8-k - sec€™s telephone number, including area code: 31 70 373 2010 n.a. (former name or former...
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0001193125-17-258687.txt : 201708150001193125-17-258687.hdr.sgml : 2017081520170815170110ACCESSION NUMBER:0001193125-17-258687CONFORMED SUBMISSION TYPE:8-KPUBLIC DOCUMENT COUNT:9CONFORMED PERIOD OF REPORT:20170809ITEM INFORMATION:Entry into a Material Definitive AgreementITEM INFORMATION:Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a RegistrantITEM INFORMATION:Financial Statements and ExhibitsFILED AS OF DATE:20170815DATE AS OF CHANGE:20170815
FILER:
COMPANY DATA:COMPANY CONFORMED NAME:CHICAGO BRIDGE & IRON CO N VCENTRAL INDEX KEY:0001027884STANDARD INDUSTRIAL CLASSIFICATION:CONSTRUCTION SPECIAL TRADE CONTRACTORS [1700]IRS NUMBER:000000000STATE OF INCORPORATION:P7FISCAL YEAR END:1231
FILING VALUES:FORM TYPE:8-KSEC ACT:1934 ActSEC FILE NUMBER:001-12815FILM NUMBER:171034461
BUSINESS ADDRESS:STREET 1:PRINSES BEATRIXLAAN 35CITY:THE HAGUESTATE:P7ZIP:2595 AKBUSINESS PHONE:31-70-373-2010
MAIL ADDRESS:STREET 1:PRINSES BEATRIXLAAN 35CITY:THE HAGUESTATE:P7ZIP:2595 AK
8-K1d432925d8k.htm8-K
8-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENTREPORT
Pursuant to Section13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): August9, 2017
CHICAGO BRIDGE& IRON COMPANY N.V.
(Exact name of registrant as specified in its charter)
The Netherlands
(State or Other Jurisdiction ofIncorporation or Organization)
1-1281598-0420223
(CommissionFile Number)
(I.R.S. Employer
Identification No.)
Prinses Beatrixlaan 35
2595 AK The Hague
The Netherlands
N.A.
(Address of Principal Executive Offices)(Zip Code)
Registrants telephone number, including area code: 31 70 373 2010
N.A.
(Former name orformer address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filingobligation of the registrant under any of the following provisions:
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR 230.405) or Rule12b-2 of the Securities Exchange Act of 1934 (17 CFR 240.12b-2)
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new orrevised financial accounting standards provided pursuant to Section13(a) of the Exchange Act.
Item1.01Entry into a Material Definitive Agreement.
As previously disclosed in our Form 10-Q for the quarterended June30, 2017 filed with the Securities and Exchange Commission on August9, 2017 (the Form 10-Q), as of June30, 2017, Chicago Bridge& Iron Company N.V. (CB&I, we orus) would not have been in compliance with the financial covenants with respect to the following debt arrangements and instruments:
our five-year, $1.15 billion committed revolving credit facility (the Revolving Facility), with Bank of America N.A. (BofA), as administrative agent, and BNP Paribas Securities Corp, BBVACompass, Crdit Agricole Corporate and Investment Bank (Crdit Agricole) and TD Securities, each as syndication agents;
our five-year, $800 million committed revolving credit facility (the Second Revolving Facility), with BofA, as administrative agent, and BNP Paribas Securities Corp., BBVA Compass, Crdit Agricole andBank of Tokyo Mitsubishi UFJ, each as syndication agents;
our five-year, $500 million term loan (the Second Term Loan and collectively, with Committed Facilities, Bank Facilities), with BofA as administrative agent;
our senior notes (series A, B, C and D) totaling $800 million in aggregate principal amount outstanding as of June30, 2017 (the Senior Notes); and
our senior notes totaling $200 million in aggregate principal amount outstanding as of June30, 2017 (the Second Senior Notes and, together with the Senior Notes, the Notes, and, togetherwith the Revolving Facility, the Second Revolving Facility, the Second Term Loan and the Senior Notes, the Senior Facilities).
Accordingly, as previously disclosed in the Form 10-Q, effective August9, 2017 (the Effective Date), we entered into certain amendments (theAugust 9 Amendments) that waive noncompliance with our existing covenants under the Senior Facilities as of June30, 2017 and certain other defaults and events of default. In addition, the August9 Amendments:
Eliminate our minimum net worth covenant required by our previous amendments to the Bank Facilities;
Require minimum levels of trailing 12-month earnings before interest, taxes, depreciation and amortization (EBITDA), as defined by the amendments, as follows: $500.0 million at September30, 2017;$550.0 million at December31, 2017; $500.0 million at March31, 2018; $450.0 million at June30, 2018 and September30, 2018; and $425.0 million at December31, 2018 and thereafter (Minimum EBITDA). Trailing12-month EBITDA for purposes of determining compliance with the Minimum EBITDA covenant will be adjusted to exclude: an agreed amount attributable to any restructuring or integration charges during the third and fourth quarters of 2017; an agreedamount attributable to previous charges on certain projects which occurred during the first and second quarters of 2017; and an agreed amount for potential future charges for the same projects if they were to be incurred during the third and fourthquarters of 2017 (collectively, the EBITDA Addbacks);
Provide for the replacement of our previous maximum leverage ratio and minimum fixed charge ratio with a new maximum leverage ratio of 1.75 (Maximum Leverage Ratio) and new minimum fixed charge coverageratio of 2.25 (Minimum Fixed Charge Coverage Ratio), which are temporarily suspended and will resume as of March31, 2018. Trailing 12-month EBITDA for purposes of determining compliance with the Maximum Leverage Ratio and consolidatednet income for purposes of determining compliance with the Minimum Fixed Charge Coverage Ratio will be adjusted for the EBITDA Addbacks;
Require us to execute on our plan to market and sell our Technology operations (primarily comprised of our Technology reportable segment) and Engineered Products operations (representing a portion of our FabricationServices reportable segment) by December27, 2017 (the Technology Sale), with an extension of up to 60 days at the discretion of the holders of a majority of the outstanding Notes and at the discretion of the administrative agentsof the Bank Facilities;
Require us to maintain a minimum aggregate availability under our Revolving Facility and Second Revolving Facility, including borrowings and letters of credit, of $150.0 million at all times from the Effective Datethrough the date of the Technology Sale, and $250.0 million thereafter. Our amendments require the net cash proceeds from the Technology Sale be used to repay our Senior Facilities (Mandatory Repayment Amount), with the repayment of theSenior Notes and the Second Senior Notes to include certain make-whole payments. Further, our aggregate capacity under the Revolving Facility and Second Revolving Facility will be reduced by seventy percent (70%)of the portion of the MandatoryRepayment Amount allocable to the Revolving Facility and Second Revolving Facility, upon closing the Technology Sale and certain other mandatory prepayment events;
Limit the amount of certain of our funded indebtedness to $3.0 billion prior to the Technology Sale and $2.9 billion thereafter, in each case, subject to reduction pursuant to scheduled repayments and mandatoryprepayments thereof (but, with respect to the Revolving Facility and Second Revolving Facility, only to the extent the commitments have been reduced by such prepayments) made by us after the Effective Date;
Prohibit mergers and acquisitions, open-market share repurchases and dividend payments and certain inter-company transactions;
Replace the previous financial letter of credit sublimits for our Revolving Facility and Second Revolving Facility with a $100.0 million letter of credit sublimit for each;
Adjust the interest rate on borrowings under the Committed Facilities to either prime rate plus 4.00% or LIBOR plus 5.00%;
Increase the interest rate on borrowings under the Second Term Loan to prime rate plus 4.00% or LIBOR plus 5.00%;
Increase our fixed interest rate on the Notes by an incremental 2.50% over the rates in effect immediately prior to such amendment; and
Established (i) a requirement under the Notes that we maintain our credit profile, which if not maintained will result in an incremental annual cost of up to 1.50% of the outstanding balance under the Notes and (ii) arequirement under the Notes that we maintain a leverage ratio, as defined by the amendments, which if not maintained, could result in an incremental annual cost of up to 1.00% (or 0.50% depending on our leverage level) of the outstanding balanceunder the Notes; provided that the incremental annual cost related to our credit profile and leverage ratio cannot exceed 2.00% per annum.
As previously disclosed in the Form 10-Q, based on our forecasted EBITDA and cash flows, we project that future compliance with certain financial and othercovenants under the Senior Facilities subsequent to December 31, 2017 will require the completion of the Technology Sale and application of the associated net proceeds consistent with our expectations. The Technology Sale is subject to a number offactors and conditions outside of our control, and there can be no guarantee that the sale will be completed, or if completed, that the sale will generate the net cash proceeds required for us to remain in compliance with our financial and othercovenants. See the Form 10-Q for further discussion.
The foregoing description of the August9 Amendments does not purport to be complete and isqualified in its entirety by reference to the complete text of: (1)Amendment No.8 and Waiver, dated as of August9, 2017, to the Credit Agreement, dated as of October28, 2013, filed as Exhibit 10.1 hereto; (2)AmendmentNo.5 and Waiver, dated as of August9, 2017, to Amended and Restated Revolving Credit Agreement, dated as of July8, 2015, filed as Exhibit 10.2 hereto; (3)Amendment No.5 and Waiver, dated as of August9, 2017, tothe Term Loan Agreement, dated as of July8, 2015, filed as Exhibit 10.3 hereto; (4)Seventh Amendment and Waiver, dated as of August9, 2017, to the Note Purchase and Guarantee Agreement dated as of December27, 2012, filed asExhibit 10.4 hereto; and (5)Fifth Amendment and Waiver, dated as of August9, 2017, to the Note Purchase and Guarantee Agreement, dated as of July22, 2015, filed as Exhibit 10.5 hereto; each of which is incorporated by referenceherein.
Item2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information included in Item1.01 of this current report on Form 8-K is incorporated by reference into this Item2.03.
Item9.01.Financial Statements and Exhibits.
(d)Exhibits.
EXHIBIT
NUMBER
DESCRIPTION
10.1Amendment No. 8 and Waiver, dated as of August 9, 2017, to the Credit Agreement, dated as of October 28, 2013, by and among CB&I, Chicago Bridge & Iron Company (Delaware), certain Subsidiaries of CB&I signatory thereto,Bank of America, N.A., as administrative agent and collateral agent, and each the Lenders signatory thereto
10.2Amendment No. 5 and Waiver, dated as of August 9, 2017, to Amended and Restated Revolving Credit Agreement, dated as of July 8, 2015, by and among CB&I, Chicago Bridge & Iron (Delaware), certain subsidiaries of CB&Isignatory thereto, Bank of America, N.A., as administrative agent and collateral agent, and each of the Lenders signatory thereto
10.3Amendment No. 5 and Waiver, dated as of August 9, 2017, to Term Loan Agreement, dated as of July 8, 2015, by and among CB&I, Chicago Bridge & Iron (Delaware), Bank of America, N.A., as administrative agent and collateralagent, and each of the Lenders signatory thereto
10.4Seventh Amendment and Waiver, dated as of August 9, 2017, to the Note Purchase and Guarantee Agreement, dated as of December 27, 2012, by and among CB&I, Chicago Bridge & Iron Company (Delaware), certain Subsidiaries ofCB&I signatory thereto, and each of the noteholders signatory thereto
10.5Fifth Amendment and Waiver, dated as of August 9, 2017, to the Note Purchase and Guarantee Agreement, dated as of July 22, 2015, by and among CB&I, Chicago Bridge & Iron Company (Delaware), certain Subsidiaries of CB&Isignatory thereto, and each of the noteholders signatory thereto
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf bythe undersigned hereunto duly authorized.
CHICAGO BRIDGE & IRON COMPANY N.V.
By:Chicago Bridge & Iron Company B.V.
Its:Managing Director
Date: August 15, 2017
By:
/s/ Michael S. Taff
Michael S. Taff
Managing Director
(President Financial Officer)
INDEX TO EXHIBITS
EXHIBIT
NUMBER
DESCRIPTION
10.1Amendment No. 8 and Waiver, dated as of August 9, 2017, to the Credit Agreement, dated as of October 28, 2013, by and among CB&I, Chicago Bridge & Iron Company (Delaware), certain Subsidiaries of CB&I signatory thereto,Bank of America, N.A., as administrative agent and collateral agent, and each the Lenders signatory thereto
10.2Amendment No. 5 and Waiver, dated as of August 9, 2017, to Amended and Restated Revolving Credit Agreement, dated as of July 8, 2015, by and among CB&I, Chicago Bridge & Iron (Delaware), certain subsidiaries of CB&Isignatory thereto, Bank of America, N.A., as administrative agent and collateral agent, and each of the Lenders signatory thereto
10.3Amendment No. 5 and Waiver, dated as of August 9, 2017, to Term Loan Agreement, dated as of July 8, 2015, by and among the Company, Chicago Bridge & Iron (Delaware), Bank of America, N.A., as administrative agent and collateralagent, and each of the Lenders signatory thereto
10.4Seventh Amendment and Waiver, dated as of August 9, 2017, to the Note Purchase and Guarantee Agreement, dated as of December 27, 2012, by and among CB&I, Chicago Bridge & Iron Company (Delaware), certain Subsidiaries ofCB&I signatory thereto, and each of the noteholders signatory thereto
10.5Fifth Amendment and Waiver, dated as of August 9, 2017, to the Note Purchase and Guarantee Agreement, dated as of July 22, 2015, by and among CB&I, Chicago Bridge & Iron Company (Delaware), certain Subsidiaries of CB&Isignatory thereto, and each of the noteholders signatory thereto
EX-10.12d432925dex101.htmEX-10.1
EX-10.1
Exhibit 10.1
Execution Version
AMENDMENT NO. 8 AND WAIVER TO CREDIT AGREEMENT
This Amendment No.8 and Waiver to Credit Agreement (this Amendment), dated as of August9, 2017, is madeby 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 Initial Borrower), CERTAIN SUBSIDIARIES OF THE COMPANY SIGNATORY HERETO (each a Designated Borrower and, together with the Initial Borrower,collectively the Borrowers and each a Borrower), BANK OF AMERICA, N.A., a national banking association organized and existing under the laws of the United States (Bank ofAmerica), in its capacity as administrative agent for the Lenders and collateral agent for the Secured Bank Creditors (in such capacities, the Administrative Agent and the CollateralAgent, respectively), and each of the Lenders signatory hereto.
W I T N E S S E T H:
WHEREAS, each of the Company, the Borrowers, the Administrative Agent, the Collateral Agent and the Lenders have entered into thatcertain Credit Agreement, dated as of October28, 2013 (as amended by that certain Amendment to Credit Agreement, dated as of June11, 2014, Amendment No.2 to Credit Agreement, dated as of December31, 2014, Amendment No.3to Credit Agreement, dated as of July8, 2015, Amendment No.4 to Credit Agreement, dated as of October27, 2015, Amendment No.5 to Credit Agreement, dated as of February24, 2017, Amendment No.6 and Waiver to CreditAgreement, dated as of May8, 2017, Amendment No.7 to Credit Agreement, dated as of May29, 2017 (Amendment No.7), and as hereby amended and as from time to time furtheramended, 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 CreditAgreement, as amended hereby), pursuant to which the Lenders have made available to the Borrowers a senior revolving credit facility in an original aggregate principal amount of $1,350,000,000; and
WHEREAS, the Company has entered into the Guaranty pursuant to which it has guaranteed certain or all of the obligations of theBorrowers under the Credit Agreement and the other Loan Documents;
WHEREAS, the Company, the Borrowers and certain Subsidiarieshave entered into certain of the Security Instruments to provide collateral as security for the obligations of the Borrowers under the Credit Agreement and the other Loan Documents; and
WHEREAS, the Borrowers have requested that the Administrative Agent, the Collateral Agent and the Lenders agree to amend the CreditAgreement in certain respects and to waive certain Defaults and Events of Default under the Credit Agreement that occurred or may have occurred on or prior to the date hereof, which the Administrative Agent, the Collateral Agent and the Lendersparty hereto are willing to do on the terms and conditions contained in this Amendment;
NOW, THEREFORE, in consideration of thepremises 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 Schedules and Exhibits to Credit Agreement. Subject to the terms and conditions set forthherein, (i)Schedules 1.01A, 1.01B, 1.01C, 7.01, 7.04A, 7.04B and 7.05 to the Credit
Agreement shall be amended such that after giving effect to all such amendments, they shall read in their entirety as set forth on Annex II-1attached hereto and (ii)Exhibit D to the Credit Agreement shall be amended and Exhibits L and M shall be added, such that after giving effect to all such amendments and additions, they shall read in their entirety as setforth on Annex II-2 attached hereto.
3.Waiver. Pursuant toSection10.01 of the Credit Agreement and subject to the terms and conditions hereof, effective as of the date hereof, the Administrative Agent, the Collateral Agent and each Lender party hereto hereby waives any Default orEvent of Default that occurred or may have occurred on or prior to the date hereof under:
(a)Section 8.01(b) of the Credit Agreement, arising as a result of the failure of the Companyand its Subsidiaries to comply with certain requirements of Section6.13(a) of the Credit Agreement and Section16 of Amendment No.7, as described in Annex III attached hereto;provided that such waiver will remain effective only if the Loan Parties deliver to the Collateral Agent the items listed in Annex III attached hereto by the dates specified in such Annex;
(b)Section 8.01(b) of the Credit Agreement, arising as a result of breaches of the lastparagraph of Section7.03 of the Credit Agreement due to the negative pledge provisions set forth in indemnity agreements supporting surety bonds related to Project Jazz;
(c)Section 8.01(b) of the Credit Agreement, arising as a result of the failure of the Company tocomply with the terms of Section7.18 of the Credit Agreement for the fiscal quarter ended June30, 2017;
(d)Section 8.01(d) of the Credit Agreement, arising as a result of the failure of the Company todeliver an Officers Certificate required by Section6.02(a) of the Credit Agreement, providing, among other things, notice of the other Defaults and Events of Default described in this Section; and
(e)Section 8.01(e) of the Credit Agreement, arising as a result of the occurrence of a defaultor event of default under the NPA Notes (each, an NPA Note Default) that is being waived pursuant to the NPA Amendments (as defined below).
The waivers set forth in this Amendment are limited to the extent specifically described above and shall in no way serve to waive any NPA Note Default orcompliance with Section6.02(a), 6.13(a), 7.03 or 7.18 of the Credit Agreement or Section16 of Amendment No.7, or any other terms, covenants or provisions of the CreditAgreement or any other Loan Document, or any obligations of the Borrowers, other than as expressly set forth above.
4.Effectiveness; Conditions Precedent. This Amendment, the amendments to the Credit Agreement provided inSections 1 and 2 hereof and the waiver provided in Section3 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 theCompany, each Borrower, each Guarantor, the Collateral Agent and the Required Lenders, which counterparts may be delivered by facsimile or other electronic means (e.g. .pdf or .tif).
(b)The Administrative Agent shall have received a copy of an amendment to the Existing Revolving CreditAgreement and the Existing 2015 Term Loan Credit Agreement, in each case, in the form previously provided to it and in form and substance reasonably satisfactory to the Administrative Agent, duly executed by the requisite parties thereto.
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(c)The Administrative Agent shall have received a copy ofan amendment to each Note Purchase Agreement (the NPA Amendments), which shall include a waiver of the NPA Note Defaults, in each case, in the form previously provided to it and in form and substance reasonably satisfactoryto the Administrative Agent, duly executed by the requisite parties thereto.
(d)The AdministrativeAgent shall have received resolutions of each Dutch Loan Party, UK Loan Party and U.S. Loan Party authorizing this Amendment and the other Loan Documents to which such Person is a party executed in connection with this Amendment.
(e)The Administrative Agent or Collateral Agent, as applicable, shall have received each of theagreements, instruments and other documents (each in form and substance reasonably acceptable to the Administrative Agent or Collateral Agent, as applicable) set forth on Annex IV to Amendment No.7, other than the items listed onAnnex III attached hereto.
(f)The Administrative Agent shall have received a copy of theaddendum to the existing engagement letter between FTI Consulting and the Company setting forth the scope of the Strategic Review, in form and substance reasonably satisfactory to the Administrative Agent.
(g)(i) The Company shall have paid any fees required to be paid on the date hereof pursuant to thatcertain Fee Letter dated as of August9, 2017 among the Company, the Initial Borrower, Bank of America and Merrill Lynch, Pierce, Fenner& Smith Incorporated, (ii)an amendment fee shall have been received by the AdministrativeAgent for each Lender executing this Amendment by 3:00 p.m. (New York time) on August9, 2017 for the account of such Lender, equal to 0.50% (50 bps) multiplied by each such Lenders Commitments as of the date hereof and(iii)all other fees and expenses of the Administrative Agent (including the fees and expenses of counsel and the financial advisor to the Administrative Agent) to the extent due and payable under Section10.04(a) of the Credit Agreementand for which invoices have been presented on or before the date that is one day prior to the date 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 feesand expenses).
For purposes of determining compliance with the conditions set forth in this Section4, each Lender that has signed this Amendmentshall 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 such Lender unless the Administrative Agentshall have received noticed from such Lender prior to the date hereof specifying its objection thereto.
5.Representations and Warranties. In order to induce the Administrative Agent, the Collateral Agent and theLenders to enter into this Amendment, the Company represents and warrants to the Administrative Agent, the Collateral Agent and the Lenders as follows:
(a)The representations and warranties made by the Company in Article V of the Credit Agreementare 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 ofthe date hereof, except to the extent that such representations and warranties expressly relate to an earlier date;
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(b)This Amendment has been duly authorized, executed anddelivered by the Company and the Borrowers 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 ofcreditors, and subject to equitable principles of general application; and
(c)After giving effectto the NPA Amendments, this Amendment and the corresponding amendments to the Existing Revolving Credit Agreement and the Existing 2015 Term Loan Credit Agreement, no Default or Event of Default has occurred and is continuing, or would result fromthe effectiveness of this Amendment.
6.Equalization; Excess Cash. By no later than 4:00 p.m. (New Yorktime) on August14, 2017:
(a)the Company shall prepay Loans and, as applicable, loansadvanced under the Existing Revolving Credit Agreement in such amounts as are required to ensure that (i)the Total Outstandings under the Credit Agreement as a proportion of the Aggregate Commitments thereunder are equal to (ii)theTotal Outstandings under the Existing Revolving Credit Agreement as a proportion of the Aggregate Commitments thereunder;
(b)the Company and its Subsidiaries shall have applied any available Excess Cash as specified inSection2.05(c) of the Credit Agreement; and
(c)the Administrative Agentshall have received a certificate of a Financial Officer of the Company certifying that (i)the Company is in compliance with Section7.18(c) of the Credit Agreement and (ii)the Company and its Subsidiaries haveno Excess Cash.
The Companys failure to comply with the terms of this Section shall be an immediate Event of Default pursuant toSection8.01(b) of the Credit Agreement.
7.Consent of the Guarantors. EachGuarantor 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 eachGuarantors 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 applicableGuarantor in accordance with its terms.
8.Entire Agreement. This Amendment, together with all the LoanDocuments (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 amongthe 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 inrelation 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 Section10.01 of theCredit Agreement.
9.Full Force and Effect of Credit Agreement. Except as hereby specifically amended,waived, modified or supplemented, the Credit Agreement (and each prior amendment thereto) 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 respectiveterms.
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10.Governing Law. This Amendment shall in all respects be governedby, and construed in accordance with, the laws of the State of New York, and shall be further subject to the provisions of Sections 10.14 and 10.15 of the Credit Agreement.
11.Enforceability. Should any one or more of the provisions of this Amendment be determined to be illegal orunenforceable as to one or more of the parties hereto, all other provisions nevertheless shall remain effective and binding on the parties hereto.
12.References. All references in any of the Loan Documents to the Credit Agreement shall mean theCredit Agreement, as amended hereby. This Amendment shall constitute a Loan Document for all purposes of the Loan Documents.
13.Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the Company, theBorrowers, the Administrative Agent, the Collateral 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 inSection10.06 of the Credit Agreement.
14.No Novation. Neither the execution anddelivery 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.
15.Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed anoriginal 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 facsimile or other electronic means(e.g. .pdf or .tif) shall be effective as delivery of a manually executed counterpart of this Amendment.
16.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 agrandfathered obligation within the meaning of Treasury Regulation Section1.1471-2(b)(2)(i).
17.Posting-Closing Matters. The Company covenants and agrees that promptly, and in any event within the timeallotted to the Company pursuant to Annex IV, deliver, or cause to be delivered, to the Administrative Agent or Collateral Agent, as applicable, each of the agreements, instruments and other documents (each in form and substance reasonablyacceptable to the Administrative Agent or Collateral Agent, as applicable) set forth on Annex IV, or otherwise satisfy, those items set forth on Annex IV.
18.Release. EACH OF THE COMPANY AND THE BORROWERS, ON ITS OWN BEHALF AND ON BEHALF OF THE OTHER LOAN PARTIES,ITS AND THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, PREDECESSORS, SUCCESSORS, LEGAL REPRESENTATIVES AND ASSIGNS (EACH OF THE FOREGOING, COLLECTIVELY, THE RELEASING PARTIES), HEREBY ACKNOWLEDGES AND STIPULATES THAT AS OF THEDATE OF THIS AMENDMENT, NONE OF THE RELEASING PARTIES HAS ANY CLAIMS OR CAUSES OF ACTION OF ANY KIND WHATSOEVER RELATED TO THE CREDIT AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY AGAINST, OR ANY GROUNDS OR CAUSE FOR
5
REDUCTION, MODIFICATION, SET ASIDE OR SUBORDINATION OF THE INDEBTEDNESS OR ANY LIENS OR SECURITY INTERESTS OF, THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE LENDERS, THE L/C ISSUERS, THEOTHER SECURED BANK CREDITORS, OR ANY OF THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, OR REPRESENTATIVES, OR AGAINST ANY OF THEIR RESPECTIVE PREDECESSORS, SUCCESSORS OR ASSIGNS (EACH OF THE FOREGOING, COLLECTIVELY, THERELEASED PARTIES). IN PARTIAL CONSIDERATION FOR THE AGREEMENT OF THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE LENDERS AND THE L/C ISSUERS PARTY HERETO TO ENTER INTO THIS AMENDMENT, EACH OF THE RELEASING PARTIESHEREBY UNCONDITIONALLY WAIVES AND FULLY AND FOREVER RELEASES, REMISES, DISCHARGES AND HOLDS HARMLESS THE RELEASED PARTIES FROM ANY AND ALL CLAIMS, CAUSES OF ACTION, DEMANDS AND LIABILITIES OF ANY KIND WHATSOEVER, WHETHER DIRECT OR INDIRECT, FIXED ORCONTINGENT, LIQUIDATED OR UNLIQUIDATED, DISPUTED OR UNDISPUTED, KNOWN OR UNKNOWN, RELATED TO THE CREDIT AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY, WHICH ANY OF THE RELEASING PARTIES HAS OR MAY ACQUIRE IN THE FUTURE RELATING IN ANY WAY TOANY EVENT, CIRCUMSTANCE, ACTION OR FAILURE TO ACT AT ANY TIME ON OR PRIOR TO THE DATE OF THIS AMENDMENT, SUCH WAIVER, RELEASE AND DISCHARGE BEING MADE WITH FULL KNOWLEDGE AND UNDERSTANDING OF THE CIRCUMSTANCES AND EFFECTS OF SUCH WAIVER, RELEASE ANDDISCHARGE, AND AFTER HAVING CONSULTED LEGAL COUNSEL OF ITS OWN CHOOSING WITH RESPECT THERETO. THIS SECTION IS IN ADDITION TO ANY OTHER RELEASE OF ANY OF THE RELEASED PARTIES BY THE RELEASING PARTIES AND SHALL NOT IN ANY WAY LIMIT ANY OTHER RELEASE,COVENANT NOT TO SUE OR WAIVER BY THE RELEASING PARTIES IN FAVOR OF THE RELEASED PARTIES.
[Signature pages follow.]
6
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be made, executedand delivered by their duly authorized officers as of the day and year first above written.
CHICAGO BRIDGE& IRON COMPANY (DELAWARE), as the Initial Borrower
By:
/s/ Luciano Reyes
Name:Luciano Reyes
Title:Treasurer
CB&I LLC, as a Designated Borrower
By:CB&I HoldCo, LLC, its Sole Member
By:
/s/ Regina N. Hamilton
Name:Regina N. Hamilton
Title:Secretary
CBI SERVICES, LLC, as a Designated Borrower
By:CB&I HoldCo, LLC, its Sole Member
By:
/s/ Regina N. Hamilton
Name:Regina N. Hamilton
Title:Secretary
CHICAGO BRIDGE& IRON COMPANY B.V., as a Designated Borrower
By:
/s/ Michael S. Taff
Name:Michael S. Taff
Title:Managing Director
CHICAGO BRIDGE& IRON COMPANY, as a Designated Borrower
By:
/s/ Luciano Reyes
Name:Luciano Reyes
Title:Vice President and Treasurer
Chicago Bridge & Iron
Amendment No. 8 to Credit 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. 8 to Credit 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/ Luciano Reyes
Name:Luciano Reyes
Title:Treasurer
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. 8 to Credit Agreement
Signature Page
ASIA PACIFIC SUPPLY CO.
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 LLC
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. 8 to Credit Agreement
Signature Page
HBI HOLDINGS, LLC
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, LLC
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. 8 to Credit Agreement
Signature Page
MATRIX MANAGEMENT SERVICES, LLC
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:
/s/ Raymond Buckley
Name:Raymond Buckley
Title:Director
Chicago Bridge & Iron
Amendment No. 8 to Credit 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/ Duncan Wigney
Name:Duncan Wigney
Title:Director
CB&I HOLDINGS (U.K.) LIMITED
By:
/s/ Duncan Wigney
Name:Duncan Wigney
Title:Director
CB&I UK LIMITED
By:
/s/ Duncan Wigney
Name:Duncan Wigney
Title:Director
Chicago Bridge & Iron
Amendment No. 8 to Credit 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. 8 to Credit 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. Albanese, Jr.
Name:John R. Albanese, Jr.
Title:Director
LEALAND FINANCE COMPANY B.V.
By:
/s/ Michael S. Taff
Name:Michael S. Taff
Title:Managing Director
CB&I FINANCE COMPANY LIMITED
By:
/s/ Jan Broekman
Name:Jan Broekman
Title:Authorized Signatory
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. 8 to Credit 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. 8 to Credit Agreement
Signature Page
WOODLANDS INTERNATIONAL INSURANCE COMPANY
By:
/s/ Timothy Moran
Name:Timothy Moran
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/ Gregory L. Guse
Name:Gregory L. Guse
Title:Director
Chicago Bridge & Iron
Amendment No. 8 to Credit 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
Chicago Bridge & Iron
Amendment No. 8 to Credit Agreement
Signature Page
CBI 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
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. 8 to Credit 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
CB&I HOLDCO, LLC
By:
/s/ Regina N. Hamilton
Name:Regina N. Hamilton
Title:Secretary
Chicago Bridge & Iron
Amendment No. 8 to Credit Agreement
Signature Page
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.,
asAdministrative Agent
By:
/s/ Bridgett J. Manduk Mowry
Name:Bridgett J. Manduk Mowry
Title:Vice President
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
COLLATERAL AGENT:
BANK OF AMERICA, N.A.,
As Collateral Agent
By:
/s/ Bridgett J. Manduk Mowry
Name:Bridgett J. Manduk Mowry
Title:Vice President
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
LENDERS:
BANK OF AMERICA, N.A., as a Lender, Swing Line Lender and L/C Issuer
By:
/s/ Sophie Lee
Name:Sophie Lee
Title:Vice President
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
ARAB BANKING CORPORATION (B.S.C.), Grand Cayman Branch, as a Lender
By:
/s/ Richard Tull
Name:Richard Tull
Title:Head of Wholesale Banking, North America
By:
/s/ Victoria Gale
Name:Victoria Gale
Title:Vice President
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
BANK OF MONTREAL, as a Lender and an L/C Issuer
By:
/s/ Michael Gift
Name:Michael Gift
Title:Director
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
BNP PARIBAS, as a Lender and an L/C Issuer
By:
/s/ Todd Rodgers
Name:Todd Rodgers
Title:Director
By:
/s/ Mary-Ann Wong
Name:Mary-Ann Wong
Title:Vice President
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit 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. 8 and Waiver to Credit Agreement
Signature Page
COMERICA BANK, as a Lender
By:
/s/ Gary P. Mach
Name:Gary P Mach
Title:Vice President
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
COMMERZBANK AG, NEW YORK BRANCH, as a Lender
By:
/s/ Barbara Stacks
Name:Barbara Stacks
Title:Director
By:
/s/ Peter Liu
Name:Peter Liu
Title:Vice President
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
COMPASS BANK, as a Lender and an L/C Issuer
By:
/s/ Aaron Loyd
Name:Aaron Loyd
Title:Director
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
CRDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender and an L/C Issuer
By:
/s/ Page Dillehunt
Name:Page Dillehunt
Title:Managing Director
By:
/s/ Michael Willis
Name:Michael Willis
Title:Managing Director
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit 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. 8 and Waiver to Credit Agreement
Signature Page
HSBC BANK USA, NATIONAL ASSOCIATION, as a Lender
By:
/s/ Rumesha Ahmed
Name:Rumesha Ahmed
Title:Vice President
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
ING BANK N.V., DUBLIN BRANCH, as a Lender
By:
/s/ Sean Hassett
Name:Sean Hassett
Title:Director
By:
/s/ Padraig Matthews
Name:Padraig Matthews
Title:Director
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
INTESA SANPAOLO S.P.A., NEW YORK BRANCH, as a Lender
By:
/s/ Jennifer Feldman Facciola
Name:Jennifer Feldman Facciola
Title:VP& Relationship Manager
By:
/s/ Francesco Di Mario
Name:Francesco Di Mario
Title:FVP& Head of Credit
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
LLOYDS BANK PLC, as a Lender
By:
/s/ Erin Walsh
Name:Erin Walsh
Title:Assistant Vice President
By:
/s/ Daven Popat
Name:Daven Popat
Title:Senior Vice President
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
NATIONAL BANK OF KUWAIT, S.A.K. - NEW YORK, as a Lender
By:
/s/ Marwan Isbaih
Name:Marwan Ishaih
Title:General Manager
By:
/s/ Michael McHugh
Name:Michael McHugh
Title:Executive Manager
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
NBAD AMERICAS N.V., as a Lender
By:
/s/ David Young
Name:David Young
Title:Director, Client Relationship
By:
/s/ William Ghazar
Name:William Ghazar
Title:Executive Director, Head of Client Relationship
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
REGIONS BANK, as a Lender
By:
/s/ Joey Powell
Name:Joey Powell
Title:Director
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
RIYAD BANK, HOUSTON AGENCY, as a Lender
By:
/s/ Michael Meiss
Name:Michael Meiss
Title:General Manager
By:
/s/ Tim Hartnett
Name:Tim Hartnett
Title:Vice President& Administrative Officer
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
SANTANDER BANK, N.A., as a Lender
By:
/s/ Andres Barbosa
Name:Andres Barbosa
Title:Executive Director
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
STANDARD CHARTERED BANK, as a Lender
By:
/s/ Daniel Mattern
Name:Daniel Mattern
Title:Associate Director
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
SUMITOMO MITSUI BANKING CORPORATION, as a Lender
By:
/s/ James D. Weinstein
Name:James D. Weinstein
Title:Managing Director
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit 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. 8 and Waiver to Credit 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. 8 and Waiver to Credit Agreement
Signature Page
THE NORTHERN TRUST COMPANY, as a Lender
By:
/s/ Robert P. Veltian
Name:Robert P. Veltian
Title:Vice President
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
THE TORONTO-DOMINION BANK, NEW YORK BRANCH, as a Lender
By:
/s/ Annie Doval
Name:Annie Doval
Title:Authorized Signatory
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
U.S. BANK NATIONAL ASSOCIATION, as a Lender and an L/C Issuer
By:
/s/ David C. Heyson
Name:David C. Heyson
Title:Senior Vice President
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
WHITNEY BANK, as a Lender
By:
/s/ J. Greg Scott
Name:J. Greg Scott
Title:Senior Vice President
Chicago Bridge & Iron
Amendment No. 8 and Waiver to Credit Agreement
Signature Page
ZB, N.A. 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. 8 and Waiver to Credit Agreement
Signature Page
ANNEX I
CONFORMED CREDIT AGREEMENT
(see attached)
Published CUSIP Numbers: 16725RAA8 (Deal)
Revolver: 16725RAB6
EXECUTION VERSION
CREDIT AGREEMENT1
Dated as of October28, 2013
among
CHICAGO BRIDGE& IRON COMPANY N.V.,
as Guarantor,
CHICAGOBRIDGE& IRON COMPANY (DELAWARE),
as Initial Borrower,
and
CERTAIN SUBSIDIARIES,
as Designated Borrowers,
BANK OF AMERICA, N.A.,
asAdministrative Agent, Collateral Agent, Swing Line Lender and L/C Issuer,
and
The Other Lenders Party Hereto
BANK OF AMERICA MERRILL LYNCH, COMPASS BANK, BNP PARIBAS SECURITIES CORP., CRDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
and
RBS SECURITIESINC.,
as Joint Lead Arrangers and Joint Bookrunners
COMPASS BANK, BNP PARIBAS, CRDIT AGRICOLE CORPORATE AND INVESTMENT BANK, and THE ROYAL BANK OF SCOTLAND PLC,
as Co-Syndication Agents
BANK OF MONTREAL, HSBC BANK USA, N.A., and
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
as Co-Documentation Agents
1Conformed version to include Amendments No.1, 2, 3, 4, 5, 6, 7 and 8.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1
1.01
Defined Terms
1
1.02
Other Interpretive Provisions
44
1.03
Accounting Terms
45
1.04
Rounding
45
1.05
Exchange Rates; Currency Equivalents
45
1.06
Additional Alternative Currencies
46
1.07
Change of Currency
47
1.08
Times of Day
47
1.09
Letter of Credit Amounts
48
1.10
Supplemental Disclosure
48
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
48
2.01
Committed Loans
48
2.02
Borrowings, Conversions and Continuations of Committed Loans
48
2.03
Letters of Credit
50
2.04
Swing Line Loans
60
2.05
Prepayments
63
2.06
Termination or Reduction of Commitments
67
2.07
Repayment of Loans
67
2.08
Interest
67
2.09
Fees
68
2.10
Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
69
2.11
Evidence of Debt
69
2.12
Payments Generally; Administrative Agents Clawback
70
2.13
Sharing of Payments by Lenders
72
2.14
Designated Borrowers
72
2.15
[Reserved.]
74
2.16
Cash Collateral
74
2.17
Defaulting Lenders
75
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
77
3.01
Taxes
77
3.02
Illegality
82
3.03
Inability to Determine Rates
83
3.04
Increased Costs; Reserves on Eurodollar Rate Loans
84
3.05
Compensation for Losses
86
3.06
Mitigation Obligations; Replacement of Lenders
86
3.07
Survival
87
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TABLE OF CONTENTS
(continued)
Page
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
87
4.01
Conditions of Initial Credit Extension
87
4.02
Conditions to All Credit Extensions
88
4.03
Conditions to Initial Advance to Each New Designated Borrower
90
ARTICLE V
REPRESENTATIONS AND WARRANTIES
91
5.01
Organization; Corporate Powers
91
5.02
Authority, Execution and Delivery; Loan Documents
91
5.03
No Conflict; Governmental Consents
92
5.04
No Material Adverse Change
92
5.05
Financial Statements
92
5.06
Payment of Taxes
93
5.07
Litigation; Loss Contingencies and Violations
93
5.08
Subsidiaries
93
5.09
ERISA
94
5.10
Accuracy of Information
95
5.11
Securities Activities
95
5.12
Material Agreements
95
5.13
Compliance with Laws
95
5.14
Assets and Properties
95
5.15
Statutory Indebtedness Restrictions
96
5.16
Insurance
96
5.17
Environmental Matters
96
5.18
Representations and Warranties of Each Designated Borrower
97
5.19
Benefits
98
5.20
Solvency
98
5.21
OFAC
98
5.22
PATRIOT Act
99
5.23
Senior Indebtedness
99
5.24
Anti-Corruption Laws
99
5.25
Not an EEA Financial Institution
99
5.26
Security Instruments
99
5.27
Regulation H
100
ARTICLE VI
AFFIRMATIVE COVENANTS
101
6.01
Financial Report
101
6.02
Notices
103
6.03
Existence, Etc
106
6.04
Corporate Powers; Conduct of Business
107
6.05
Compliance with Laws, Etc
107
6.06
Payment of Taxes and Claims; Tax Consolidation
107
6.07
Insurance
107
6.08
Inspection of Property; Books and Records; Discussions
108
6.09
ERISA Compliance
108
6.10
Maintenance of Property
108
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TABLE OF CONTENTS
(continued)
Page
6.11
Environmental Compliance
109
6.12
Use of Proceeds
109
6.13
Covenant to Guarantee Obligations and Give Security
109
6.14
Foreign Employee Benefit Compliance
113
6.15
Anti-Corruption Laws
113
6.16
Appraisals
114
6.17
Further Assurances
114
6.18
Most Favored Lender Status
114
ARTICLEVII
NEGATIVE COVENANTS
116
7.01
Indebtedness
116
7.02
Sales of Assets
118
7.03
Liens
119
7.04
Investments
120
7.05
Contingent Obligations
121
7.06
Conduct of Business; Subsidiaries; Acquisitions
121
7.07
Transactions with Shareholders and Affiliates
122
7.08
Restriction on Fundamental Changes
122
7.09
Sales and Leasebacks
122
7.10
Margin Regulations
123
7.11
ERISA
123
7.12
Subsidiary Covenants
123
7.13
Swap Contracts
123
7.14
Issuance of Disqualified Stock
124
7.15
Non-Guarantor Subsidiaries
124
7.16
Intercompany Indebtedness
124
7.17
Restricted Payments
124
7.18
Financial Covenants
124
7.19
Sanctions
125
7.20
Anti-Corruption Laws
126
ARTICLEVIII
EVENTS OF DEFAULT AND REMEDIES
126
8.01
Events of Default
126
8.02
Remedies Upon Event of Default
129
8.03
Application of Funds
130
ARTICLE IX
ADMINISTRATIVE AGENT
131
9.01
Appointment and Authority
131
9.02
Rights as a Lender
132
9.03
Exculpatory Provisions
132
9.04
Reliance by Administrative Agent
133
9.05
Delegation of Duties
133
9.06
Resignation of Administrative Agent
133
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TABLE OF CONTENTS
(continued)
Page
9.07
Non-Reliance on Administrative Agent and OtherLenders
135
9.08
No Other Duties, Etc
135
9.09
Administrative Agent May File Proofs of Claim
135
9.10
Collateral and Guaranty Matters
136
9.11
Secured Cash Management Agreements, Secured Hedge Agreements, and Secured Bilateral Letters ofCredit
137
ARTICLE X
MISCELLANEOUS
138
10.01
Amendments, Etc
138
10.02
Notices; Effectiveness; Electronic Communication
140
10.03
No Waiver; Cumulative Remedies; Enforcement
142
10.04
Expenses; Indemnity; Damage Waiver
142
10.05
Payments Set Aside
144
10.06
Successors and Assigns
145
10.07
Treatment of Certain Information; Confidentiality
150
10.08
Right of Setoff
151
10.09
Interest Rate Limitation
151
10.10
Counterparts; Integration; Effectiveness
151
10.11
Survival of Representations and Warranties
152
10.12
Severability
152
10.13
Replacement of Lenders
152
10.14
Governing Law; Jurisdiction; Etc
153
10.15
Waiver of Jury Trial
155
10.16
No Advisory or Fiduciary Responsibility
155
10.17
Electronic Execution of Assignments and Certain Other Documents
156
10.18
USA PATRIOT Act
156
10.19
Judgment Currency
156
10.20
Entire Agreement
157
10.21
Keepwell
157
10.22
Authorization
157
10.23
Acknowledgement and Consent to Bail-In of EEA FinancialInstitutions
158
ARTICLE XI
GUARANTY
158
11.01
Guaranty
158
11.02
Waivers; Subordination of Subrogation
159
11.03
Guaranty Absolute
160
11.04
Acceleration
161
11.05
Marshaling; Reinstatement
161
11.06
Termination Date
161
11.07
Subordination of Intercompany Indebtedness
161
-iv-
SCHEDULES
1.01A
Excluded Foreign Subsidiaries
1.01B
Material Subsidiaries
1.01C
Subsidiary Guarantors
2.01
Commitments and Applicable Percentages
2.03
Existing Letters of Credit and L/C Issuers
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
7.04A
Permitted Existing Investments
7.04B
Permitted Existing J/V Investments
7.05
Permitted Existing Contingent Obligations
7.12
Subsidiary Covenants
7.17
Permitted Restricted Payments
10.02
Administrative Agents Office; Certain Addresses for Notices
EXHIBITS
Form of
A
Committed Loan Notice
B
Swing Line Loan Notice
C
Note
D
Compliance Certificate
E
Assignment and Assumption
F
Officers Certificate
G
Subsidiary Guaranty
H
Designated Borrower Request and Assumption Agreement
I-1
Companys US Counsels Opinion
I-2
Companys Foreign Counsels Opinion
J
U.S. Tax Compliance Certificates
K
Letter of Credit Report
L
Loan Notice Certificate
M
L/C Application Certificate
-v-
CREDIT AGREEMENT
This CREDIT AGREEMENT (Agreement) is entered into as of October28, 2013 among CHICAGOBRIDGE& IRON COMPANY N.V., a corporation organized under the laws of The Kingdom of the Netherlands (the Company), CHICAGO BRIDGE& IRON COMPANY (DELAWARE), a Delawarecorporation (the Initial Borrower), and certain Subsidiaries of the Company party hereto or subsequently designated pursuant to Section2.14 (each a Designated Borrower and, togetherwith the Initial Borrower, the Borrowers and, each a Borrower), each lender from time to time party hereto (collectively, the Lenders and individually, a Lender), andBANK OF AMERICA, N.A.,as Administrative Agent, Collateral Agent, Swing Line Lender and L/C Issuer.
The Company hasrequested that the Lenders provide a revolving credit facility, and the Lenders are willing to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONSAND ACCOUNTING TERMS
1.01Defined Terms. As used in this Agreement, the following terms shallhave the meanings set forth below:
Accounting Change has the meaning specified inSection1.03.
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 throughpurchase 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 whichhave 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 Section10.18.
Adjusted Indebtedness of a Person means, without duplication, such Persons Indebtedness but excluding obligationswith respect to (a)the undrawn portion of any Performance Letters of Credit (including any Performance Letters of Credit under and as defined in the Existing Revolving Credit Agreement), bank guarantees supporting obligations comparable tothose 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 theconsolidated balance sheet of such Person.
Administrative Agent means Bank of America in its capacity as administrativeagent under any of the Loan Documents, or any successor administrative agent.
Administrative Agents Officemeans, with respect to any currency, the Administrative Agents address and, as appropriate, account as set forth on Schedule10.02 with respect to such currency, or such other address or account with respect to suchcurrency as the Administrative Agent may from time to time notify to the Company and the Lenders.
AdministrativeQuestionnaire 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 moreintermediaries, Controls or is Controlled by or is under common Control with the Person specified.
AggregateCommitments 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 timeto time, applied in a manner consistent with that used in preparing the financial statements of the Company referred to in Section5.05(b) hereof; provided, however, except as provided inSection1.03, 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 ineffect 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 Section5.05(b) hereof.
Alternative Currency means each currency (other than Dollars) that is approved in accordance withSection1.06.
Alternative Currency Equivalent means, at any time, with respect to any amountdenominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined inrespect of the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.
Amendment ClosingDate means the effective date of Amendment No.3 to Credit Agreement by and among the Company, the Borrowers, the Administrative Agent and the Lenders party thereto.
Amendment No.5 Closing Date means February24, 2017, the effective date of Amendment No.5 toCredit Agreement by and among the Company, the Borrowers, the Administrative Agent and the Lenders party thereto.
AmendmentNo.6 Closing Date means May8, 2017, the effective date of Amendment No.6 and Waiver to Credit Agreement by and among the Company, the Borrowers, the Administrative Agent and the Lenders party thereto.
2
Amendment No.7 means Amendment No.7 to CreditAgreement by and among the Company, the Borrowers, the Administrative Agent and the Lenders party thereto.
AmendmentNo.7 Closing Date means May29, 2017, the effective date of Amendment No.7.
AmendmentNo.8 means Amendment No.8 and Waiver to Credit Agreement by and among the Company, the Borrowers, the Administrative Agent, the Collateral Agent and the Lenders party thereto.
Amendment No.8 Closing Date means August9, 2017, the effective date of Amendment No.8.
Anti-Cash Hoarding Sweep has the meaning specified in Section2.05(c).
Applicable Balance means (i)with respect to this Agreement, the average daily Applicable Outstandings for the 90 dayperiod preceding the Relevant Completion Date; (ii)with respect to the Existing Revolving Credit Agreement, the average daily Applicable Outstandings (as defined in such agreement) for the 90 day period preceding the Relevant Completion Date;(iii)with respect to the Existing 2015 Term Loan Credit Agreement, the outstanding balance of Loans (as defined in such agreement) as of the Relevant Completion Date; and (iv)with respect to the Note Purchase Agreements, the outstandingprincipal balance of NPA Notes as of the Relevant Completion Date.
Applicable Outstandings means, at any time, theTotal Outstandings less the amount of Cash Collateral held by the Administrative Agent at such time.
ApplicablePercentage means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lenders Commitment at such time, subject to adjustment as provided inSection2.17. If the commitment of each Lender to make Loans and the obligation of the L/C Issuers to make L/C Credit Extensions have been terminated pursuant to Section8.02 or if the AggregateCommitments 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 ofeach 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 (i)with respect to the commitment fee due pursuant toSection2.09(a), 0.50% per annum; (ii)with respect to any Eurodollar Rate Loan, 5.00% per annum; (iii)with respect to any Base Rate Loan, 4.00% per annum; (iv)with respect to Financial Letters of Credit,5.00% per annum; and (v)with respect to Performance Letters of Credit, 3.50% per annum.
Applicable Time means,with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, to benecessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.
3
Approved Fund means any Fund that is administered or managed by (a)aLender, (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-dealerwholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporations or any of its subsidiaries investment banking, commercial lending services or related businesses may be transferred followingthe date of this Agreement), Compass Bank, BNP Paribas Securities Corp., Crdit Agricole Corporate and Investment Bank and RBS Securities Inc., 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 ofany 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.
Assignment and Assumption means an assignment and assumption entered into by a Lender and an Eligible Assignee (with theconsent of any party whose consent is required by Section10.06(b)), and accepted by the Administrative Agent, in substantially the form of ExhibitE or any other form (including electronicdocumentation generated by MarkitClear or other electronic platform) approved by the Administrative Agent.
AvailabilityPeriod means the period from and including the Closing Date to the earliest of (a)the Maturity Date, (b)the date of termination of the Aggregate Commitments pursuant to Section2.06, and (c)thedate of termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant to Section8.02.
Bail-In Action means the exercise of any Write-Down and Conversion Powers by theapplicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
Bail-In Legislation means, with respect to any EEA Member Country implementingArticle 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-InLegislation 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 thehighest 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 Rateplus 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
4
Americas 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 suchannounced 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 Committed Loan means a Committed Loan that is a Base Rate Loan.
Base Rate Loan means a Loan that bears interest based on the Base Rate. All Base Rate Loans shall be denominated inDollars.
Benefit Plan means a defined benefit plan as defined in Section3(35) of ERISA (other than aMultiemployer 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 Section3(5) of ERISA.
Borrower and Borrowers each has the meaning specified in the introductory paragraph hereto.
Borrower Guarantors has the meaning specified in Section11.01(a).
Borrower Materials has the meaning specified in Section6.02.
Borrowing means a Committed Borrowing or a Swing Line Borrowing, as the context may require.
Business Day means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to closeunder the Laws of, or are in fact closed in, New York, New York or the state where the Administrative Agents Office with respect to Obligations denominated in Dollars is located, and in respect of any fundings, disbursements, settlements andpayments in Dollars in respect of any such Eurodollar Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such 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 orbusiness 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 otherinterest 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 balancesheet of such Person prepared in accordance with Agreement Accounting Principles.
Capitalized Lease Obligations of aPerson 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.
5
Cash Collateralize means to pledge and deposit with or deliver to theAdministrative Agent, for the benefit of one or more of the L/C Issuers or the Lenders, as collateral for L/C Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations, cash or deposit account balances or, if theAdministrative Agent and the L/C Issuers shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and the applicable L/C Issuer. CashCollateral shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
Cash Equivalents means (a)marketable direct obligations issued or unconditionally guaranteed by the United Statesgovernment 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 anycommercial 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 Moodys, and which certificates of deposit and time deposits are fully protected against currency fluctuations for any such deposits with a term of more thanninety (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 byMoodys 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, atthe time of acquisition, are rated A-1 (or better) by S&P or P-1 (or better) by Moodys (all such institutions being, QualifiedInstitutions); (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 Moodys or AAA by S&P.
Cash Management Agreement means any agreement to provide cash management services, including treasury, depository,overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.
Cash ManagementBank means any Person that, at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Cash Management Agreement.
Change in Law means the occurrence, after the date of this Agreement, of any of the following: (a)the adoption ortaking 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 orissuance 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 andConsumer 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 BaselCommittee 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 thedate enacted, adopted or issued.
6
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) ofthe 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 ofthe 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 or any DesignatedBorrower 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 or any Designated Borrower, in either eventpursuant to a transaction in which the outstanding Capital Stock of the Company or such Designated 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 ceaseto 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 allof the members of the board of directors of each of the Subsidiary Guarantors.
Closing Date means the first date allthe conditions precedent in Section4.01 are satisfied or waived in accord