EXHIBIT 4.7
SIXTH AMENDMENT, CONSENT AND
WAIVER
This SIXTH AMENDMENT, CONSENT AND WAIVER ("
Consent "), dated as of December 11, 2008 (the "
Effective Date "), is by and among BWX Technologies, Inc.
(the " Borrower "), Babcock & Wilcox Technical Services
Group, Inc. (formerly known as BWXT Services, Inc.), BWXT Federal
Services, Inc. and Babcock & Wilcox Nuclear Operations Group,
Inc. (the " Guarantors "), the lenders from time to time
party to the Credit Agreement described below (the " Lenders
"), and Calyon New York Branch (formerly known as Credit Lyonnais,
New York Branch), as administrative agent for the Lenders (the "
Administrative Agent ").
INTRODUCTION
WHEREAS, the
Borrower, the Guarantors, the Lenders and the Administrative Agent
are parties to that certain Revolving Credit Agreement dated as of
December 9, 2003 as amended by First Amendment to Revolving Credit
Agreement dated as of March 18, 2005, the Second Amendment to
Revolving Credit Agreement dated as of November 7, 2005, the Third
Amendment to Revolving Credit Agreement dated as of December 22,
2006, the Fourth Amendment to Revolving Credit Agreement dated as
of March 29, 2007 and the Fifth Amendment dated as of October 29,
2007 (the " Credit Agreement ");
WHEREAS, Section 6.17 of the Credit
Agreement currently prohibits the Borrower or any of its
Subsidiaries from making any Acquisition in a transaction or series
of transactions if the aggregate amount of the consideration paid
in respect of such Acquisition together with the aggregate amount
of all liabilities assumed in respect of such Acquisition, when
taken together with all other such amounts paid or assumed with
respect to Acquisitions during the twelve-month period ended on the
date of such proposed Acquisition, would exceed $75,000,000 (or, if
applicable, the Foreign Currency Equivalent thereof, measured for
any Acquisition using the Exchange Rate in effect at the time of
such Acquisition);
WHEREAS, the Borrower intends to indirectly
acquire all of the outstanding Capital Stock of NFS Holdings, Inc.
and its Subsidiaries for an aggregate cash consideration of no more
than $175,000,000 (the " NFS Acquisition ");
WHEREAS, the Agent and the Lenders desire to
permit the NFS Acquisition and make certain amendments to the
Credit Agreement described herein, in each case subject to the
terms of this Consent;
NOW THEREFORE, in consideration of the
premises and the mutual covenants, representations and warranties
contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
AGREEMENT
Section 1. Definitions
. Unless otherwise defined in this Consent, each term
used in this Consent that is defined in the Credit Agreement has
the meaning assigned to such term in the Credit
Agreement.
(a) The Agent and the
Lenders hereby (1) consent to the NFS Acquisition, (2) agree that
the NFS Acquisition shall not constitute a Default or Event of
Default as a result of a violation of Section 6.17(e) of the
Credit Agreement and (3) agree that the aggregate cash
consideration paid in connection with the NFS Acquisition shall not
be included for purposes of determining future compliance with
Section 6.17(e) of the Credit Agreement; provided that (x) all of
the other requirements of Section 6.17 will be satisfied upon the
consummation of the NFS Acquisition and (y) the NFS Acquisition is
consummated on or prior to December 31, 2008, or if Nuclear
Regulatory Commission approval has not been received by December
31, 2008, March 31, 2009.
(b) The express
consent set forth in this Section 2 is limited to the extent
described herein and shall not be construed to be a consent to or a
permanent waiver of any terms, provisions, covenants, warranties or
agreements contained in the Credit Agreement or in any of the other
Credit Documents, unless expressly provided so
herein. This Consent applies to the NFS Acquisition
only, and all other Acquisitions will continue to be subject to the
terms set forth in Section 6.17 . The Lenders
reserve the right to exercise any rights
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