the Leverage Ratio as evidenced to the Administrative Agent and such evidence reasonably satisfactory to the Administrative Agent); and
(h)    Liens not to exceed $500,000,000, on terms and conditions satisfactory to the Administrative Agent, securing performance and financial letters of credit issued by Lenders outside of the Existing 2013 Revolving Credit Agreement and the Existing 2015 Revolving Credit Agreement to the extent such Liens (i) arise under the Loan Documents hereunder or under the Existing 2013 Revolving Credit Agreement and the Existing 2015 Revolving Credit Agreement (or any other documents that grant a Lien on assets of the Company and its Subsidiaries to secure the Obligations hereunder or thereunder) and (ii) are subject to customary pari passu (up to such $500,000,000 limit) intercreditor agreements reasonably satisfactory to the Administrative Agent with respect to such Liens.
In addition, neither the Company nor any of its Subsidiaries shall become a party to any agreement, note, indenture or other instrument, or take any other action, which would prohibit the creation of a Lien on any of its properties or other assets in favor of the Administrative Agent as collateral for the Obligations; provided that (x) any agreement, note, indenture or other instrument in connection with purchase money Indebtedness (including Capitalized Leases) incurred in compliance with the terms of this Agreement may prohibit the creation of a Lien in favor of the Administrative Agent and the Lenders on the items of property obtained with the proceeds of such Indebtedness and (y) the Transaction Facilities (and any Permitted Refinancing thereof) may prohibit the creation of a Lien in favor of the Administrative Agent and the Lenders unless such Indebtedness is secured equally and ratably with the Obligations.
7.04    Investments.  Except to the extent permitted pursuant to Section 7.06, neither the Company 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 in an amount not greater than the amount thereof on the Closing Date;
(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 Company 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 7.02;


    









(f)    Investments in any consolidated Subsidiaries (i) outstanding on the Amendment No. 3 Closing Date, and (ii) after the Amendment No. 3 Closing Date, additional Investments (A) in Loan Parties, (B) by Subsidiaries of the Company that are not Loan Parties in other Subsidiaries that are not Loan Parties, (C) by Subsidiaries of the Company that are not Loan Parties in Loan Parties and (D) by the Loan Parties in consolidated Subsidiaries that are not Loan 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 Section 7.01 or Contingent Obligations permitted by Section 7.05;
(j)    Investments in addition to those referred to elsewhere in this Section 7.04 in an aggregate amount not to exceed ten percent (10%) of consolidated tangible assets of the Company and its Subsidiaries at any time; provided that any such Investments incurred after the Amendment No. 3 Closing 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 Administrative Agent and such evidence reasonably satisfactory to the Administrative Agent); and
(k)    Investments of The Shaw Group Inc. and its Subsidiaries on the Closing Date and permitted under the Transaction Agreement.


    









7.05    Contingent Obligations.  None of the Company’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; (c) Contingent Obligations (i) incurred by any Subsidiary of the Company to support the performance of bids, tenders, sales or contracts (other than for the repayment of borrowed money) of any other Subsidiary of the Company or, solely to the extent of its relative ownership interest therein, any Person (other than a wholly owned Subsidiary of the Company) 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 Company or any Subsidiary (provided that the Indebtedness with respect thereto is permitted pursuant to Section 7.01) or, solely to the extent of its relative ownership interest therein, any Person (other than a wholly owned Subsidiary of the Company) 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 existing on the Closing Date and permitted under the Transaction Agreement.
7.06    Conduct of Business; Subsidiaries; Permitted Acquisitions.  Neither the Company nor any of its Subsidiaries shall engage in any business other than the businesses engaged in by the Company and its Subsidiaries on the Closing Date and any business or activities which are substantially similar, related or incidental thereto or logical extensions thereof.  The Company shall not create, acquire or capitalize any Subsidiary after the Closing 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 Company and such Subsidiary shall be in compliance with the terms of Section 6.13 and Section 7.16.  From the Amendment No. 3 Closing Date until the date on which the Leverage Ratio is less than 3.00 to 1.00 (as evidenced to the Administrative Agent and such evidence reasonably satisfactory to the Administrative Agent), neither the Company nor its Subsidiaries shall make any Acquisitions unless otherwise approved by the Required Lenders.  Thereafter, neither the Company nor its Subsidiaries shall make any Acquisitions, other than Acquisitions meeting the following requirements or otherwise approved by the Required Lenders (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 Loan Documents shall be true and correct in all material respects as though made on 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 Company shall provide written notification to the Administrative Agent 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 Company and its Subsidiaries on the Closing Date;
(e)    prior to such Acquisition and the incurrence of any Indebtedness permitted by Section 7.01 in connection therewith, the Company shall deliver to the Administrative Agent and the Lenders 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 Company’s most recently completed fiscal quarter, the Company would have been in compliance with the financial covenants in Section 7.18 and not otherwise in an Event of Default; and
(f)    without the prior written consent of the Required Lenders, (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 Company’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 the Closing Date.
7.07    Transactions with Shareholders and Affiliates.  Other than transactions otherwise permitted by Section 7.04, neither the Company nor any of its Subsidiaries shall directly or indirectly enter into or permit to exist any transaction (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or make loans or advances to any holder or holders of any of the Equity Interests of the Company, or with any Affiliate of the Company which is not its Subsidiary of the Company, on terms that are less favorable to the Company or any of its Subsidiaries, as applicable, than those that could reasonably be obtained in an arm’s length transaction at the time from Persons who are not such a holder or Affiliate.
7.08    Restriction on Fundamental Changes.  Neither the Company nor any of its Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company’s consolidated business or property (each such transaction a “Fundamental Change”), whether now or hereafter acquired, except (a) Fundamental Changes permitted under Sections 7.02, 7.04 or 7.07, (b) a Subsidiary of the Company may be merged into or consolidated with the Company (in which case the Company shall be the surviving corporation) or any wholly owned Subsidiary of the Company provided the Company owns, directly or indirectly, a percentage of the equity of the merged entity not less than 


    









the percentage it owned of the Subsidiary prior to such Fundamental Change and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, (c) any liquidation of any Subsidiary of the Company, into the Company or another Subsidiary of the Company, as applicable, and (d) any Subsidiary may dissolve, liquidate or wind-up its affairs at any time if such dissolution, liquidation or winding up is not disadvantageous to the Administrative Agent or any Lender in any material respect.
7.09    Sales and Leasebacks.  Neither the Company 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 existing on the Closing Date and permitted under the Transaction Agreement), unless the sale involved is not prohibited under Section 7.02, the lease involved is not prohibited under Section 7.01 and any related Investment is not prohibited under Section 7.04.
7.10    Margin Regulations.  Neither the Company nor any of its Subsidiaries, shall use all or any portion of the proceeds of any credit extended under this Agreement to purchase or carry Margin Stock in violation of any applicable legal and regulatory requirements including, without limitation, Regulations T, U and X, the Securities Act of 1933, and the Securities Exchange Act of 1934 and the regulations promulgated thereunder.
7.11    ERISA.  The Company shall not:
(a)    permit to exist any accumulated funding deficiency (as defined in Sections 302 of ERISA and 412 of the Code), with respect to any Benefit Plan, whether or not waived;
(b)    terminate, or permit any Controlled Group member to terminate, any Benefit Plan which would result in liability of the Company or any Controlled Group member under Title IV of ERISA;
(c)    fail, or permit any Controlled Group member to fail, to pay any required installment or any other payment required under Section 412 of the Code on or before the due date for such installment or other payment; or
(d)    permit any unfunded liabilities with respect to any Foreign Pension Plan;
except, in each case, as set forth on Schedule 5.09 or except where such transactions, events, circumstances, or failures are not, individually or in the aggregate, reasonably expected to result in liability individually or in the aggregate in excess of $50,000,000.
7.12    Subsidiary Covenants.  Except as set forth on Schedule 7.12, and except for any (a) encumbrance or restriction binding upon The Shaw Group Inc. and its Subsidiaries existing on the Closing Date and permitted under the Transaction Agreement, (b) encumbrance or restriction contained in any of the Transaction Facilities (or any amendments or Permitted Refinancings 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 7.02, 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 Company 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 Company or any other Subsidiary, make loans or advances or other Investments in the Company or any other Subsidiary, or sell, transfer or otherwise convey any of its property to the Company or any other Subsidiary, or merge, consolidate with or liquidate into the Company or any other Subsidiary.
7.13    Hedging Obligations.  The Company 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 Company or its Subsidiaries pursuant to which the Company or such Subsidiary has hedged its reasonably estimated interest rate, foreign currency or commodity exposure, and which are non-speculative in nature.
7.14    Issuance of Disqualified Stock.  From and after the Closing Date, neither the Company, 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
7.15    Non-Guarantor Subsidiaries.  The Company will not at any time permit the sum of the consolidated assets of all of the Company’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 Company’s and its Subsidiaries consolidated assets.  For the avoidance of doubt, Excluded Joint Ventures shall be disregarded for purposes of this Section 7.15.
7.16    Intercompany Indebtedness.  The Company 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 Company unless (a) such Indebtedness is unsecured and (b) such Indebtedness shall be expressly subordinate to the payment in full in cash of the Obligations on terms satisfactory to the Administrative Agent.
7.17    Restricted Payments.  The Company 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) permitted Restricted Payments listed on Schedule 7.17, (b) payments and prepayments of debt permitted by Section 7.01(ii)(j), (c) payments and prepayments of the Transaction Facilities, (d) any Subsidiary may declare and pay dividends ratably with respect to its Equity Interests and (e) other Restricted Payments so long as when each such Restricted Payment is made, on a pro forma basis, the Leverage Ratio of the Company 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, (i) from the Amendment No. 3 Closing Date 


    









until the date on which the Leverage Ratio is less than 3.00 to 1.00 (as evidenced to the Administrative Agent and such evidence reasonably satisfactory to the Administrative Agent), neither the Company nor its Subsidiaries shall 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, and (ii) from the Amendment No. 3 Closing Date until the date on which the Leverage Ratio has been less than 3.00 to 1.00 for the most recently ended two fiscal quarters for which financial statements were required to be delivered, neither the Company nor its Subsidiaries shall pay any cash dividends on account of any Equity Interests of the Company in excess of $0.07 per share per fiscal quarter.
7.18    Financial Covenants.
(a)    Maximum Leverage Ratio.  The Company shall not permit the ratio (the “Leverage Ratio”) of (i) all Adjusted Indebtedness of the Company and its Subsidiaries as of any date of determination (but excluding any Indebtedness permitted under Section 7.01(ii)(m)) to (ii) EBITDA for the most recently-ended period of four-fiscal quarters for which financial statements were required to be delivered to be greater than the ratio set forth below opposite such fiscal quarter: 
	
		
	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






The Leverage Ratio (including for purposes of determining the Applicable Rate) shall be calculated as of the last day of each fiscal quarter based upon (A) for Adjusted Indebtedness, Adjusted Indebtedness as of the last day of each such fiscal quarter and (B) for EBITDA, the actual amount for the four quarter period ending on such day, calculated, with respect to Permitted Acquisitions, on a pro forma basis using historical audited and reviewed unaudited financial statements obtained from the seller(s) in such Permitted Acquisition, broken down by fiscal quarter in the Company’s reasonable judgment and satisfactory to the Administrative Agent and as reported to the Administrative Agent pursuant to the provisions of Section 7.06(b).
(b)    Minimum Fixed Charge Coverage Ratio.  The Company and its consolidated Subsidiaries shall maintain a ratio, without duplication, of Consolidated Net Income Available for 


    









Fixed Charges to Consolidated Fixed Charges of at least 1.75 to 1.00 for the most recently-ended period of four fiscal quarters for which financial statements were required to be delivered, commencing with the fiscal quarter ended as of September 30, 2015 through the Maturity Date.  If, during the period for which Consolidated Net Income Available for Fixed Charges and Consolidated Fixed Charges are being calculated, the Company 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 7.18(b) 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.
(c)    Minimum Consolidated Net Worth.  The Company shall not permit its Consolidated Net Worth at any time on or after December 31, 2016 to be less than the greater of (a) the sum of (i) eighty-five percent (85%) of the actual net worth of the Company and its Subsidiaries on a consolidated basis as of December 31, 2016 (after giving effect to write-downs associated with Project Jazz) plus (ii) 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 (iii) a one-time non-cash tax expense resulting from the tax gain on the Project Jazz sale, not to exceed $150,000,000, and (b) the minimum amount of Consolidated Net Worth that the Company shall be required to maintain under any instrument, agreement or indenture pertaining to any Material Indebtedness.  Notwithstanding the foregoing, in no event shall Consolidated Net Worth of the Company as of December 31, 2016 be less than $1,200,000,000.
(d)    Maximum Senior Secured Leverage Ratio.  At all times after a capital market transaction for unsecured Indebtedness is consummated by the Company, commencing (if applicable) with the fiscal quarter ending June 30, 2017, and until the Leverage Ratio is less than 3.00 to 1.00 on a date on or after June 30, 2018 (accompanied by supporting evidence reasonably satisfactory to the Administrative Agent, and regardless if any Senior Secured Indebtedness is then outstanding), the Company shall not permit the ratio (the “Senior Secured Leverage Ratio”) of (i) all Senior Secured Indebtedness of the Company 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 be greater than the ratio set forth below opposite such fiscal quarter: 


    









	
		
	Four Fiscal Quarters Ending
	Maximum Senior Secured Leverage Ratio

	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






The Senior Secured Leverage Ratio shall be calculated as of the last day of each fiscal quarter based upon (A) for Senior Secured Indebtedness, Senior Secured Indebtedness as of the last day of each such fiscal quarter and (B) for EBITDA, the actual amount for the four quarter period ending on such day, calculated, with respect to Permitted Acquisitions, on a pro forma basis using historical audited and reviewed unaudited financial statements obtained from the seller(s) in such Permitted Acquisition, broken down by fiscal quarter in the Company’s reasonable judgment and satisfactory to the Administrative Agent and as reported to the Administrative Agent pursuant to the provisions of Section 7.06(b).  
7.19    Sanctions.  The Borrower shall not, directly or, to its knowledge, indirectly, use the proceeds of any Borrowing, or lend, contribute or otherwise make available such proceeds to the Company, any Subsidiary, joint venture partner or other individual or entity, to fund any activities of or business with any individual or entity, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by an individual or entity (including any individual or entity participating in the transaction, whether as Lender, Arranger, Administrative Agent or otherwise) of Sanctions.
7.20    Anti-Corruption Laws.  The Borrower shall not, directly or, to its knowledge, indirectly, use the proceeds of any Borrowing for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions.
ARTICLE VIII     
EVENTS OF DEFAULT AND REMEDIES
8.01    Events of Default.  Each of the following occurrences shall constitute an Event of Default under this Agreement:
(a)    Failure to Make Payments When Due.  The Company or the Borrower shall (i) fail to pay when due any of the Obligations consisting of principal with respect to the Loans or (ii) shall fail to pay within five (5) days of the date when due any of the other Obligations under this Agreement or the other Loan Documents.


    









(b)    Breach of Certain Covenants.  The Company shall fail duly and punctually to perform or observe any agreement, covenant or obligation binding on the Company under Sections 6.01, 6.03, 6.08, 6.13, or Article VII.
(c)    Breach of Representation or Warranty.  Any representation or warranty made or deemed made by the Company or the Borrower to the Administrative Agent or any Lender herein or by the Company or the Borrower or any of the Company’s Subsidiaries in any of the other Loan Documents or in any statement or certificate or information at any time given by any such Person pursuant to any of the Loan Documents shall be false or misleading in any material respect on the date as of which made (or deemed made).
(d)    Other Defaults.  The Company or the Borrower shall default in the performance of or compliance with any term contained in this Agreement (other than as covered by subsections (a), (b) or (c) of this Section 8.01), or the Company or the Borrower or any of the Company’s Subsidiaries shall default in the performance of or compliance with any term contained in any of the other Loan Documents, and such default shall continue for thirty (30) days after the occurrence thereof.
(e)    Default as to Other Indebtedness.  The Company or any of its Subsidiaries shall fail to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) with respect to any Indebtedness (other than Indebtedness hereunder), beyond any period of grace provided with respect thereto, which individually or together with other such Indebtedness as to which any such failure or other Events of Default under this subsection (e) exists has an aggregate outstanding principal amount equal to or in excess of the Threshold Amount (such Indebtedness being “Material Indebtedness”); or any breach, default or event of default (including any termination event, amortization event, liquidation event or event of like import arising under any agreement or instrument giving rise to any Off-Balance Sheet Liabilities) shall occur, or any other condition shall exist under any instrument, agreement or indenture pertaining to any such Material Indebtedness, beyond any period of grace, if any, provided with respect thereto, if the effect thereof is to cause an acceleration, mandatory redemption, a requirement that the Company offer to redeem or purchase such Indebtedness or other required repurchase or early amortization of such Indebtedness, or permit the holder(s) of such Indebtedness to accelerate the maturity of any such Indebtedness or require a redemption, purchase, early amortization or repurchase of such Indebtedness; or any such Indebtedness shall be otherwise declared to be due and payable (by acceleration or otherwise) or required to be prepaid, redeemed, amortized or otherwise repurchased by the Company or any of its Subsidiaries (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof.
(f)    Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i)    An involuntary case shall be commenced against the Company or any of the Company’s Subsidiaries and the petition shall not be dismissed, stayed, bonded or discharged within forty-five (45) days after commencement of the case; or a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company or any of the Company’s Subsidiaries in an involuntary case, under any applicable bankruptcy, insolvency or other similar law now or hereinafter in effect; or any other similar relief shall be granted under any applicable federal, state, local or foreign law.


    









(ii)    A decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Company or any of the Company’s Subsidiaries or over all or a substantial part of the property of the Company or any of the Company’s Subsidiaries shall be entered; or an interim receiver, trustee or other custodian of the Company or any of the Company’s Subsidiaries or of all or a substantial part of the property of the Company or any of the Company’s Subsidiaries shall be appointed or a warrant of attachment, execution or similar process against any substantial part of the property of the Company or any of the Company’s Subsidiaries shall be issued and any such event shall not be stayed, dismissed, bonded or discharged within forty-five (45) days after entry, appointment or issuance.
(g)    Voluntary Bankruptcy; Appointment of Receiver, Etc.  The Company or any of the Company’s Subsidiaries shall (i) commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, except for any proceeding to wind up the Toronto office of the business sold pursuant to the E&C Sale (as defined in the Transaction Agreement) (to the extent bankruptcy has been initiated by The Shaw Group prior to the Closing Date), (ii) consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, (iii) consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property, (iv) make any assignment for the benefit of creditors or (v) take any corporate action to authorize any of the foregoing.
(h)    Judgments and Attachments.  Any money judgment(s), writ or warrant of attachment, or similar process against the Company or any of its Subsidiaries or any of their respective assets involving in any single case or in the aggregate an amount in excess of the Threshold Amount (to the extent not covered by independent third party insurance as to which the insurer does not dispute coverage) is or are entered and shall remain undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days or in any event later than fifteen (15) days prior to the date of any proposed sale thereunder.
(i)    Dissolution.  Any order, judgment or decree shall be entered against the Company or any Subsidiary decreeing its involuntary dissolution or split up and such order shall remain undischarged and unstayed for a period in excess of forty-five (45) days; or the Company or any Subsidiary shall otherwise dissolve or cease to exist except as specifically permitted by this Agreement.
(j)    Loan Documents.  At any time, for any reason, any Loan Document as a whole that materially affects the ability of the Administrative Agent, or any of the Lenders to enforce the Obligations ceases to be in full force and effect or the Company or any of the Company’s Subsidiaries party thereto seeks to repudiate its obligations thereunder.
(k)    Termination Event.  Any Termination Event occurs which the Required Lenders believe is reasonably likely to subject the Company to liability in excess of the Threshold Amount, except as set forth on Schedule 5.09.


    









(l)    Waiver of Minimum Funding Standard.  If the plan administrator of any Plan applies under Section 412(d) of the Code for a waiver of the minimum funding standards of Section 412(a) of the Code and any Lender believes the substantial business hardship upon which the application for the waiver is based could reasonably be expected to subject either the Company or any Controlled Group member to liability in excess of the Threshold Amount.
(m)    Change of Control.  A Change of Control shall occur.
(n)    Environmental Matters.  The Company or any of its Subsidiaries shall be the subject of any proceeding or investigation (other than in connection with a Product Liability Event) pertaining to (i) the Release by the Company or any of its Subsidiaries of any Contaminant into the environment, (ii) the liability of the Company or any of its Subsidiaries arising from the Release by any other Person of any Contaminant into the environment, or (iii) any violation of any Environmental, Health or Safety Requirements of Law which by the Company or any of its Subsidiaries, which, in any case, has or is reasonably likely to subject the Company to liability individually or in the aggregate in excess of the Threshold Amount (to the extent not covered by independent third party insurance as to which the insurer does not dispute coverage).
(o)    Guarantor Revocation.  Any Guarantor of the Obligations shall terminate or revoke any of its obligations under the applicable Guaranty or breach any of the material terms of such Guaranty.
An Event of Default shall be deemed “continuing” until cured or until waived in writing in accordance with Section 8.02.
8.02    Remedies Upon Event of Default.  If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:
(a)    declare the obligation of each Lender to make Loans to be terminated, whereupon such obligations shall be terminated;
(b)    declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; and
(c)    exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents;
provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, in each case without further act of the Administrative Agent or any Lender.


    









8.03    Application of Funds.  After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable as set forth in the proviso to Section 8.02), any amounts received on account of the Obligations shall, subject to the provisions of Section 2.13 and except as otherwise set forth herein, be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts payable to the Lenders (including fees, charges and disbursements of counsel to the respective Lenders pursuant to Section 10.04 or otherwise and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans and other Obligations, ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans and Hedging Obligations under Designated Hedging Agreements, ratably among the Lenders and the Hedge Banks, in proportion to the respective amounts described in this clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law;
provided that Excluded Swap Obligations with respect to any Loan Party shall not be paid with amounts received from such Loan Party or its assets, but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the allocation to Obligations otherwise set forth above in this Section.
Notwithstanding the foregoing, Hedging Obligations shall be excluded from the application described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may request, from the applicable Hedge Bank, as the case may be.  Each Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX for itself and its Affiliates as if a “Lender” party hereto.


    









ARTICLE IX     
ADMINISTRATIVE AGENT
9.01    Appointment and Authority.  Each of the Lenders hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.  The provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders, and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions, except as set forth in Section 9.06 with respect to appointing a successor Administrative Agent as described in such Section.  It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
9.02    Rights as a Lender.  The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
9.03    Exculpatory Provisions.  The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature.  Without limiting the generality of the foregoing, the Administrative Agent:
(a)    shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(b)    shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and


    









(c)    shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment.  The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given in writing to the Administrative Agent by the Borrower or a Lender.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
9.04    Reliance by Administrative Agent.  The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person.  The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan.  The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
9.05    Delegation of Duties.  The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties.  The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, 


    









and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.  The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
9.06    Resignation of Administrative Agent.  
(a)    The Administrative Agent may at any time give notice of its resignation to the Lenders and the Company.  Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States.  If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above.  Notwithstanding anything herein to the contrary, (i) so long as no Event of Default has occurred and is continuing, each such successor Administrative Agent shall be subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(b)    If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Company and such Person remove such Person as Administrative Agent and appoint a successor; provided that, so long as no Event of Default has occurred and is continuing, each such successor Administrative Agent shall be subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed.  If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
(c)    With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above.  Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than as provided in Section 3.01(g) and other than any rights to 


    









indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section) .  The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.  After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent.
9.07    Non-Reliance on Administrative Agent and Other Lenders.  Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
9.08    No Other Duties, Etc.  Anything herein to the contrary notwithstanding, none of the Bookrunners, Arrangers or other agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent or a Lender hereunder.
9.09    Administrative Agent May File Proofs of Claim.  In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a)    to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Sections 2.07 and 10.04) allowed in such judicial proceeding; and
(b)    to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;


    









and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.07 and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
9.10    Guaranty Matters.  Without limiting the provisions of Section 9.09, each of the Lenders (including in its capacities as a potential Hedge Bank) irrevocably authorizes the Administrative Agent, at its option and in its discretion, to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents.
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10.  In each case as specified in this Section 9.10, the Administrative Agent will, at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.10.


    









9.11    Hedge Obligations.  Except as otherwise expressly set forth herein, no Hedge Bank that obtains the benefit of the provisions of Section 8.03 or any Guaranty by virtue of the provisions hereof shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document (or to notice of or to consent to any amendment, waiver or modification of the provisions hereof or of any Guaranty) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents.  Notwithstanding any other provision of this Article IX to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Hedging Obligations except to the extent expressly provided herein and unless the Administrative Agent has received written notice of such Hedging Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Hedge Bank.  The Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Hedging Obligations in the case of a termination pursuant to Section 11.06.
ARTICLE X     
MISCELLANEOUS
10.01    Amendments, Etc.  No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Company or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Company or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:
(a)    waive any condition set forth in Section 4.01(a) without the written consent of each Lender subject to the last paragraph of such Section;
(b)    extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written consent of such Lender;
(c)    postpone any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby (except with respect to any modifications of the provisions relating to amounts, timing or application of optional prepayments of Loans and other Obligations, which modification shall require only the approval of the Required Lenders);
(d)    reduce the principal of, or the rate of interest specified herein on, any Loan, or (subject to clause (ii) of the second proviso to this Section 10.01) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby; provided, however, that only the consent of the Required Lenders shall be necessary to (i) amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest at the Default Rate or (ii) amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or to reduce any fee payable hereunder;


    









(e)    change Section 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender;
(f)    change any provision of this Section or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender;
(g)    release any Guarantor from its respective Guaranty or release all or substantially all of the value of any Guaranty without the written consent of each Lender, except to the extent the release of any Subsidiary Guarantor is permitted pursuant to Section 9.10 (in which case such release may be made by the Administrative Agent acting alone); or
and, provided, further, that (i)  no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and (ii) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto.  Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender.
Notwithstanding any provision herein to the contrary the Administrative Agent, the Company and the Borrower may amend, modify or supplement this Agreement or any other Loan Document (x) to effect the provisions of Section 2.12 or (y) to cure or correct administrative errors or omissions, any ambiguity, omission, defect or inconsistency or to effect administrative changes, and such amendment shall become effective without any further consent of any other party to such Loan Document so long as (i) such amendment, modification or supplement does not adversely affect the rights of any Lender or other holder of Obligations in any material respect and (ii) the Lenders shall have received at least two Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within two Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment, modification or supplement.
10.02    Notices; Effectiveness; Electronic Communication.
(a)    Notices Generally.  Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows, 


    









and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i)    if to the Company or any other Loan Party, or the Administrative Agent, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 10.02; and
(ii)    if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Company).
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient).  Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).
(b)    Electronic Communications.  Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication.  The Administrative Agent or the Company may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
(c)    The Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS 


    









FROM THE BORROWER MATERIALS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Company’s, any Loan Party’s or the Administrative Agent’s transmission of Borrower Materials through the Internet.
(d)    Change of Address, Etc.  Each of the Borrower and the Administrative Agent may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the other parties hereto.  Each other Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the Company and the Administrative Agent.  In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, facsimile number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.  Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Company or its securities for purposes of United States Federal or state securities laws.
(e)    Reliance by Administrative Agent and Lenders.  The Administrative Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic or electronic Borrowing/Election Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.  The Company shall indemnify the Administrative Agent, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower.  All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
10.03    No Waiver; Cumulative Remedies; Enforcement.  No failure by any Lender or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or 


    









privilege.  The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.11), or (c) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b) and (c) of the preceding proviso and subject to Section 2.11, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
10.04    Expenses; Indemnity; Damage Waiver.
(a)    Costs and Expenses.  The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated) and (ii) all out-of-pocket expenses incurred by the Administrative Agent or any Lender (including the fees, charges and disbursements of any counsel for the Administrative Agent or any Lender), in connection with the enforcement or protection of its rights in connection with this Agreement and the other Loan Documents, including its rights under this Section.
(b)    Indemnification by the Borrower.  The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof) and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Company or any other Loan Party) other than such Indemnitee and its Related Parties arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations 


    









hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Company or any other Loan Party, and regardless of whether any Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the Company or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Company or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.  Without limiting the provisions of Section 3.01(c), this Section 10.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
(c)    Reimbursement by Lenders.  To the extent that the Borrower for any reason fail to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent or Related Party thereof), each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent or Related Party) such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total Outstandings at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment to be made severally among them based on such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought), provided, further, that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent or Related Party acting for the Administrative Agent (or any such sub-agent) in connection with such capacity).  The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.10(d).
(d)    Waiver of Consequential Damages, Etc.  To the fullest extent permitted by applicable law, no party hereto shall assert, and each party hereby waives, and acknowledges that no other Person shall have, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof.  No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials 


    









distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.
(e)    Payments.  All amounts due under this Section shall be payable not later than ten (10) Business Days after demand therefor.
(f)    Survival.  The agreements in this Section and the indemnity provisions of Section 10.02(e) shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
10.05    Payments Set Aside.  To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect.  The obligations of the Lenders under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
10.06    Successors and Assigns.
(a)    Successors and Assigns Generally.  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither the Company nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder (except pursuant to a transaction involving the Borrower permitted under this Agreement) without the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (e) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the 


    









extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)    Assignments by Lenders.  Any Lender may at any time assign to one or more assignees that are Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that any such assignment shall be subject to the following conditions:
(i)    Minimum Amounts.
(A)    in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or the Loans at the time owing to it or contemporaneous assignments to related Approved Funds that equal at least the amount specified in paragraph (b)(i)(B) of this Section in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B)    in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Company otherwise consents (each such consent not to be unreasonably withheld or delayed).
(ii)    Proportionate Amounts.  Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned;
(iii)    Required Consents.  No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:
(A)    the consent of the Company (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; and
(B)    the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender.


    









(iv)    Assignment and Assumption.  The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment.  The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(v)    No Assignment to Certain Persons.  No such assignment shall be made (A) to the Company or any of the Company’s Affiliates or Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural Person.
(vi)    Certain Additional Payments.  In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Company and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans in accordance with its Applicable Percentage.  Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided that, except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.  Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender.  Any assignment or transfer by a Lender of rights or obligations under this 


    









Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.
(c)    Register.  The Administrative Agent, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement.  The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d)    Participations.  Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person, a Defaulting Lender or the Company or any of the Company’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans  owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.  For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 10.04(c) without regard to the existence of any participation.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any  provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that affects such Participant.  The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 (subject to the requirements and limitations therein, including the requirements under Section 3.01(e) (it being understood that the documentation required under Section 3.01(e) shall be delivered to the Lender who sells the participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 10.13 as if it were an assignee under paragraph (b) of this Section and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired 


    









the applicable participation.  Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 3.06 with respect to any Participant.  To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.11 as though it were a Lender.  Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e)    Certain Pledges.  Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any other central bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
10.07    Treatment of Certain Information; Confidentiality.  Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), including to any Federal Reserve Bank or central bank in connection with pledges permitted under Section 10.06(e), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.12(c) or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder, (g) on a confidential basis to 


    









(i) any rating agency in connection with rating the Company or its Subsidiaries or the credit facilities provided hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (h) with the consent of the Company or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender or any of their respective Affiliates on a nonconfidential basis from a source other than the Company which such Person has no reason to believe has any confidentiality or fiduciary obligation to the Company or its Subsidiaries with respect to such Information.  For purposes of this Section, “Information” means all information received from the Company or any Subsidiary relating to the Company or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by the Company or any Subsidiary, provided that, in the case of information received from the Company or any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential.  Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
Each of the Administrative Agent and the Lenders acknowledges that (a) the Information may include material non-public information concerning the Company or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws.
10.08    Right of Setoff.  If an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such Lender or any such Affiliate to or for the credit or the account of the Borrower or any other Loan Party against any and all of the obligations of the Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or its Affiliates, irrespective of whether or not such Lender or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or such Loan Party may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.13 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.  The rights of each Lender and its Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender and its Affiliates may have.  Each Lender agrees to notify 


    









the Company and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
10.09    Interest Rate Limitation.  Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”).  If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower.  In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
10.10    Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Agreement, the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.
10.11    Survival of Representations and Warranties.  All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof.  Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Borrowing, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.
10.12    Severability.  If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in 


    









any other jurisdiction.  Without limiting the foregoing provisions of this Section 10.12, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, then such provisions shall be deemed to be in effect only to the extent not so limited.
10.13    Replacement of Lenders.  If a Lender (an “Affected Lender”) shall have:  (a) become a Defaulting Lender or a Non-Consenting Lender, (b) requested any payments such that the Borrower is entitled to replace such Lender pursuant to the provisions of Section 3.06 or (c) delivered a notice pursuant to Sections 3.02 or 3.03(b) claiming that such Lender is unable to extend Eurodollar Rate Loans for reasons not generally applicable to other Lenders, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06), all of its interests, rights (other than its existing rights to payments pursuant to Sections 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:
(a)    the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 10.06(b);
(b)    such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company (in the case of all other amounts);
(c)    in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;
(d)    such assignment does not conflict with applicable Laws;
(e)    in the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent; and
(f)    the case of any such assignment resulting from a claim under Sections 3.02 or 3.03(b), the applicable assignee shall not, at the time of such assignment, be subject to such Sections 3.02 or 3.03(b), as applicable.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.  The Administrative Agent is authorized to execute one or more of such assignment agreements as attorney-in-fact for any Affected Lender 


    









failing to execute and deliver the same within five (5) Business Days after demand from the Administrative Agent or the Company for such Affected Lender to execute and deliver the same.
10.14    Governing Law; Jurisdiction; Etc.
(a)    GOVERNING LAW.  THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b)    SUBMISSION TO JURISDICTION.  THE COMPANY AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER, OR ANY RELATED PARTY OF THE FOREGOING, IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS  AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.  NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE COMPANY OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c)    WAIVER OF VENUE.  THE COMPANY AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST 


    









EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d)    SERVICE OF PROCESS.  EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.15    Waiver of Jury Trial.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.16    No Advisory or Fiduciary Responsibility.  In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Company and each other Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (a) (i) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Arrangers and the Lenders are arm’s-length commercial transactions between the Company, each other Loan Party and their respective Affiliates, on the one hand, and the Administrative Agent, the Arrangers and the Lenders, on the other hand, (ii) each of the Company and the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) the Company and each other Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (b) (i) the Administrative Agent, the Arrangers and each Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Company, any other Loan Party or any of their respective Affiliates, or any other Person and (ii) neither the Administrative Agent, any Arranger nor any Lender has any obligation to the Company, any other Loan Party or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (c) the Administrative Agent, the Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, the other Loan Parties and their respective Affiliates, and neither the Administrative Agent, any Arranger, nor any Lender has any obligation to disclose any of such interests to the Company, any other Loan Party 


    









or any of their respective Affiliates.  To the fullest extent permitted by law, each of the Company and each other Loan Party hereby waives and releases any claims that it may have against the Administrative Agent, the Arrangers or any Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
10.17    Electronic Execution of Assignments and Certain Other Documents.  The words “execution,” “execute,” “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation Assignment and Assumptions, amendments or other Borrowing/Election Notices, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Administrative Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it; and provided, further, without limiting the foregoing, upon the request of any party, any electronic signature shall be promptly followed by such manually executed counterpart.
10.18    USA PATRIOT Act.  Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the name and address of the Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Loan Parties in accordance with the Act.  Each Loan Party shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act.  
10.19    Entire Agreement.  This Agreement and the other Loan Documents represent the final agreement among the parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties.  There are no unwritten oral agreements among the parties.
10.20    Keepwell.  Each Loan Party that is a Qualified ECP Guarantor at the time the Guaranty, by any Specified Loan Party, becomes effective with respect to any Swap Obligation hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations under its Guaranty and the other Loan Documents in respect of such Swap Obligation (but, in each case, only 


    









up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Section 10.21 voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount).  The obligations and undertakings of each Qualified ECP Guarantor under this Section 10.20 shall remain in full force and effect until the Obligations (other than contingent indemnity obligations for which no claim is pending) have been indefeasibly paid and performed in full.  Each Qualified ECP Guarantor intends this Section to constitute, and this Section shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of, each Specified Loan Party for all purposes of the Commodity Exchange Act.
10.21    Acknowledgement and Consent to Bail-In of EEA Financial Institutions.  Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)    the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an EEA Financial Institution; and
(b)    the effects of any Bail-In Action on any such liability, including, if applicable:
(i)    a reduction in full or in part or cancellation of any such liability;
(ii)    a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii)    the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority
ARTICLE XI     
GUARANTY
11.01    Guaranty. 
(1)    For valuable consideration, the receipt of which is hereby acknowledged, and to induce the Lenders to make advances to the Borrower, the Company hereby absolutely and unconditionally guarantees prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of any and all existing and future Obligations of the Borrower 


    









to the Administrative Agent, the Lenders, or any of them, under or with respect to the Loan Documents, whether for principal, interest, fees, expenses or otherwise, and all Hedging Obligations of the Borrower owing to any Lender or any Affiliate of any Lender under any Designated Hedging Agreement (collectively, the “Guaranteed Obligations”); provided that Guaranteed Obligations of a Loan Party shall exclude any Excluded Swap Obligations with respect to such Loan Party.
(a)    Without limiting the generality of the foregoing, the Company’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any other Loan Party to any Lender under or in respect of the Loan Documents but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such other Loan Party.  The Company, and by its acceptance of this Guaranty, the Administrative Agent and each other Lender Party, hereby confirms that it is the intention of all such Persons that this Guaranty and the Obligations of the Company hereunder not constitute a fraudulent transfer or conveyance for purposes of Debtor Relief Laws, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this Guaranty and the Obligations of the Company hereunder.  To effectuate the foregoing intention, the Administrative Agent, the Lenders and the Company hereby irrevocably agree that the Obligations of the Company under this Guaranty at any time shall be limited to the maximum amount as will result in the Obligations of the Company under this Guaranty not constituting a fraudulent transfer or conveyance.  The Company hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made to any Lender under this Guaranty or any other guaranty, the Company will contribute, to the maximum extent permitted by law, such amounts to each other guarantor so as to maximize the aggregate amount paid to the Lenders under or in respect of the Loan Documents.
11.02    Waivers; Subordination of Subrogation.
(a)    Waivers.  The Company waives notice of the acceptance of this guaranty and of the extension or continuation of the Guaranteed Obligations or any part thereof.  The Company further waives presentment, protest, notice of notices delivered or demand made on the Borrower or action or delinquency in respect of the Guaranteed Obligations or any part thereof, including any right to require the Administrative Agent and the Lenders to sue the Borrower, any other guarantor or any other Person obligated with respect to the Guaranteed Obligations or any part thereof; provided that if at any time any payment of any portion of the Guaranteed Obligations is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise, the Company’s obligations hereunder with respect to such payment shall be reinstated at such time as though such payment had not been made and whether or not the Administrative Agent or the Lenders are in possession of this guaranty.  The Administrative Agent and the Lenders shall have no obligation to disclose or discuss with the Company their assessments of the financial condition of the Borrower.
(b)    Subordination of Subrogation.  Until the Guaranteed Obligations have been indefeasibly paid in full in cash, the Company (i) shall have no right of subrogation with respect to such Guaranteed Obligations and (ii) waives any right to enforce any remedy which the Administrative Agent now has or may hereafter have against the Borrower, any other Guarantor, 


    









any endorser or any guarantor of all or any part of the Guaranteed Obligations or any other Person.  Should the Company have the right, notwithstanding the foregoing, to exercise its subrogation rights, the Company hereby expressly and irrevocably (a) subordinates any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off that the Company may have to the indefeasible payment in full in cash of the Guaranteed Obligations and (b) waives any and all defenses available to a surety, guarantor or accommodation co-obligor until the Guaranteed Obligations are indefeasibly paid in full in cash.  The Company acknowledges and agrees that this subordination is intended to benefit the Administrative Agent and shall not limit or otherwise affect the Company’s liability hereunder or the enforceability of this Guaranty, and that the Administrative Agent, the Lenders and their successors and assigns are intended third party beneficiaries of the waivers and agreements set forth in this Section 11.02.
11.03    Guaranty Absolute.  This guaranty is a guaranty of payment and not of collection, is a primary obligation of the Company and not one of surety, and the validity and enforceability of this guaranty shall be absolute and unconditional irrespective of, and shall not be impaired or affected by any of the following:  (a) any extension, modification or renewal of, or indulgence with respect to, or substitutions for, the Guaranteed Obligations or any part thereof or any agreement relating thereto at any time; (b) any failure or omission to enforce any right, power or remedy with respect to the Guaranteed Obligations or any part thereof or any agreement relating thereto; (c) any waiver of any right, power or remedy with respect to the Guaranteed Obligations or any part thereof or any agreement relating thereto; (d) any release, surrender, compromise, settlement, waiver, subordination or modification, with or without consideration, any other guaranties with respect to the Guaranteed Obligations or any part thereof, or any other obligation of any Person with respect to the Guaranteed Obligations or any part thereof; (e) the enforceability or validity of the Guaranteed Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto; (f) the application of payments received from any source to the payment of obligations other than the Guaranteed Obligations, any part thereof or amounts which are not covered by this guaranty even though the Administrative Agent and the Lenders might lawfully have elected to apply such payments to any part or all of the Guaranteed Obligations or to amounts which are not covered by this Guaranty; (g) any change in the ownership of the Borrower or the insolvency, bankruptcy or any other change in the legal status of the Borrower; (h) the change in or the imposition of any law, decree, regulation or other governmental act which does or might impair, delay or in any way affect the validity, enforceability or the payment when due of the Guaranteed Obligations; (i) the failure of the Company or any other Borrower to maintain in full force, validity or effect or to obtain or renew when required all governmental and other approvals, licenses or consents required in connection with the Guaranteed Obligations or this guaranty, or to take any other action required in connection with the performance of all obligations pursuant to the Guaranteed Obligations or this guaranty; (j) the existence of any claim, setoff or other rights which the Company may have at any time against the Borrower, or any other Person in connection herewith or an unrelated transaction; or (k) any other circumstances, whether or not similar to any of the foregoing, which could constitute a defense to a guarantor; all whether or not the Company shall have had notice or knowledge of any act or omission referred to in the foregoing clauses (a) through (k) of this Section 11.03.  It is agreed that the Company’s liability hereunder is several and independent of any other guaranties or other obligations at any time in effect with respect to the Guaranteed Obligations or any part thereof and that each Guarantor’s liability hereunder may be enforced regardless of the 


    









existence, validity, enforcement or non-enforcement of any such other guaranties or other obligations or any provision of any applicable law or regulation purporting to prohibit payment by the Borrower of the Guaranteed Obligations in the manner agreed upon between the Borrower and the Administrative Agent and the Lenders.
11.04    Acceleration.  The Company agrees that, as between the Company on the one hand, and the Lenders and the Administrative Agent, on the other hand, the obligations of the Borrower guaranteed under this Article XI may be declared to be forthwith due and payable, or may be deemed automatically to have been accelerated, as provided in Section 8.02 hereof for purposes of this Article XI, notwithstanding any stay, injunction or other prohibition (whether in a bankruptcy proceeding affecting the Borrower or otherwise) preventing such declaration as against the Borrower and that, in the event of such declaration or automatic acceleration, such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Company for purposes of this Article XI.
11.05    Marshaling; Reinstatement.  None of the Lenders nor the Administrative Agent nor any Person acting for or on behalf of the Lenders or the Administrative Agent shall have any obligation to marshal any assets in favor of the Company or against or in payment of any or all of the Guaranteed Obligations.  If the Company or any other guarantor of all or any part of the Guaranteed Obligations makes a payment or payments to any Lender or the Administrative Agent, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to the Company or any other guarantor or any other Person, or their respective estates, trustees, receivers or any other party, including, without limitation, the Company, under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the part of the Guaranteed Obligations which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the time immediately preceding such initial payment, reduction or satisfaction.
11.06    Termination Date.  This Guaranty is a continuing guaranty and shall remain in effect until the later of (a) the date upon which no Commitment hereunder, Loan or other Obligation hereunder shall remain unpaid or unsatisfied (other than contingent Obligations to the extent no claim giving rise thereto has been asserted) and (b) the date on which all of the Guaranteed Obligations have been paid in full in cash, subject to the proviso in Section 11.01(a).
11.07    Subordination of Intercompany Indebtedness.  The Company agrees that any and all claims the Company against any other Loan Party with respect to any “Intercompany Indebtedness” (as hereinafter defined) shall be subordinate and subject in right of payment to the prior payment, in full and in cash, of all Obligations and Hedging Obligations under Hedging Arrangements entered into with the Lenders or any of their Affiliates (“Designated Hedging Agreements”); provided that, and not in contravention of the foregoing, so long as no Event of Default has occurred and is continuing the Company may make loans to and receive payments in the ordinary course with respect to such Intercompany Indebtedness from another Loan Party to the extent not prohibited by the terms of this Agreement and the other Loan Documents.  Notwithstanding any right of the Company to ask, demand, sue for, take or receive any payment 


    









from any other Loan Party, all rights, liens and security interests of the Company, whether now or hereafter arising and howsoever existing, in any assets of any other Loan Party shall be and are subordinated to the rights of the holders of the Obligations and the Administrative Agent in those assets.  The Company shall not have any right to possession of any such asset or to foreclose upon any such asset, whether by judicial action or otherwise, unless and until all of the Obligations (other than contingent indemnity obligations) and the Hedging Obligations under Designated Hedging Agreements shall have been fully paid and satisfied (in cash) and all financing arrangements pursuant to any Loan Document or Designated Hedging Agreement have been terminated.  If all or any part of the assets of any Loan Party, or the proceeds thereof, are subject to any distribution, division or application to the creditors of such Loan Party, whether partial or complete, voluntary or involuntary, and whether by reason of liquidation, bankruptcy, arrangement, receivership, assignment for the benefit of creditors or any other action or proceeding, or if the business of any such Loan Party is dissolved or if substantially all of the assets of any such Loan Party are sold, then, and in any such event (such events being herein referred to as an “Insolvency Event”), any payment or distribution of any kind or character, either in cash, securities or other property, which shall be payable or deliverable upon or with respect to any indebtedness of any such Loan Party to the Company (“Intercompany Indebtedness”) shall be paid or delivered directly to the Administrative Agent for application on any of the Obligations and Hedging Obligations under Designated Hedging Agreements, due or to become due, until such Obligations and Hedging Obligations (other than contingent indemnity obligations) shall have first been fully paid and satisfied (in cash).  Should any payment, distribution, security or instrument or proceeds thereof be received by the Company upon or with respect to the Intercompany Indebtedness after an Insolvency Event prior to the satisfaction of all of the Obligations (other than contingent indemnity obligations) and Hedging Obligations under Designated Hedging Agreements and the termination of all financing arrangements pursuant to any Loan Document and or Designated Hedging Agreements, the Company shall receive and hold the same in trust, as trustee, for the benefit of the holders of the Obligations and such Hedging Obligations and shall forthwith deliver the same to the Administrative Agent, for the benefit of such Persons, in precisely the form received (except for the endorsement or assignment of the Company where necessary), for application to any of the Obligations and such Hedging Obligations, due or not due, and, until so delivered, the same shall be held in trust by the Company as the property of the holders of the Obligations and such Hedging Obligations.  If the Company fails to make any such endorsement or assignment to the Administrative Agent, the Administrative Agent or any of its officers or employees are irrevocably authorized to make the same.  The Company agrees that until the Obligations (other than the contingent indemnity obligations) and such Hedging Obligations have been paid in full (in cash) and satisfied and all financing arrangements pursuant to any Loan Document or any Designated Hedging Agreement have been terminated, the Company will not assign or transfer to any Person (other than the Administrative Agent) any claim the Company has or may have against any other Loan Party.
[Remainder Of This Page Intentionally Blank]


    












IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
CHICAGO BRIDGE & IRON COMPANY N.V., as the Company
By:  CHICAGO BRIDGE & IRON COMPANY B.V., its Managing Director


By:    
Name:    
Title:    













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


By:    
Name:    
Title:    


    











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


By:    
Name:
Title:


    











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




By:    
Name:
Title:


    











CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender 




By:    
Name:
Title:




By:    
Name:
Title:


    











COMPASS BANK, as a Lender 




By:    
Name:
Title:


    











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




By:    
Name:
Title:




    











BNP PARIBAS, as a Lender 




By:    
Name:
Title:






By:    
Name:
Title:




    











BANK OF MONTREAL, as a Lender 




By:    
Name:
Title:




    











HSBC BANK USA, NATIONAL ASSOCIATION, as a Lender 




By:    
Name:
Title:




    











FIFTH THIRD BANK, as a Lender 




By:    
Name:
Title:




    











SUMITOMO MITSUI BANKING CORPORATION, as a Lender 




By:    
Name:
Title:




    











LLOYDS BANK PLC, as a Lender 




By:    
Name:
Title:




By:    
Name:
Title:




    











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




By:    
Name:
Title:




By:    
Name:
Title:




    











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




By:    
Name:
Title:




By:    
Name:
Title:




    











REGIONS BANK, as a Lender 




By:    
Name:
Title:




    











RIYAD BANK, HOUSTON AGENCY, as a Lender 




By:    
Name:
Title:




By:    
Name:
Title:




    











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




By:    
Name:
Title:




By:    
Name:
Title:




    











HUA NAN COMMERCIAL BANK, LTD. NEW YORK AGENCY, as a Lender 




By:    
Name:
Title:




    











THE STANDARD BANK OF SOUTH AFRICA LIMITED, as a Lender 




By:    
Name:
Title:




    











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




By:    
Name:
Title:




    











SUNTRUST BANK, as a Lender 




By:    
Name:
Title:




    











BOKF, NA DBA BANK OF TEXAS, as a Lender 




By:    
Name:
Title:




    











CITIBANK, N.A., as a Lender 




By:    
Name:
Title:




    











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




By:    
Name:
Title:




By:    
Name:
Title:




    











MIZUHO BANK, LTD., as a Lender 




By:    
Name:
Title:




    











DBS BANK LTD., as a Lender 




By:    
Name:
Title:




    











STANDARD CHARTERED BANK, as a Lender 




By:    
Name:
Title:




By:    
Name:
Title:




    











UNICREDIT BANK AG, NEW YORK BRANCH, as a Lender 




By:    
Name:
Title:




    











THE BANK OF NOVA SCOTIA, as a Lender 




By:    
Name:
Title:




    











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




By:    
Name:
Title:




By:    
Name:
Title:




    











SANTANDER BANK, N.A., as a Lender 




By:    
Name:
Title:




    











NBAD AMERICAS N.V., as a Lender 




By:    
Name:
Title:




By:    
Name:
Title:




    











THE NORTHERN TRUST COMPANY, as a Lender 




By:    
Name:
Title:




    











AMEGY BANK NATIONAL ASSOCIATION, as a Lender 




By:    
Name:
Title:




    











E.SUN COMMERCIAL BANK, LTD., LOS ANGELES, as a Lender 




By:    
Name:
Title:








    












ANNEX II


EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE


Financial Statement Date:              , ____
		
	To:
	Bank of America, N.A., as Administrative Agent


Ladies and Gentlemen:


Reference is made to that certain Term Loan Agreement, dated as of July 8, 2015 (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Chicago Bridge & Iron Company N.V., a corporation organized under the laws of The Kingdom of the Netherlands (the “Company”), Chicago Bridge & Iron Company (Delaware), a Delaware corporation (the “Borrower”), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent.


The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the                              of the Company, and that, in such capacity, he/she is authorized to execute and deliver this Certificate to the Administrative Agent on the behalf of the Company, and that:


[Use following paragraph 1 for fiscal year-end financial statements]


1.    The Company has delivered the year-end audited financial statements required by Section 6.01(b) of the Agreement for the fiscal year of the Company ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section.


[Use following paragraph 1 for fiscal quarter-end financial statements]


1.    The Company has delivered the unaudited financial statements required by Section 6.01(a) of the Agreement for the fiscal quarter of the Company ended as of the above date.  Such financial statements fairly present the consolidated financial condition, results of operations and cash flows of the Company and its Subsidiaries in accordance with Agreement Accounting Principles as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes.


2.    The undersigned has reviewed the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition of the Company during the accounting period covered by such financial statements.


3.    The financial covenant analyses and information set forth on Schedules 1, 2 and 3 attached hereto are true and accurate on and as of the date of this Certificate.


C - 1    
Form of Compliance Certificate









IN WITNESS WHEREOF, the undersigned has executed this Certificate as of             ,         .
CHICAGO BRIDGE & IRON COMPANY N.V.


		
	By:
	Chicago Bridge & Iron Company B.V., its Managing Director 




By:      
Name:      
Title:      








C - 2    
Form of Compliance Certificate










For the Quarter/Year ended ___________________ (“Statement Date”)
SCHEDULE 1 
to the Compliance Certificate 
($ in 000’s)
		
	I.
	Section 7.18(a) – Maximum Leverage Ratio.




		
	A.
	Adjusted Indebtedness at Statement Date:    $    


B.    EBITDA (see Schedule 2) for four consecutive fiscal quarters
ending on above date (“Subject Period”):    $    
		
	C.
	Leverage Ratio (Line I.A  ̧ Line I.B):    to 1.00


Maximum permitted:                
	
		
	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






		
	II.
	Section 7.18(b) – Minimum Fixed Charge Coverage Ratio.




A.    Consolidated Net Income Available for Fixed Charges:
1.    Consolidated Net Income for Subject Period:    $    
2.    Provision for income taxes for Subject Period:    $    
3.    Consolidated Fixed Charges for Subject Period:    $    
4.    Dividends and distributions received in cash during Subject
Period:                $    
5.    Retention bonuses paid to officers, directors and employees
of the Company and its Subsidiaries in connection with the
Transaction (not to exceed $25,000,000) for Subject Period:    $    
6.    Fees, charges and expenses incurred in connection with the
Transaction, the transactions related thereto, and any related
issuance of Indebtedness or equity, whether or not
successful, for Subject Period:    $    


C - 3    
Form of Compliance Certificate









7.    Restructuring and integration charges, fees and expenses
incurred in connection with the Transaction during Subject
Period:                $    
8.    Non-cash compensation expenses for management or
employees for Subject Period:    $    
9.    Expenses incurred in connection with the Shaw Acquisition
and relating to termination and severance as to, or relocation 
of, officers, directors and employees (not exceeding
$110,000,000) for Subject Period:    $    
10.    Equity earnings booked or recognized by the Company or
any of its Subsidiaries from Eligible Joint Ventures 
for Subject Period:2        $    
11.    Consolidated Net Income Available for Fixed Charges
(Lines II.A1 + 2 + 3 + 4 + 5 + 6 + 7 + 8 + 9 + 10) 
for Subject Period:            $    
B.    Consolidated Fixed Charges for Subject Period:    $    
1.    Consolidated Long-Term Lease Rentals for Subject Period:    $    
2.    Consolidated Interest Expense for the Subject Period:    $    
3.    Consolidated Fixed Charges for Subject Period 
(Lines II.B1 + 2):            $    
C.    Fixed Charge Coverage Ratio (Line II.A11  ̧ Line II.B3):        to 1.00
		
	Minimum required:
	1.75 to 1.00


______________________________________ 
2 Not to exceed 15% (or such lower percentage as may be set forth in the Note Purchase Agreements) of EBITDA of the Company pursuant to clauses (a) through (i) of the definition thereof for the period of twelve (12) prior consecutive months.


		
	III.
	Section 7.18(c) – Minimum Consolidated Net Worth.




		
	A.
	Consolidated Net Worth at Statement Date:    $    


		
	B.
	85% of the actual net worth of the Company and its Subsidiaries as of December 31, 2016 (after giving effect to Project Jazz write-downs):    $    


		
	C.
	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:    $    
		
	D.
	One-time non-cash tax expense resulting from the tax gain on the Project Jazz sale, not to exceed $150,000,000:    $    




C - 4    
Form of Compliance Certificate









		
	E.
	Minimum Consolidated Net Worth  
(Lines III.B + III.C – III.D):         $    


		
	F.
	Minimum amount of Consolidated Net Worth that the Company


shall be required to maintain under any instrument, agreement or
indenture pertaining to any Material Indebtedness:    $    
		
	G.
	Greater of Line III.E and Line III.F:    $    


		
	H.
	Excess (deficient) for covenant compliance (Line III.A – III.G):    $    




		
	IV.
	Section 7.18(d) – Maximum Senior Secured Leverage Ratio (if applicable)




		
	A.
	Senior Secured Indebtedness at Statement Date:    $    


		
	B.
	EBITDA (see Schedule 2) for 


Subject Period:                $    
		
	C.
	Senior Secured Leverage Ratio (Line IV.A  ̧ Line IV.B):        to 1.00


Maximum permitted:                
	
		
	Four Fiscal Quarters Ending
	Maximum Senior Secured Leverage Ratio

	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 - 5    
Form of Compliance Certificate











For the Quarter/Year ended ___________________(“Statement Date”)


SCHEDULE 2 
to the Compliance Certificate 
($ in 000’s)


EBITDA 
(in accordance with the definition of EBITDA 
as set forth in the Agreement)


	
						
	

EBITDA
	Quarter 
Ended 
__________
	Quarter 
Ended 
__________
	Quarter 
Ended 
__________
	Quarter 
Ended 
__________
	Twelve  
Months 
Ended 
__________

	(i)(1) Consolidated 
Net Income
	 
	 
	 
	 
	 

	(2)   +   Interest Expense
	 
	 
	 
	 
	 

	(3)   +   charges against income for foreign, federal, state and local taxes to the extent deducted
	 
	 
	 
	 
	 

	(4)   +   non-recurring non-cash charges (excluding any charge that becomes, or is expected to become, a cash charge) to the extent deducted
	 
	 
	 
	 
	 

	(5)   +   extraordinary losses to the extent deducted
	 
	 
	 
	 
	 

	(6)   -   non-recurring non-cash credits to the extent added
	 
	 
	 
	 
	 

	(7)   -   extraordinary gains to the extent added
	 
	 
	 
	 
	 

	(ii)   +   depreciation expense to the extent deducted
	 
	 
	 
	 
	 

	(iii)   +   amortization expense to the extent deducted
	 
	 
	 
	 
	 

	(iv)   +   non-cash compensation expenses for management or employees to the extent deducted
	 
	 
	 
	 
	 






C - 6    
Form of Compliance Certificate









	
						
	

EBITDA
	Quarter 
Ended 
__________
	Quarter 
Ended 
__________
	Quarter 
Ended 
__________
	Quarter 
Ended 
__________
	Twelve  
Months 
Ended 
__________

	(v)   +   to the extent not already included, dividends distributions actually received in cash received from Persons other than Subsidiaries
	 
	 
	 
	 
	 

	(vi)   + retention bonuses paid in connection with the Transaction not to exceed $25,000,000
	 
	 
	 
	 
	 

	(vii)   + charges, fees and expenses incurred in connection with the Transaction, the transactions related thereto, and any related issuance of Indebtedness or equity, whether or not successful
	 
	 
	 
	 
	 

	(viii)   + charges, fees and expenses incurred in connection with restructuring and integration activities in connection with the Transaction, including in connection with the closures of certain facilities and termination of leases
	 
	 
	 
	 
	 

	(ix)   + expenses incurred in connection with the Shaw Acquisition and relating to termination and severance as to, or relocation of, officers, directors and employees not exceeding $110,000,000
	 
	 
	 
	 
	 

	(x)   + equity earnings booked or recognized by the Company or any of its Subsidiaries from Eligible Joint Ventures
	 
	 
	 
	 
	 

	=   Consolidated EBITDA
	 
	 
	 
	 
	 








C - 7    
Form of Compliance Certificate









______________________________________ 
3 Not to exceed 15% (or such lower percentage as may be set forth in the Note Purchase Agreements) of EBITDA of the Company pursuant to clauses (a) through (i) of this definition for the period of twelve (12) prior consecutive months.




C - 8    
Form of Compliance Certificate










SCHEDULE 3 

Eligible Joint Ventures


[INCLUDE LISTING OF ELIGIBLE JOINT VENTURES]








C - 9    
Form of Compliance Certificate