Amendment No. 3, dated August 9, 2017, to Credit Agreement, dated May 11, 2015, among Babcock & Wilcox Enterprises, Inc., as the Borrower, Bank of America, N.A., as Administrative Agent and Lender, and the other Lenders party thereto

Amendments to the Credit Agreement.

Section 1.01 (Defined Terms) of the Credit Agreement shall be amended by inserting the following new definitions in the appropriate alphabetical order in Section 1.01:

The definition of “Applicable Rate” in Section 1.01 (Defined Terms) of the Credit Agreement shall be amended and restated in its entirety as follows:

The definition of “Cash Management Agreement” in Section 1.01 (Defined Terms) of the Credit Agreement shall be amended by deleting the text stricken below to read in its entirety as follows:

Clause (b)(vii) of the definition of “EBITDA” in Section 1.01 (Defined Terms) of the Credit Agreement shall be amended and restated in its entirety as follows:

Clause (b) of the definition of “EBITDA” in Section 1.01 (Defined Terms) of the Credit Agreement shall be amended as follows:

deleting the word “and” after current clause (vi) thereof;

inserting the word “and” after current clause (vii) thereof;

inserting new clauses (viii), (ix) and (x) to read in their entirety as follows:

amending the proviso at the end of clause (b) of the definition of “EBITDA” by inserting the text underlined below and deleting the text stricken below to read in its entirety as follows:

Clause (c) of the definition of “EBITDA” in Section 1.01 (Defined Terms) of the Credit Agreement shall be amended as follows:

deleting the word “and” after current clause (v) thereof;

inserting the word “and” after current clause (vi) thereof; and

inserting new clause (vii) to read in its entirety as follows:

The definition of “EBITDA” in Section 1.01 (Defined Terms) of the Credit Agreement shall be amended by adding the following sentence to end of the final paragraph of such definition:

The definition of “Immaterial Subsidiary” in Section 1.01 (Defined Terms) of the Credit Agreement shall be amended by inserting the text underlined below and deleting the text stricken below to read in its entirety as follows:

The definition of “Interest Expense” in Section 1.01 (Defined Terms) of the Credit Agreement shall be amended by inserting the text underlined below and deleting the text stricken below to read in its entirety as follows:

The definition of “Loan Documents” in Section 1.01 (Defined Terms) of the Credit Agreement shall be amended by inserting the text underlined below to read in its entirety as follows:

The definition of “Material Real Property” in Section 1.01 (Defined Terms) of the Credit Agreement shall be amended by inserting the text underlined below and deleting the text stricken below to read in its entirety as follows:

The definition of “Permitted Acquisition” in Section 1.01 (Defined Terms) of the Credit Agreement shall be amended by deleting the proviso at the end of clause(d)(ii) thereof.

The definition of “Relief Period Sublimit” in Section 1.01 (Defined Terms) of the Credit Agreement shall be amended by inserting the text underlined below and deleting the text stricken below to read in its entirety as follows:

The definition of “Relief Period Termination Date” in Section 1.01 (Defined Terms) of the Credit Agreement shall be amended by inserting the text underlined below and deleting the text stricken below to read in its entirety as follows:

The definition of “Restricted Payment” in Section 1.01 (Defined Terms) of the Credit Agreement shall be amended by inserting the text underlined below to read in its entirety as follows:

The definition of “Revolving Credit Facility” in Section 1.01 (Defined Terms) of the Credit Agreement shall be amended by inserting the text underlined below and deleting the text stricken below to read in its entirety as follows:

The definition of “Subordinated Debt” in Section 1.01 (Defined Terms) of the Credit Agreement shall be amended by inserting the text underlined below to read in its entirety as follows:

The definitions of “Leverage Ratio” and “Senior Secured Leverage Ratio” in Section 1.01 (Defined Terms) of the Credit Agreement shall be deleted and each reference thereto shall be replaced with a reference to “Senior Leverage Ratio.”

The definition of “Leverage Ratio Increase” in Section 1.01 (Defined Terms) of the Credit Agreement shall be deleted.

Clause (ii) of Section 2.05(b) (Mandatory Prepayments) of the Credit Agreement shall be amended by inserting the text underlined below to read in its entirety as follows:

Section 2.05(b) (Mandatory Prepayments) of the Credit Agreement shall be further amended by inserting the following as new clause (vi) to read in its entirety as follows:

Clause (b) of Section 2.09 (Other Fees) of the Credit Agreement shall be amended by inserting the following as new clause (iii) to read in its entirety as follows:

Clause (b) of Section 2.10 (Computation of Interest and Fees) of the Credit Agreement shall be amended and restated in its entirety as follows: “(b) [reserved].”

Sub-clause (A) of Section 2.16(a)(iii) (Defaulting Lenders; Adjustments; Certain Fees) shall be amended by inserting the text underlined below to read in its entirety as follows:

Section 4.03 (Conditions to all Credit Extensions) of the Credit Agreement shall be amended by inserting the following as new clause (e) to read in its entirety as follows:

Article V (Representations and Warranties) of the Credit Agreement shall be amended by inserting the following as a new Section 5.24 (Budget) to read in its entirety as follows:

Section 6.01 (Financial Statements) of the Credit Agreement shall be amended by inserting the following as new clause (d) (Monthly Reports) to read in its entirety as follows:

Section 6.02(c) (Additional Filings) of the Credit Agreement shall be amended by inserting the text underlined below and deleting the text stricken below to read in its entirety as follows:

Section 6.23 (Real Property) of the Credit Agreement shall be amended by inserting the following sentence to the end of such Section:

The last sentence of Section 6.24 (Further Assurances) of the Credit Agreement shall be amended by inserting the text underlined below and deleting the text stricken below to read in its entirety as follows:

Article VI (Affirmative Covenants) of the Credit Agreement shall be further amended by inserting the following as new Sections 6.28 (Consultant), 6.29 (Variance and Cash Flow Reporting), 6.30 (Account Control Agreements) and 6.31 (Information Updates) to read in their entirety as follows:

Section 7.01 (Indebtedness) of the Credit Agreement shall be amended by:

deleting the word “and” after current clause (n) thereof;

inserting the word “and” after current clause (o) thereof; and

inserting a new clause (p) to read in its entirety as follows:

amending the proviso at the end of Section 7.01 by inserting the text underlined below and deleting the text stricken below to read in its entirety as follows:

Clause (n) of Section 7.02 (Liens) of the Credit Agreement shall be amended by inserting the text underlined below to read in its entirety as follows:

Section 7.02 (Liens) of the Credit Agreement shall be further amended by:

deleting the word “and” after current clause (p) thereof;

inserting the word “and” after current clause (q) thereof; and

inserting a new clause (r) to read in its entirety as follows:

Clause (h) of Section 7.03 (Investments) of the Credit Agreement shall be amended by inserting the text underlined below and deleting the text stricken below to read in its entirety as follows:

Clause (l) of Section 7.03 (Investments) of the Credit Agreement shall be amended by inserting the text underlined below and deleting the text stricken below to read in its entirety as follows:

Section 7.05 (Restricted Payments) of the Credit Agreement shall be amended by:

inserting the text “; and” in replacement of the text “.” at the end of clause (g); and

inserting a new clause (h) to read in its entirety as follows:

Clause (i) of the proviso set forth in Section 7.09 (Burdensome Agreements) of the Credit Agreement shall be amended by inserting the text underlined below to read in its entirety as follows:

Section 7.16 (Financial Covenants) of the Credit Agreement shall be amended by:

amending and restating clause (a) thereof as follows:

amending and restating clause (b) thereof as follows:

Article VII (Negative Covenants) of the Credit Agreement shall be further amended by inserting the following new Sections 7.18 (Minimum Liquidity), 7.19 (Additional Charges) and 7.20 (Capital Expenditures) to read in their entirety as follows:

Clause (e) of Section 8.01 (Events of Default) of the Credit Agreement shall be amended by inserting the text underlined below and deleting the text stricken below to read in its entirety as follows:

The paragraph beginning with the reference “Last” of Section 8.03 (Application of Proceeds) of the Credit Agreement shall be amended by inserting the text underlined below to read in its entirety as follows:

Amendments to the Collateral Agreement.

Effectiveness; Conditions Precedent.

the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:

counterparts of this Amendment executed by the Loan Parties and the Required Lenders;

such documentation and other information as has been reasonably requested by the Administrative Agent at least two Business Days prior to the date hereof with respect to the Loan Parties in connection with this Amendment;

(A) an executed copy of the Second Lien Credit Agreement, in form and substance satisfactory to the Administrative Agent and the Required Lenders, which Second Lien Credit Agreement shall be on terms no more favorable to the lenders thereunder than the terms of the Credit Agreement (as amended by this Amendment) to the Lenders, and (B) evidence of receipt by the Borrower of net proceeds from the incurrence of loans thereunder in an amount not less than $110,000,000;

an executed copy of the Intercreditor Agreement with respect to the obligations under the Second Lien Credit Agreement, in form and substance satisfactory to the Administrative Agent and the Required Lenders, including with respect to prohibitions on the prepayment of the obligations thereunder;

a satisfactory opinion of the Loan Parties’ counsel regarding due execution, enforceability and non-contravention of agreements and law, in form and substance satisfactory to the Administrative Agent (and consistent in scope with the prior opinion delivered by the Loan Parties’ counsel to the Administrative Agent in connection with the Credit Agreement);

the initial Budget;

a perfection certificate, in form and substance satisfactory to the Administrative Agent;

a list setting forth, as of December 31, 2016, each of the Borrower’s subsidiaries that are CFCs for which the “applicable earnings”, of a CFC (the “Reference CFC”) and the “applicable earnings” of any other CFC through which the Borrower holds the shares of the Reference CFC are, in the aggregate, less than $5,000,000. For the purposes of this clause (b)(vi), the term “applicable earnings” has the same meaning as in section 956(b)(1) of the Internal Revenue Code and the term “CFC” means any direct or indirect subsidiary of Company that is treated as a ‘controlled foreign corporation’ within the meaning of section 957(a) of the Internal Revenue Code;

a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist, or would result from the occurrence of the Amendment No. 3 Effective Date and (C) that since December 31, 2016, there have not occurred any facts, circumstances, changes, developments or events which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;

a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent; and

executed copies of such security documentation as may be reasonably requested by the Administrative Agent.

without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (Expenses; Indemnity; Damage Waiver) of the Credit Agreement, all outstanding fees, costs and expenses due to the Administrative Agent and the Lenders, including on account of Freshfields and FTI, shall have been paid in full to the extent that the Borrower has received an invoice therefor (with reasonable and customary supporting documentation) at least two Business Days prior to the Amendment No. 3 Effective Date (without prejudice to any post-closing settlement of such fees, costs and expenses to the extent not so invoiced);

the Administrative Agent shall have received on account of (x) each Lender that consents to this Amendment, an amendment fee consisting of 30bps (0.30%) of the portion of the Revolving Credit Facility and (y) each Lender, an upfront fee consisting of 30bps (0.30%) of the portion of the Revolving Credit Facility, in each case, held by each such Lender after giving effect to the reduction of the Revolving Credit Facility as contemplated by this Amendment; and

each of the representations and warranties made by the Borrower in Section 5 hereof shall be true and correct.

Representations and Warranties.

that both immediately prior and immediately after giving effect to this Amendment,
no Default exists;

the representations and warranties contained in the Credit Agreement (as amended
hereby) are true and correct in all material respects on and as of the date hereof (except to the extent that such representations and warranties (i) specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date and (ii) contain a materiality or Material Adverse Effect qualifier, in which case such representations and warranties shall be true and correct in all respects);

the execution, delivery and performance by the Borrower and the other Loan Parties
of this Amendment and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate, limited liability company or partnership action, including the consent of shareholders, partners and members where required, do not contravene any Loan Party or any of its Subsidiaries’ respective Constituent Documents, do not violate any Requirement of Law applicable to any Loan Party or any order or decree of any Governmental Authority or arbiter applicable to any Loan Party and do not require the consent of, authorization by, approval of, notice to, or filing or registration with, any Governmental Authority or any other Person in order to be effective and enforceable;

this Amendment has been duly executed and delivered on behalf of the Borrower and
the other Loan Parties;

this Amendment constitutes a legal, valid and binding obligation of the Borrower and
the other Loan Parties enforceable against the Borrower and the other Loan Parties in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, Debtor Relief Laws or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity;

as of the date hereof, all Liens, security interests, assignments and pledges encumbering the Collateral, created pursuant to and/or referred to in the Credit Agreement or the other Loan Documents, are valid, enforceable, duly perfected to the extent required by the Loan Documents, non-avoidable, first priority liens, security interests, assignments and pledges (subject to Liens permitted by Section 7.02 of the Credit Agreement), continue unimpaired, are in full force and effect and secure and shall continue to secure all of the obligations purported to be secured in the respective Security Instruments pursuant to which such Liens were granted; and

the initial Budget has been prepared in good faith based upon assumptions of the Borrower reasonable at the time made.

Consent, Acknowledgement and Reaffirmation of Indebtedness and Liens.

expressly consents to the amendments and modifications to the Credit Agreement and the Collateral Agreement effected hereby;

expressly confirms and agrees that, notwithstanding the effectiveness of this Amendment, each Loan Document to which it is a party is, and all of the obligations and liabilities of such Loan Party (including, without limitation, with respect to all Loans and all Letters of Credit) to the Administrative Agent, the Lenders and each other Secured Party contained in the Loan Documents to which it is a party (in each case, as amended and modified by this Amendment), are and shall continue to be, in full force and effect and are hereby reaffirmed, ratified and confirmed in all respects and, without limiting the foregoing, agrees to be bound by and abide by and operate and perform under and pursuant to and comply fully with all of the terms, conditions, provisions, agreements, representations, undertakings, warranties, indemnities, guaranties, grants of security interests and covenants contained in the Loan Documents;

to the extent such party has granted Liens or security interests on any of its properties or assets pursuant to any of the Loan Documents to secure the prompt and complete payment, performance and/or observance of all or any part of its Obligations to the Administrative Agent, the Lenders, and/or any other Secured Party, acknowledges, ratifies, remakes, regrants, confirms and reaffirms without condition, all Liens and security interests granted by such Loan Party to the Administrative Agent for their benefit and the benefit of the Lenders, pursuant to the Credit Agreement and the other Loan Documents, and acknowledges and agrees that all of such Liens and security interests are intended and shall be deemed and construed to continue to secure the Obligations under the Loan Documents, as amended, restated, supplemented or otherwise modified and in effect from time to time, including but not limited to, the Loans made by, and Letters of Credit provided by, the Administrative Agent and the Lenders to the Borrower and/or the other Loan Parties under the Credit Agreement, and all extensions renewals, refinancings, amendments or modifications of any of the foregoing;

agrees that this Amendment shall in no manner impair or otherwise adversely affect any of the Liens and security interests granted in or pursuant to the Loan Documents; and

acknowledges and agrees that: (i) the Guaranty and any obligations incurred thereunder, have been provided in exchange for “reasonably equivalent value” (as such term is used under the Bankruptcy Code and applicable state fraudulent transfer laws) and “fair consideration” (as such term is used under applicable state fraudulent conveyance laws) and (ii) each grant or perfection of a Lien or security interest on any Collateral provided in connection with Loan Documents, this Amendment and/or any negotiations with the Administrative Agent and/or the Lenders in connection with a “workout” of the Obligations is intended to constitute, and does constitute, a “contemporaneous exchange for new value” (as such term is used in section 547 of the Bankruptcy Code).

Releases; Waivers.

By its execution hereof, each Loan Party (on behalf of itself and its Affiliates) and its successors-in-title, legal representatives and assignees and, to the extent the same is claimed by right of, through or under any Loan Party, for its past, present and future employees, agents, representatives, officers, directors, shareholders, and trustees (each, a “Releasing Party” and collectively, the “Releasing Parties”), does hereby remise, release and discharge, and shall be deemed to have forever remised, released and discharged, the Administrative Agent, the Lenders and each of the other Secured Parties, and the Administrative Agent’s, each Lenders’ and each other Secured Party’s respective successors-in-title, legal representatives and assignees, past, present and future officers, directors, affiliates, shareholders, trustees, agents, employees, consultants, experts, advisors, attorneys and other professionals and all other persons and entities to whom any of the foregoing would be liable if such persons or entities were found to be liable to any Releasing Party, or any of them (collectively hereinafter the “Lender Parties”), from any and all manner of action and actions, cause and causes of action, claims, charges, demands, counterclaims, suits, covenants, controversies, damages, judgments, expenses, liens, claims of liens, claims of costs, penalties, attorneys’ fees, or any other compensation, recovery or relief on account of any liability, obligation, demand or cause of action of whatever nature, whether in law, equity or otherwise (including, without limitation, any so called “lender liability” claims, claims for subordination (whether equitable or otherwise), interest or other carrying costs, penalties, legal, accounting and other professional fees and expenses and incidental, consequential and punitive damages payable to third parties, or any claims arising under 11 U.S.C. §§ 541-550 or any claims for avoidance or recovery under any other federal, state or foreign law equivalent), whether known or unknown, fixed or contingent, joint and/or several, secured or unsecured, due or not due, primary or secondary, liquidated or unliquidated, contractual or tortious, direct, indirect, or derivative, asserted or unasserted, foreseen or unforeseen, suspected or unsuspected, now existing, heretofore existing or which may heretofore have accrued against any of the Lender Parties under the Credit Agreement or any of the other Loan Documents, whether held in a personal or representative capacity, and which are based on any act, fact, event or omission or other matter, cause or thing occurring at or from any time prior to and including the date hereof, in all cases of the foregoing in any way, directly or indirectly arising out of, connected with or relating to the Credit Agreement or any other Loan Document and the transactions contemplated thereby, and all other agreements, certificates, instruments and other documents and statements (whether written or oral) related

By its execution hereof, each Loan Party hereby (i) acknowledges and confirms that there are no existing defenses, claims, subordinations (whether equitable or otherwise), counterclaims or rights of recoupment or setoff against the Administrative Agent, the Lenders or any other Secured Parties in connection with the Obligations or in connection with the negotiation, preparation, execution, performance or any other matters relating to the Credit Agreement, the other Loan Documents or this Amendment and (ii) expressly waives any setoff, counterclaim, recoupment, defense or other right that such Loan Party now has against the Administrative Agent, any Lender or any of their respective affiliates, whether in connection with this Amendment, the Credit Agreement and the other Loan Documents, the transactions contemplated by this Amendment or the Credit Agreement and the Loan Documents, or any agreement or instrument relating thereto.

Entire Agreement.

Full Force and Effect of Credit Agreement.

Governing Law; Jurisdiction; Waiver of Jury Trial.

Severability.

References.

Successors and Assigns.

Lender Acknowledgment.