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EXECUTION EXHIBIT 10.1
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
dated as of
July 20, 2007 and is entered into by and among THE BABCOCK &
WILCOX COMPANY, a
Delaware corporation (the "Borrower"), CERTAIN OF THE GUARANTORS
executing the
signature pages hereto, CERTAIN LENDERS AND SYNTHETIC INVESTORS
(as such terms
are defined in the hereinafter described Credit Agreement)
listed on the
signature pages hereto (the "Lenders"), and CREDIT SUISSE,
CAYMAN ISLANDS
BRANCH, as Administrative Agent (in such capacity,
"Administrative Agent") and
as Collateral Agent (in such capacity, "Collateral Agent"), and
is made with
reference to that certain CREDIT AGREEMENT dated as of February
22, 2006 (as
amended by the First Amendment dated as of July 9, 2007, the
"Credit Agreement")
by and among Borrower, Lenders, Administrative Agent and the
other agents party
thereto. Capitalized terms used herein without definition shall
have the same
meanings herein as set forth in the Credit Agreement after
giving effect to this
Amendment.
RECITALS
WHEREAS, the Borrower has requested that the Lenders and the
Synthetic
Investors agree to amend certain provisions of the Credit
Agreement as provided
for herein; and
WHEREAS, subject to certain conditions provided for herein, the
Lenders and
the Synthetic Investors are willing to agree to such
amendments.
NOW, THEREFORE, in consideration of the premises and the
agreements,
provisions and covenants herein contained, the parties hereto
agree as follows:
SECTION I. Amendments
1.1 Amendments to Section 1: Definitions.
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Section 1.1 of the Credit Agreement is hereby amended by adding
the
following definitions in proper alphabetical sequence:
"Second Amendment" means that certain Second Amendment to
Credit
Agreement dated as of July 20, 2007 among the Borrower, the
Administrative
Agent, the Collateral Agent and the Lenders and Synthetic
Investors listed
on the signature pages thereto.
"Second Amendment Effective Date" means the date of satisfaction
of
the conditions referred to in Section II of the Second
Amendment.
1.2 Amendments to Section 2.12: Fees.
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Section 2.12(b) (Letter of Credit Fees) of the Credit Agreement
is hereby
amended by inserting the phrase "equal to a percentage per annum
as agreed to by
each Issuer acting in its sole and individual discretion but in
no case greater
than" immediately following the words "an issuance fee" and
immediately
preceding "0.125%" in clause (i) therein.
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1.3 Amendments to Schedule I: Commitments.
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Schedule I of the Credit Agreement is hereby amended by deleting
it in its
entirety and replacing it with the new Schedule I annexed hereto
as Exhibit A.
Each Lender that is not, prior to the Second Amendment Effective
Date a party to
the Credit Agreement as a Lender (i) confirms that it has
received a copy of the
Credit Agreement and the other Loan Documents, together with
copies of the most
recent financial statements of the Borrower delivered pursuant
thereto and such
other documents and information as it has deemed appropriate to
make its own
credit analysis and decision to enter into this Amendment; (ii)
agrees that it
has, independently and without reliance upon the Administrative
Agent, the
Collateral Agent or any other Lender and based on such documents
and information
as it has deemed appropriate, made its own credit analysis and
decision to enter
into this Amendment; (iii) agrees that it will, independently
and without
reliance upon the Administrative Agent, the Collateral Agent or
any other Lender
and based on such documents and information as it shall deem
appropriate at the
time, continue to make its own credit decisions in taking or not
taking action
under the Loan Documents; (iv) appoints and authorizes the
Administrative Agent
and the Collateral Agent to take such action as agent on its
behalf and to
exercise such powers and discretion under the Loan Documents as
are delegated to
the Administrative Agent and the Collateral Agent by the terms
thereof, together
with such powers and discretion as are reasonably incidental
thereto; and (v)
agrees that it is a "Lender" under the Loan Documents and will
perform in
accordance with their terms all of the obligations that by the
terms of the Loan
Documents are required to be performed by it as a Lender. The
Administrative
Agent and each Lender hereby agrees that the Increased Amount
Date for the New
Revolving Commitments set forth on the new Schedule I annexed
hereto as Exhibit
A shall be the Second Amendment Effective Date, notwithstanding
that the
Increased Amount Date is less than 10 Business Days after the
date of the notice
of the New Revolving Commitments delivered by the Borrower to
the Administrative
Agent pursuant to Section 2.18
1.4 Amendments to Schedule II: Applicable Commitment Fee Rate
and Applicable
------------------------------------------------------------------------
Margin.
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Schedule II of the Credit Agreement is hereby amended by
deleting it in its
entirety and replacing it with the new Schedule II annexed
hereto as Exhibit B.
SECTION II. CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective as of the date hereof only
upon the
satisfaction of all of the following conditions precedent (the
date of
satisfaction of such conditions being referred to herein as the
"Second
Amendment Effective Date"):
A. Execution. The Administrative Agent shall have received a
counterpart
signature page of this Amendment duly executed by the Borrower,
each of the
Guarantors and 100 % of all the affected Lenders and affected
Synthetic
Investors (it being understood that such unanimous vote may be
obtained
following the utilization by the Borrower of its option to cause
the assignment
of the Loans held by or amounts on deposit in the Sub-Account
of, as the case
may be, any Non-Consenting Lender pursuant to subsection 11.1(c)
of the Credit
Agreement).
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B. Opinions. The Administrative Agent shall have received
favorable written
opinions of (a) Baker Botts L.L.P., counsel to the Loan Parties
and (b) Liane K.
Hinrichs, Vice President, General Counsel and Corporate
Secretary of the
Borrower, in each case dated as of the Second Amendment
Effective Date
addressing such matters as the Administrative Agent may
reasonably request.
SECTION III. REAFFIRMATION OF CREDIT SUPPORT
A. Each of the Borrower and each Guarantor (each, individually,
a "Credit
Support Party" and, collectively, the "Credit Support Parties")
has read this
Amendment and consents to the terms hereof and further hereby
confirms and
agrees that, notwithstanding the effectiveness of this
Amendment, the
obligations of such Credit Support Party under, and the Liens
granted by such
Credit Support Party as collateral security for the
Indebtedness, obligations
and liabilities evidenced by the Credit Agreement and the other
Loan Documents
pursuant to, each of the Loan Documents to which such Credit
Support Party is a
party shall not be impaired and each of the Loan Documents to
which such Credit
Support Party is a party is, and shall continue to be, in full
force and effect
and are hereby confirmed and ratified in all respects
B. Each Credit Support Party (other than the Borrower)
acknowledges and
agrees that (i) notwithstanding the conditions to effectiveness
set forth in
this Amendment, such Credit Support Party is not required by the
terms of the
Credit Agreement or any other Loan Document to consent to the
amendments to the
Credit Agreement effected pursuant to this Amendment and (ii)
nothing in the
Credit Agreement, this Amendment or any other Loan Document
shall be deemed to
require the consent of such Credit Support Party to any future
amendments to the
Credit Agreement.
SECTION IV. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders and Synthetic Investors to enter into
this
Amendment and to amend the Credit Agreement in the manner
provided herein, the
Borrower represents and warrants to each Lender and each
Synthetic Investor that
the following statements are true and correct in all material
respects:
A. Corporate Power and Authority. The Borrower and each
Guarantor has all
requisite corporate or other organizational power and authority
to enter into
this Amendment and to carry out the transactions contemplated
by, and perform
its obligations under, the Credit Agreement and the other Loan
Documents.
B. Authorization of Agreements. The execution and delivery of
this
Amendment has been duly authorized by all necessary corporate or
other
organizational action on the part of the Borrower and each
Guarantor.
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C. No Conflict. The execution and delivery by the Borrower and
each
Guarantor of this Amendment does not and will not (i) violate
(A) any provision
of any law, statute, rule or regulation, or of the certificate
or articles of
incorporation or partnership agreement, other constitutive
documents or by-laws
of the Borrower or any such Guarantor or (B) any applicable
order of any court
or any rule, regulation or order of any Governmental Authority,
(ii) be in
conflict with, result in a breach of or constitute (alone or
with notice or
lapse of time or both) a default under any Contractual
Obligation of the
Borrower or any Guarantor, where any such conflict, violation,
breach or default
referred to in clause (i) or (ii) of this Section IV.C.,
individually or in the
aggregate could reasonably
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