JOINDER AND REAFFIRMATION AGREEMENT
Exhibit 4.3
Execution Version
JOINDER AND REAFFIRMATION AGREEMENT
This JOINDER AND REAFFIRMATION AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this Agreement) dated as of August 6, 2010 among THE BABCOCK & WILCOX COMPANY, a Delaware corporation (the New Borrower), BABCOCK & WILCOX INVESTMENT COMPANY, a Delaware corporation (the Original Borrower), BABCOCK & WILCOX INDIA HOLDINGS, INC., a Delaware corporation (the New Subsidiary and, together with the Original Borrower, the New Guarantors and, together with the New Borrower, the New Loan Parties), the other Guarantors party hereto and BANK OF AMERICA, N.A., in its capacity as Administrative Agent (the Administrative Agent) under that certain Credit Agreement, dated as of May 3, 2010 (as amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement), among the Borrower, the Lenders party thereto, the Administrative Agent, the Swing Line Lender and each L/C Issuer (each as defined therein). All capitalized terms used and not defined herein shall have the meanings given thereto in the Credit Agreement or the applicable Loan Document referred to herein.
The Original Borrower has informed the Administrative Agent that the consummation of the Spinoff occurred on July 30, 2010.
Accordingly, pursuant to Section 6.24 of the Credit Agreement, the New Loan Parties and the other Guarantors hereby agree as follows:
1. Joinder as the Borrower. The New Borrower, by execution of this Agreement, hereby represents, warrants, acknowledges and agrees that:
(a) from and after the effective time of the consummation of the Spinoff (i) the New Borrower, as provided in Section 6.24 of the Credit Agreement, is and shall be the Borrower (as defined in the Credit Agreement) under the Credit Agreement as if a signatory thereof on the Closing Date, in substitution of the Original Borrower, and (ii) each reference to the Borrower in the Credit Agreement and the other Loan Documents shall be a reference to the New Borrower as described in clause(b) of the definition of Borrower in the Credit Agreement;
(b) as the Borrower, it shall comply with, and be subject to, and have the benefit of, all of the terms, conditions, covenants, agreements and obligations set forth in the Credit Agreement; and
(c) each of the representations and warranties of (i) the Borrower contained in Article V of the Credit Agreement and (ii) each Loan Party contained in each other Loan Document, is true and correct in all material respects on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that the representations and warranties contained in subsections (a) and (b) of Section 5.04 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement.
2. Joinder as a Guarantor. Each New Guarantor, by execution of this Agreement, hereby represents, warrants, acknowledges and agrees that:
(a) from and after the date hereof (i) it is a Guarantor (as defined in the Guaranty), as provided in Section 19 of the Guaranty, under the Guaranty as if a signatory thereof on the Closing Date, and (ii) each reference to a Guarantor or the Guarantors in the Guaranty and the other Loan Documents shall include such New Guarantor as a Guarantor;
(b) it shall comply with, and be subject to, and have the benefit of, all of the terms, conditions, covenants, agreements and obligations set forth in the Guaranty; and
(c) each of the representations and warranties of such Guarantor contained in the Guaranty, in the Collateral Agreement or in any other Loan Document is true and correct in all material respects on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date.
Without limiting the generality of the foregoing terms of this paragraph 2, each New Guarantor hereby, jointly and severally together with the other Guarantors, guarantees to the Administrative Agent, for the benefit of the Guaranteed Parties, to the extent provided in Section 2 of the Guaranty, the prompt payment and performance of the Guaranteed Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise) strictly in accordance with the terms of the Guaranty.
3. Joinder as a Grantor. Each of the New Subsidiary and the New Borrower (together, the New Grantors), by execution of this Agreement, hereby represents, warrants, acknowledges and agrees that:
(a) from and after the date hereof (i) it is a Grantor (as defined in the Collateral Agreement), as provided in Section 7.12 of the Collateral Agreement, under the Collateral Agreement as if a signatory thereof on the Closing Date, (ii) each reference to a Grantor or the Grantors in the Collateral Agreement and the other Loan Documents shall include such New Grantor, and (iii) each reference to the Collateral in the Collateral Agreement and the other Loan Documents shall include all Collateral (as defined in the Collateral Agreement) of each New Grantor (other than any Excluded Assets of a New Grantor); and
(b) it shall comply with, and be subject to, and have the benefit of, all of the terms, conditions, covenants, agreements and obligations set forth in the Collateral Agreement
Without limiting the generality of the foregoing terms of this paragraph 3, each New Grantor hereby, to the extent set forth in Section 2.1 of the Collateral Agreement grants to the Administrative Agent, for the ratable benefit of the Secured Parties, a continuing security interest in, and, to the extent set forth in Section 7.6 of the Collateral Agreement, a right of setoff against, any and all right, title and interest, whether now or hereafter owned or acquired, of each New Grantor in and to the Collateral of such New Grantor.
4. Reaffirmation. Each Loan Party (including the New Loan Parties):
(a) acknowledges, agrees and consents to the transactions set forth in paragraphs 1 through 3 of this Agreement (collectively, the Joinder Transactions);
(b) confirms and reaffirms its obligations under the Credit Agreement, as applicable, and each other Loan Document to which it is a party, after giving effect to the Joinder Transactions;
(c) acknowledges and agrees that each reference to the Credit Agreement, to the Guaranty or to the Collateral Agreement as used in any Loan Document shall mean the Credit Agreement, the Guaranty, and the Collateral Agreement, respectively, as supplemented hereby (including by the Joinder Transactions) and as otherwise amended, restated, supplemented or otherwise modified prior to the date hereof; and
(d) agrees that after giving effect to this Agreement and the Joinder Transactions, the Credit Agreement, the Guaranty, the Collateral Agreement and each other Loan Document to which it is a party remain in full force and effect, and each are hereby ratified and confirmed by such Loan Party.
5. Schedules. Attached hereto as Annex A is a supplement to Schedule 5.03 of the Credit Agreement and to each of the Schedules to the Collateral Agreement to the extent such Schedules have changed since the Closing Date or will change as a result of the execution and delivery hereof (which supplements include, as of the date hereof, all information required to be provided therein with respect to the New Loan Parties), in each case as of the date hereof.
6. Notices. All notices and communications to any New Loan Party shall be given to the address of the Borrower set forth in, and otherwise made in accordance with, Section 10.02 of the Credit Agreement, Section 7.2 of the Collateral Agreement and Section 15 of the Guaranty, as applicable.
7. Waiver. Each New Guarantor hereby waives acceptance by the Administrative Agent and the Guaranteed Parties of the guarantee by such New Loan Party under the Guaranty.
8. Advice of Counsel. Each Loan Party (including each New Loan Party) hereby acknowledges that (a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party and (b) it has received a copy of the Credit Agreement and the other Loan Documents and has reviewed and understands the same.
9. Counterparts; Etc. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.
10. Governing Law. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of New York.
[Signature Pages Follow]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed as of the date first above written.
BORROWER: | THE BABCOCK & WILCOX COMPANY | |||||
By: | /s/ Jenny L. Apker | |||||
Name: | Jenny L. Apker | |||||
Title: | Vice President and Treasurer | |||||
GUARANTORS: | BABCOCK & WILCOX INVESTMENT COMPANY | |||||
By: | /s/ Jenny L. Apker | |||||
Name: | Jenny L. Apker | |||||
Title: | Vice President and Treasurer | |||||
BABCOCK & WILCOX INDIA HOLDINGS, INC. | ||||||
By: | /s/ Jenny L. Apker | |||||
Name: | Jenny L. Apker | |||||
Title: | Treasurer | |||||
ONLY FOR THE PURPOSES OF PARAGRAPH 4: | AMERICON EQUIPMENT SERVICES, INC. AMERICON, INC. APPLIED SYNERGISTICS, INC. BABCOCK & WILCOX CHINA HOLDINGS, INC. BABCOCK & WILCOX CONSTRUCTION CO, INC. BABCOCK & WILCOX DENMARK HOLDINGS, INC. BABCOCK & WILCOX EBENSBURG POWER, INC. BABCOCK & WILCOX EQUITY INVESTMENTS, INC. BABCOCK & WILCOX INTERNATIONAL SALES BABCOCK & WILCOX INTERNATIONAL, INC. BABCOCK & WILCOX MODULAR NUCLEAR ENERGY LLC BABCOCK & WILCOX NUCLEAR ENERGY, INC. BABCOCK & WILCOX NUCLEAR OPERATIONS BABCOCK & WILCOX POWER GENERATION GROUP, INC. BABCOCK & WILCOX TECHNOLOGY, INC. BABCOCK & WILCOX TECHNICAL SERVICES BABCOCK & WILCOX TECHNICAL SERVICES GROUP, INC. BWX TECHNOLOGIES, INC. BWXT FEDERAL SERVICES, INC. |
Babcock & Wilcox
Joinder and Reaffirmation Agreement
BWXT WASHINGTON, INC. DELTA POWER SERVICES, LLC DIAMOND OPERATING CO., INC. DIAMOND POWER AUSTRALIA HOLDINGS, INC. DIAMOND POWER CHINA HOLDINGS, INC. DIAMOND POWER EQUITY INVESTMENTS, INC. DIAMOND POWER INTERNATIONAL, INC. DPS BERKELEY, LLC DPS CADILLAC, LLC DPS FLORIDA, LLC DPS GREGORY, LLC DPS LOWELL COGEN, LLC DPS MECKLENBURG, LLC DPS MICHIGAN, LLC DPS MOJAVE, LLC DPS SABINE, LLC INTECH, INC. IVEY-COOPER SERVICES, L.L.C. MARINE MECHANICAL CORPORATION NFS HOLDINGS, INC. NOG-ERWIN HOLDINGS, INC. NUCLEAR FUEL SERVICES, INC. O&M HOLDING COMPANY PALM BEACH RESOURCE RECOVERY CORPORATION POWER SYSTEMS OPERATIONS, INC. REVLOC RECLAMATION SERVICE, INC. SOFCO - EFS HOLDINGS LLC | ||
By: | /s/ Jenny L. Apker | |
Name: | Jenny L. Apker | |
Title: | Treasurer | |
NATIONAL ECOLOGY COMPANY | ||
By: | /s/ Jenny L. Apker | |
Name: | Jenny L. Apker | |
Title: | Authorized Representative |
Babcock & Wilcox
Joinder and Reaffirmation Agreement
BWXT HANFORD COMPANY BWXT OF IDAHO, INC. BWXT OF OHIO, INC. BABCOCK & WILCOX TECHNICAL SERVICES | ||
By: | /s/ Jenny L. Apker | |
Name: | Jenny L. Apker | |
Title: | Assistant Treasurer |
Babcock & Wilcox
Joinder and Reaffirmation Agreement
Acknowledged and accepted:
BANK OF AMERICA, N.A., as Administrative Agent | ||
By: | /s/ Bridgett J. Manduk | |
Name: | Bridgett J. Manduk | |
Title: | Assistant Vice President |
Babcock & Wilcox
Joinder and Reaffirmation Agreement
ANNEX A
Supplemental Schedules
[Attached Hereto]
Schedule 5.03
Ownership of Subsidiaries
Name | Jurisdiction of Organization | Number of Shares Authorized | Number of Shares Outstanding | % of Outstanding Shares held by Borrower (direct or indirect) | ||||
Americon Equipment Services, Inc. | Delaware | 1,000 | 1,000 | 100% | ||||
Americon, Inc. | Delaware | 1,000 | 100 | 100% | ||||
Applied Synergistics, Inc. | Delaware | 1,000 | 1,000 | 100% | ||||
Babcock & Wilcox Canada Ltd. | Ontario | 1,000,000 | 500,000 | 100% | ||||
Babcock & Wilcox China Holdings, Inc | Delaware | 1,000 | 1,000 | 100% | ||||
Babcock & Wilcox Construction Co., Inc. | Delaware | 1,000 | 100 | 100% | ||||
Babcock & Wilcox Denmark Holdings, Inc. | Delaware | 1,000 | 1,000 | 100% | ||||
Babcock & Wilcox Ebensburg Power, Inc. | Delaware | 1,000 | 1,000 | 100% | ||||
Babcock & Wilcox Equity Investments, Inc. | Delaware | 1,000 | 1,000 | 100% | ||||
Babcock & Wilcox India Private Limited | India | 1,000,000 | 675,020 | 100% | ||||
Babcock & Wilcox International Sales and Service Corporation | Delaware | 1,000 | 1,000 | 100% | ||||
Babcock & Wilcox International, Inc. | Delaware | 1,000 | 1,000 | 100% | ||||
Babcock & Wilcox Michoud Operations, LLC1 | Louisiana | N/A | N/A | 100% | ||||
Babcock & Wilcox Modular Nuclear Energy LLC | Delaware | N/A | N/A | 100% | ||||
Babcock & Wilcox Nuclear Operations Group, Inc.* | Delaware | 1,000 | 1,000 | 100% | ||||
Babcock & Wilcox Nuclear Energy, Inc. | Delaware | 1,000 | 1,000 | 100% | ||||
Babcock & Wilcox Power Generation Group, Inc. | Delaware | 101,000 | 101,000 | 100% | ||||
Babcock & Wilcox Technical Services (U.K.) Limited* | United Kingdom | 100 | 2 | 100% | ||||
Babcock & Wilcox Technical Services Clinch River, LLC* | Delaware | N/A | N/A | 100% | ||||
Babcock & Wilcox Technical Services Group, Inc.* | Delaware | 1,000 | 1,000 | 100% | ||||
Babcock & Wilcox Technical Services Savannah River Company* | Delaware | 1,000 | 1,000 | 100% | ||||
Babcock & Wilcox Technology, Inc. | Delaware | 1000 | 1000 | 100% | ||||
Babcock & Wilcox Volund | Denmark | 100,000 | 100,000 | 100% |
1 | Entity is inactive and is being dissolved. |
Name | Jurisdiction of Organization | Number of Shares Authorized | Number of Shares Outstanding | % of Outstanding Shares held by Borrower (direct or indirect) | ||||
A/S | ||||||||
BCE Parts Ltd. | Ontario | Unlimited | 1 | 100% | ||||
BWX Technologies, Inc.* | Delaware | 1,000 | 1,000 | 100% | ||||
BWXT Federal Services, Inc. * | Delaware | 1,000 | 1,000 | 100% | ||||
BWXT Hanford Company* | Delaware | 1,000 | 1,000 | 100% | ||||
BWXT of Idaho, Inc. * | Delaware | 800 Series A | 800 Series A | 100% | ||||
200 Series B | 200 Series B | |||||||
BWXT of Ohio, Inc. * | Delaware | 1,000 | 1,000 | 100% | ||||
BWXT Washington, Inc. * | Delaware | 1,000 | 1,000 | 100% | ||||
Delta Power Services, LLC | Delaware | N/A | N/A | 100% | ||||
Diamond Operating Co., Inc. | Delaware | 1,000 | 1,000 | 100% | ||||
Diamond Power Australia Holdings, Inc. | Delaware | 1,000 | 1,000 | 100% | ||||
Diamond Power Central & Eastern Europe s.r.o. | Czech Republic | 200,000 | 200,000 | 100% | ||||
Diamond Power China Holdings, Inc. | Delaware | 1,000 | 1,000 | 100% | ||||
Diamond Power do Brasil Limitada | Brazil | 500,000 | 300,000 | 100% | ||||
Diamond Power Equity Investments, Inc. | Delaware | 1,000 | 1,000 | 100% | ||||
Diamond Power Finland OY | Finland | 600 | 600 | 100% | ||||
Diamond Power Germany GmbH** | Germany | 125,700 | 125,700 | 94.9% (119,400 shares) | ||||
Diamond Power International, Inc. | Delaware | 1,000 | 1,000 | 100% | ||||
Diamond Power Services S.E.A. Ltd. | Thailand | 784 | 784 | 79.7% (625 shares) | ||||
Diamond Power Specialty (Proprietary) Limited | Republic of South Africa | 1,000 | 1 | 100% | ||||
Diamond Power Specialty Limited | United Kingdom | 500,000 | 500,000 | 100% | ||||
Diamond Power Sweden AB | Sweden | 5,000 | 5,000 | 100% | ||||
DPS Berkeley, LLC | Delaware | N/A | N/A | 100% | ||||
DPS Cadillac, LLC | Delaware | N/A | N/A | 100% | ||||
DPS Florida, LLC | Delaware | N/A | N/A | 100% | ||||
DPS Gregory, LLC | Delaware | N/A | N/A | 100% | ||||
DPS Lowell Cogen, LLC | Delaware | N/A | N/A | 100% | ||||
DPS Mecklenburg, LLC | Delaware | N/A | N/A | 100% | ||||
DPS Michigan, LLC | Delaware | N/A | N/A | 100% | ||||
DPS Mojave, LLC | Delaware | N/A | N/A | 100% | ||||
DPS Sabine, LLC | Delaware | N/A | N/A | 100% | ||||
Ebensburg Power Company *** | Pennsylvania | N/A (Partnership) | N/A | 50.005% | ||||
Intech International Inc. | Ontario | Unlimited | 1,000 | 100% | ||||
Intech, Inc. | Tennessee | 50,000 Series A 50,000 Series B | 2,500 Series A 0 Series B | 100% | ||||
Ivey-Cooper Services, L.L.C. | Tennessee | N/A | N/A | 100% | ||||
Marine Mechanical Corporation* | Delaware | 1,500,000 Class A 500,000 Class B 1,500 Preferred | 549,858.59 Class A 0 Class B 0 Preferred | 100% | ||||
National Ecology Company | Delaware | 1,000 | 1,000 | 100% | ||||
NFS Holdings, Inc. * | Delaware | 100,000 | 100,000 | 100% |
Name | Jurisdiction of Organization | Number of Shares Authorized | Number of Shares Outstanding | % of Outstanding Shares held by Borrower (direct or indirect) | ||||
NOG-Erwin Holdings, Inc. * | Delaware | 1,000 | 1,000 | 100% | ||||
North County Recycling, Inc. 2 | California | 1,000 | 300 | 100% | ||||
Nuclear Fuel Services, Inc. * | Delaware | 5,000 | 1,683 | 100% | ||||
O&M Holding Company | Delaware | 1,000 | 1,000 | 100% | ||||
P. T. Babcock & Wilcox Asia | Indonesia | 1,200 | 800 | 100% | ||||
Palm Beach Resource Recovery Corporation | Florida | 60 | 60 | 100% | ||||
Power Systems Operations, Inc. | Delaware | 1,000 | 1,000 | 100% | ||||
Revloc Reclamation Service, Inc. | Delaware | 1,000 | 1,000 | 100% | ||||
SOFCo EFS Holdings LLC | Delaware | N/A | N/A | 100% |
* | Certain existing Requirements of Law and/or material contracts of the BWXT Entities restrict the transfer or hypothecation of any Stock in the BWXT Entities. |
** | The Constituent Documents of Diamond Power Germany GmbH restrict the transfer or hypothecation of any Stock in such Person. |
*** | The Amended & Restated Agreement of Ebensburg Power Company dated as of June 30, 1992 restricts the transfer or hypothecation of any Stock in the partnership. Ebensburg Power Company is a general partnership owned 50.5% by Ebensburg Investors Limited (an unaffiliated third party), and 49.5% by B&W Ebensburg Power, Inc. (a wholly-owned subsidiary of the Borrower). The Borrower indirectly owns a 1% interest in Ebensburg Investors Limited. |
2 | Entity is inactive and is being dissolved. |
Name | Jurisdiction of Organization | Number of Shares Authorized | Number of Shares Outstanding | % of Outstanding Shares held by Borrower (direct or indirect) | ||||
B&W de Panama, Inc. | Panama | 100,000 | 100,000 | 100% | ||||
Babcock & Wilcox Conversion Services LLC | Delaware | N/A | N/A | 51% | ||||
Babcock & Wilcox de Monterrey, S.A. de C.V. | Mexico | Common Unlimited Variable 11,349,464 | Common 50,000 Variable 11,349,464 | 100% | ||||
Babcock & Wilcox India Holdings, Inc. | Delaware | 1,000 | 1,000 | 100% | ||||
Babcock & Wilcox International Investments Co., Inc. | Panama | 100,000 | 100,000 | 100% | ||||
Babcock & Wilcox Investment Company | Delaware | 1,000 | 1,000 | 100% | ||||
Babcock & Wilcox Modular Nuclear Energy, LLC | Delaware | N/A | N/A | 100% | ||||
Babcock & Wilcox Nuclear Services (U.K.) Limited | United Kingdom | 100 | 2 | 100% | ||||
Babcock & Wilcox Shaw Remediation, LLC | Delaware | N/A | N/A | 75% | ||||
Creole Insurance Company, Ltd. | Bermuda | 2,000 | 2,000 | 100% | ||||
Diamond Power Machine (Hubei) Co., Inc. | China | N/A | N/A | 100% | ||||
DPS Piedmont, LLC | Delaware | N/A | N/A | 100% | ||||
Gotaverken Miljo AB | Sweden | 5,000 | 5,000 | 100% | ||||
Servicios de Fabricacion de Valle Soleado, S.A. de C.V. | Mexico | Unlimited | 50,000 | 100% | ||||
Servicios Profesionales de Valle Soleado, S.A. de C.V. | Mexico | Unlimited | 50,000 | 100% |
SCHEDULE 3.3
TO PLEDGE AND SECURITY AGREEMENT
PERFECTED FIRST PRIORITY LIENS
UCC Filings
A UCC1 Financing Statement listing each Grantor, as debtor, and the Collateral Agent, as secured party, should be filed in the applicable governmental offices set forth below.
Grantor | Jurisdiction of Filing | |
Americon Equipment Services, Inc. | Delaware Secretary of State | |
Americon, Inc. | Delaware Secretary of State | |
Applied Synergistics, Inc. | Delaware Secretary of State | |
Babcock & Wilcox China Holdings, Inc. | Delaware Secretary of State | |
Babcock & Wilcox Construction Co., Inc. | Delaware Secretary of State | |
Babcock & Wilcox Denmark Holdings, Inc. | Delaware Secretary of State | |
Babcock & Wilcox Ebensburg Power, Inc. | Delaware Secretary of State | |
Babcock & Wilcox Equity Investments, Inc. | Delaware Secretary of State | |
Babcock & Wilcox India Holdings, Inc. | Delaware Secretary of State | |
Babcock & Wilcox International Sales and | Delaware Secretary of State | |
Service Corporation | ||
Babcock & Wilcox International, Inc. | Delaware Secretary of State | |
Babcock & Wilcox Investment Company | Delaware Secretary of State | |
Babcock & Wilcox Modular Nuclear Energy | ||
LLC | Delaware Secretary of State | |
Babcock & Wilcox Nuclear Energy, Inc. | Delaware Secretary of State | |
Babcock & Wilcox Power Generation Group, | Delaware Secretary of State | |
Inc. | ||
Babcock & Wilcox Technology, Inc. | Delaware Secretary of State | |
Delta Power Services, LLC | Delaware Secretary of State | |
Diamond Operating Co., Inc. | Delaware Secretary of State | |
Diamond Power Australia Holdings, Inc. | Delaware Secretary of State | |
Diamond Power China Holdings, Inc. | Delaware Secretary of State | |
Diamond Power Equity Investments, Inc. | Delaware Secretary of State | |
Diamond Power International, Inc. | Delaware Secretary of State | |
DPS Berkeley, LLC | Delaware Secretary of State | |
DPS Cadillac, LLC | Delaware Secretary of State | |
DPS Florida, LLC | Delaware Secretary of State | |
DPS Gregory, LLC | Delaware Secretary of State | |
DPS Lowell Cogen, LLC | Delaware Secretary of State | |
DPS Mecklenburg, LLC | Delaware Secretary of State | |
DPS Michigan, LLC | Delaware Secretary of State | |
DPS Mojave, LLC | Delaware Secretary of State | |
DPS Sabine, LLC | Delaware Secretary of State | |
Intech, Inc. | Tennessee Secretary of State | |
Ivey-Cooper Services, L.L.C. | Tennessee Secretary of State | |
National Ecology Company | Delaware Secretary of State |
Schedule 3.3 Page 1
O&M Holding Company | Delaware Secretary of State | |
Palm Beach Resource Recovery Corporation | Florida Secured Transaction Registry | |
Power Systems Operations, Inc. | Delaware Secretary of State | |
Revloc Reclamation Service, Inc. | Delaware Secretary of State | |
SOFCo EFS Holdings LLC | Delaware Secretary of State | |
The Babcock & Wilcox Company | Delaware Secretary of State |
To perfect the Lien in Fixtures, a UCC1 Financing Statement listing the applicable Grantor, as debtor, and the Collateral Agent, as secured party, should be filed in the real property records of the county in which such Fixtures are located. Each such UCC1 Financing Statement will need to include a legal description of the real property upon which such Fixtures are located.
Actions with respect to Pledged Securities
The original of all Pledged Securities evidence by either a Certificated Security or Instrument should be delivered to the Collateral Agent, together with an undated stock or note power, as applicable, duly executed in blank by the applicable Grantor.
Actions with respect to Patents and Trademarks
For Collateral consisting of Patents and Trademarks, the applicable Grantors should execute an Intellectual Property Security Agreement, and such agreement should be recorded with the United States Patent and Trademark Office.
Actions with respect to Copyrights
For Collateral consisting of Copyrights, the applicable Grantors should execute an Intellectual Property Security Agreement, and such agreement should be recorded with the United States Copyright Office.
Schedule 3.3 Page 2
SCHEDULE 3.4
TO PLEDGE AND SECURITY AGREEMENT
NAME; JURISDICTION OF ORGANIZATION, ETC.
Exact Legal Name of Grantor | Type of Organization | Jurisdiction of Organization | Chief Executive Office | Organizational Identification Number | ||||
Americon Equipment Services, Inc. | Corporation | Delaware | 74 Robinson Avenue Barberton, OH 44203 | 2077236 | ||||
Americon, Inc. | Corporation | Delaware | 74 Robinson Avenue Barberton, OH 44203 | 2058172 | ||||
Applied Synergistics, Inc. | Corporation | Delaware | 1019 Dillard Drive Lynchburg, VA ###-###-#### | 3596853 | ||||
Babcock & Wilcox China Holdings, Inc. | Corporation | Delaware | 20 S. Van Buren Ave. Barberton, OH ###-###-#### | 3563042 | ||||
Babcock & Wilcox Construction Co., Inc. | Corporation | Delaware | 74 Robinson Avenue Barberton, OH 44203 | 2058181 | ||||
Babcock & Wilcox Denmark Holdings, Inc. | Corporation | Delaware | 20 S. Van Buren Ave. Barberton, OH ###-###-#### | 3563041 | ||||
Babcock & Wilcox Ebensburg Power, Inc. | Corporation | Delaware | 20 S. Van Buren Avenue Barberton, OH 44203 | 2109431 | ||||
Babcock & Wilcox Equity Investments, Inc. | Corporation | Delaware | 20 S. Van Buren Ave. Barberton, OH ###-###-#### | 2050183 | ||||
Babcock & Wilcox India Holdings, Inc. | Corporation | Delaware | 20 S. Van Buren Ave. Barberton, OH ###-###-#### | 4795557 | ||||
Babcock & Wilcox International Sales and Service Corporation | Corporation | Delaware | 20 S. Van Buren Ave. Barberton, OH ###-###-#### | 0795023 | ||||
Babcock & Wilcox International, Inc. | Corporation | Delaware | 20 S. Van Buren Ave. Barberton, OH ###-###-#### | 0914783 | ||||
Babcock & Wilcox Investment Company | Corporation | Delaware | The Harris Building, 13024 Ballantyne Corporate Place, Suite 700, Charlotte, North Carolina 28277 | 2235817 | ||||
Babcock & Wilcox Modular Nuclear Energy LLC | Limited Liability Company | Delaware | 2016 Mount Athos Road Lynchburg, VA ###-###-#### | 4697877 | ||||
Babcock & Wilcox Nuclear Energy, Inc. | Corporation | Delaware | 2016 Mount Athos Road Lynchburg, VA ###-###-#### | 4293945 | ||||
Babcock & Wilcox Power Generation Group, Inc. | Corporation | Delaware | 20 S. Van Buren Ave. Barberton, OH ###-###-#### | 0847234 |
Schedule 3.4 Page 1
Exact Legal Name of Grantor | Type of Organization | Jurisdiction of Organization | Chief Executive Office | Organizational Identification Number | ||||
Babcock & Wilcox Technology, Inc. | Corporation | Delaware | 2016 Mount Athos Road Lynchburg, VA ###-###-#### | 2725506 | ||||
Delta Power Services, LLC | Limited Liability Company | Delaware | 363 N. Sam Houston Parkway E, Suite 350 Houston, TX 77060 | 3363308 | ||||
Diamond Operating Co., Inc. | Corporation | Delaware | 185 Great Valley Parkway Malvern, PA ###-###-#### | 3498044 | ||||
Diamond Power Australia Holdings, Inc. | Corporation | Delaware | 2600 E. Main Street Lancaster, OH 43130 | 3563045 | ||||
Diamond Power China Holdings, Inc. | Corporation | Delaware | 2600 E. Main Street Lancaster, OH 43130 | 3563044 | ||||
Diamond Power Equity Investments, Inc. | Corporation | Delaware | 2600 E. Main Street Lancaster, OH 43130 | 3563043 | ||||
Diamond Power International, Inc. | Corporation | Delaware | 2600 E. Main Street Lancaster, OH 43130 | 2725505 | ||||
DPS Berkeley, LLC | Limited Liability Company | Delaware | 363 N. Sam Houston Parkway E, Suite 350 Houston, TX 77060 | 3685555 | ||||
DPS Cadillac, LLC | Limited Liability Company | Delaware | 363 N. Sam Houston Parkway E, Suite 350 Houston, TX 77060 | 4111828 | ||||
DPS Florida, LLC | Limited Liability Company | Delaware | 363 N. Sam Houston Parkway E, Suite 350 Houston, TX 77060 | 4050781 | ||||
DPS Gregory, LLC | Limited Liability Company | Delaware | 363 N. Sam Houston Parkway E, Suite 350 Houston, TX 77060 | 3879537 | ||||
DPS Lowell Cogen, LLC | Limited Liability Company | Delaware | 363 N. Sam Houston Parkway E, Suite 350 Houston, TX 77060 | 4060363 | ||||
DPS Mecklenburg, LLC | Limited Liability Company | Delaware | 363 N. Sam Houston Parkway E, Suite 350 Houston, TX 77060 | 3860060 | ||||
DPS Michigan, LLC | Limited Liability Company | Delaware | 363 N. Sam Houston Parkway E, Suite 350 Houston, TX 77060 | 3768604 | ||||
DPS Mojave, LLC | Limited Liability Company | Delaware | 363 N. Sam Houston Parkway E, Suite 350 Houston, TX 77060 | 3950476 | ||||
DPS Sabine, LLC | Limited Liability Company | Delaware | 363 N. Sam Houston Parkway E, Suite 350 Houston, TX 77060 | 4138849 | ||||
Intech, Inc. | Corporation | Tennessee | 2802 Belle Arbor Drive Chattanooga, TN 37406 | 282042 | ||||
Ivey-Cooper Services, L.L.C | Limited Liability Company | Tennessee | 2815 Belle Arbor Drive Chattanooga, TN 37406 | 0401423 |
Schedule 3.4 Page 2
Exact Legal Name of Grantor | Type of Organization | Jurisdiction of Organization | Chief Executive Office | Organizational Identification Number | ||||
National Ecology Company | Corporation | Delaware | 20 S. Van Buren Ave. Barberton, OH ###-###-#### | 2209966 | ||||
O&M Holding Company | Corporation | Delaware | 20 S. Van Buren Ave. Barberton, OH ###-###-#### | 4568185 | ||||
Palm Beach Resource Recovery Corporation | Corporation | Florida | 6101 West 45th Street West Palm Beach, FL 33410 | H27351 | ||||
Power Systems Operations, Inc. | Corporation | Delaware | 20 S. Van Buren Avenue Barberton, OH ###-###-#### | 2074007 | ||||
Revloc Reclamation Service, Inc. | Corporation | Delaware | 20 S. Van Buren Avenue Barberton, OH ###-###-#### | 2234938 | ||||
SOFCo EFS Holdings LLC | Limited Liability Company | Delaware | 20 S. Van Buren Ave. Barberton, Ohio 44203 | 3494936 | ||||
The Babcock & Wilcox Company | Corporation | Delaware | The Harris Building, 13024 Ballantyne Corporate Place, Suite 700, Charlotte, North Carolina 28277 | 100714367 |
Prior Names during last 5 years:
On November 20, 2007, The Babcock & Wilcox Company changed its name to Babcock & Wilcox Power Generation Group, Inc.
On November 20, 2007, The Babcock & Wilcox Companies changed its name to The Babcock & Wilcox Company, and then on March 8, 2010, changed its name to Babcock & Wilcox Investment Company
On April 20, 2010, McDermott Technology, Inc. changed its name to Babcock & Wilcox Technology, Inc.
On April 29, 2010, Babcock & Wilcox Nuclear Power Generation Group, Inc. changed its name to Babcock & Wilcox Nuclear Energy, Inc.
Schedule 3.4 Page 3
Prior Addresses during last 5 years:
The former chief executive office of Americon Equipment Services, Inc. was located at: 3333 Copley Road, Copley, OH 44321.
The former chief executive office of the following entities was located at 90 E. Tuscarawas Ave., Barberton, OH 44203:
Americon, Inc.
Babcock & Wilcox Construction Co., Inc.
The former chief executive office of the following entities was located at 1450 Poydras Street, New Orleans, LA 70112:
Babcock & Wilcox Equity Investments, Inc.
Babcock & Wilcox Holdings, Inc.
Babcock & Wilcox International Sales and Service Corporation
Babcock & Wilcox International, Inc.
Babcock & Wilcox Investment Company
Babcock & Wilcox Power Generation Group, Inc.
The former chief executive office of the following entities was located at 1415 Louisiana Street, Suite 3500, Houston, TX 77002:
Delta Power Services, LLC
DPS Cadillac, LLC
DPS Florida, LLC
DPS Mojave, LLC
The former chief executive office of the following entities was located at 67 Park Place East, Morristown, NJ 07960:
DPS Berkeley, LLC
DPS Michigan, LLC
The former chief executive office of the following entities was located at 7022 Wild Violet Drive, Humble, TX 77346:
DPS Gregory, LLC
DPS Mecklenburg, LLC
The former chief executive office of DPS Lowell Cogen, LLC was located at: 282 Western Avenue, Lowell, MA 01852
The former chief executive office of DPS Sabine, LLC was located at: 4647 FM1006 at: 4647 FM 1006 at Lanxess Plant, Orange, TX
The former chief executive office of Babcock & Wilcox Investment Company was located at: 800 Main Street, Lynchburg, VA, 25404
Schedule 3.4 Page 4
SCHEDULE 3.7
TO PLEDGE AND SECURITY AGREEMENT
INVESTMENT PROPERTY
Pledged Stock:
Grantor | Issuer | Type of Organization | # of Shares Owned | Total Shares Outstanding | % of Interest Pledged1 | Certificate No. | Par Value per share | |||||||
Americon, Inc. | Americon Equipment Services, Inc. | Corporation | 1,000 | 1,000 | 100% | 1 | $1.00 | |||||||
Babcock & Wilcox Power Generation Group, Inc. | Americon, Inc. | Corporation | 100 | 100 | 100% | 2 | $10.00 | |||||||
Diamond Power International, Inc. | Applied Synergistics, Inc. | Corporation | 1,000 | 1,000 | 100% | 2 | 1.00 | |||||||
Babcock & Wilcox Power Generation Group, Inc. | Babcock & Wilcox Canada Ltd.2 | Corporation | 500,000 | 500,000 | 65% | 1 | None | |||||||
Babcock & Wilcox Equity Investments, Inc. | Babcock & Wilcox China Holdings, Inc. | Corporation | 1,000 | 1,000 | 100% | 1 | $1.00 | |||||||
Americon, Inc. | Babcock & Wilcox Construction Co., Inc. | Corporation | 100 | 100 | 100% | 2 | $10.00 | |||||||
Babcock & Wilcox Equity Investments, Inc. | Babcock & Wilcox Denmark Holdings, Inc. | Corporation | 1,000 | 1,000 | 100% | 1 | $1.00 |
1 | Notwithstanding any Grantors delivery to the Collateral Agent of any Certificated Security evidencing more than 65% of the Voting Stock of any Foreign Subsidiary, the Collateral does not include any Excluded Stock. |
2 | The stock certificate lists the issuing entity as Babcock & Wilcox Industries Ltd., which is the prior legal name of Babcock & Wilcox Canada Ltd. |
Schedule 3.7 Page 1
Grantor | Issuer | Type of Organization | # of Shares Owned | Total Shares Outstanding | % of Interest Pledged1 | Certificate No. | Par Value per share | |||||||
Babcock & Wilcox Equity Investments, Inc. | Babcock & Wilcox Ebensburg Power, Inc. | Corporation | 1,000 | 1,000 | 100% | 1 | $1.00 | |||||||
Babcock & Wilcox Power Generation Group, Inc. | Babcock & Wilcox Equity Investments, Inc. | Corporation | 1,000 | 1,000 | 100% | 3 | $1.00 | |||||||
Babcock & Wilcox Equity Investments, Inc. | Babcock & Wilcox India Holdings, Inc. | Corporation | 1,000 | 1,000 | 100% | 1 | $1.00 | |||||||
Babcock & Wilcox Power Generation Group, Inc. | Babcock & Wilcox India Private Limited | Corporation | 675,000 | 675,020 | 65% | 05 | 10 Indian Rupees | |||||||
Babcock & Wilcox Investment Company | 20 | 65% | 03 & 04 | 10 Indian Rupees | ||||||||||
Babcock & Wilcox Power Generation Group, Inc. | Babcock & Wilcox International Sales and Service Corporation | Corporation | 1,000 | 1,000 | 100% | 5 | $1.00 | |||||||
Babcock & Wilcox Power Generation Group, Inc. | Babcock & Wilcox International, Inc. | Corporation | 1,000 | 1,000 | 100% | 3 | $10,000 | |||||||
Babcock & Wilcox Power Generation Group, Inc. | Babcock & Wilcox International Investments Co., Inc. | Corporation | 100,000 | 100,000 | 65% | 2 | None | |||||||
The Babcock & Wilcox Company | Babcock & Wilcox Investment Company | Corporation | 1,000 | 1,000 | 100% | 6 | $1.00 | |||||||
Babcock & Wilcox | Babcock & Wilcox | Corporation | 1,000 | 1,000 | 100% | 3 | $1.00 |
Schedule 3.7 Page 2
Grantor | Issuer | Type of Organization | # of Shares Owned | Total Shares Outstanding | % of Interest Pledged1 | Certificate No. | Par Value per share | |||||||
Investment Company
(formerly, The Babcock & Wilcox Company) | Nuclear Energy, Inc.
(formerly, Babcock & Wilcox Nuclear Power Generation Group, Inc.) | |||||||||||||
Babcock & Wilcox Investment Company
(formerly, The Babcock & Wilcox Company) | Babcock & Wilcox Power Generation Group, Inc.
(formerly, The Babcock & Wilcox Company) | Corporation | 100,100 | 100,100 | 100% | 5 | $1.00 | |||||||
Babcock & Wilcox Investment Company | Babcock & Wilcox Technology, Inc. | Corporation | 1,000 | 1,000 | 100% | 5 | $1.00 | |||||||
(formerly, The Babcock & Wilcox Company) | (formerly, McDermott Technology, Inc.) | |||||||||||||
Babcock & Wilcox Denmark Holdings, Inc. | Babcock & Wilcox Volund ApS | Corporation | 100,000 | 100,000 | 65% | uncertificated | 100 Danish Kroners | |||||||
Babcock & Wilcox Power Generation Group, Inc. | B&W de Panama, Inc. | Corporation | 100,000 | 100,000 | 65% | 2 | None | |||||||
Diamond Power International, Inc. | Diamond Operating Co., Inc. | Corporation | 1,000 | 1,000 | 100% | 1 | $1.00 | |||||||
Diamond Power Equity Investments, Inc. | Diamond Power Australia Holdings, Inc. | Corporation | 1,000 | 1,000 | 100% | 1 | $1.00 |
Schedule 3.7 Page 3
Grantor | Issuer | Type of Organization | # of Shares Owned | Total Shares Outstanding | % of Interest Pledged1 | Certificate No. | Par Value per share | |||||||
Diamond Power Equity Investments, Inc. | Diamond Power China Holdings, Inc. | Corporation | 1,000 | 1,000 | 100% | 1 | $1.00 | |||||||
Diamond Power International, Inc. | Diamond Power Equity Investments, Inc. | Corporation | 1,000 | 1,000 | 100% | 1 | $1.00 | |||||||
Babcock & Wilcox Power Generation Group, Inc. | Diamond Power International, Inc. | Corporation | 1,000 | 1,000 | 100% | 2 | $1.00 | |||||||
Diamond Power International, Inc. | Diamond Power Services S.E.A. Ltd. | Corporation | 623 Ordinary shares | 784 ** Ordinary shares and 496** Preference shares | 100% | 21 & 22 | 3.700 Thai Baht | |||||||
Diamond Power International, Inc. | Diamond Power Specialty (Proprietary) Limited | Corporation | 1 | 1 | 65% | 2 | 1.00 South African Rand | |||||||
Diamond Power International, Inc.3 | Diamond Power Specialty Limited | Corporation | 500,000 | 500,000 | 65% | 14 & 21 | 1.00 Pound Sterling | |||||||
Babcock & Wilcox Nuclear Energy, Inc.
(formerly, Babkcock & Wilcox Nuclear Power Generation Group, Inc.) | Intech, Inc. | Corporation | 2,500 | 2,500 | 100% | 15 | No par |
3 | The stock certificates list the registered proprietor as Babcock & Wilcox International Sales and Service Corporation. Certificates have not been reissued since the transfer of ownership to Diamond Power International, Inc. |
Schedule 3.7 Page 4
Grantor | Issuer | Type of Organization | # of Shares Owned | Total Shares Outstanding | % of Interest Pledged1 | Certificate No. | Par Value per share | |||||||
Babcock & Wilcox Power Generation Group, Inc. | National Ecology Company | Corporation | 1,000 | 1,000 | 100% | 4 | $1.00 | |||||||
Babcock & Wilcox Power Generation Group, Inc. | North County Recycling, Inc. | Corporation | 300 | 300 | 100% | 5 | $1.00 | |||||||
Power Systems Operations, Inc. | O&M Holding Company | Corporation | 1,000 | 1,000 | 100% | 1 | $1.00 | |||||||
Babcock & Wilcox Equity Investments, Inc. | P. T. Babcock & Wilcox Asia | Corporation | 792 | 800 | 65% | 0001 - 0297 | $500.00 | |||||||
Babcock & Wilcox International Sales and Service Corporation | 8 | 65% | 0298 - 0300 | $500.00 | ||||||||||
Power Systems Operations, Inc. | Palm Beach Resource Recovery Corporation | Corporation | 60 | 60 | 100% | 2 | No par | |||||||
Babcock & Wilcox Power Generation Group, Inc. | Power Systems Operations, Inc. | Corporation | 1,000 | 1,000 | 100% | 2 | $10.00 | |||||||
Power Systems Operations, Inc. | Revloc Reclamation Service, Inc. | Corporation | 1,000 | 1,000 | 100% | 1 | $1.00 |
Footnotes
Schedule 3.7 Page 5
** | The 623 Ordinary shares owned by Diamond Power International constitute a majority of the Ordinary shares, but only account for a 48.67% effective ownership. Phothi-Ratana Engineering Co., Ltd. owns all 496 preference shares, which constitute a 50.94% effective ownership. |
Schedule 3.7 Page 6
Pledged LLC Interests:
Grantor | Issuer | Type of Organization | # of Shares Owned | Total Shares Outstanding | % of Interest Pledged4 | Certificate No. | Par Value per share | |||||||
Babcock & Wilcox Nuclear Energy, Inc. | Babcock & Wilcox Modular Nuclear Energy LLC | Limited Liability Company | N/A | N/A | 100% | uncertificated | N/A | |||||||
O&M Holding Company | Delta Power Services, LLC | Limited Liability Company | N/A | N/A | 100% | uncertificated | N/A | |||||||
Diamond Power International, Inc. | Diamond Power do Brasil Limitada | Limited Liability Company (Brazil) | 297,000 quotas | 300,000 quotas | 65% | uncertificated | 1.00 Brazilian Real | |||||||
Babcock & Wilcox International Sales and Service Corporation | 3,000 quotas | 65% | ||||||||||||
Delta Power Services, LLC | DPS Berkeley, LLC | Limited Liability Company | N/A | N/A | 100% | uncertificated | N/A | |||||||
Delta Power Services, LLC | DPS Cadillac, LLC | Limited Liability Company | N/A | N/A | 100% | uncertificated | N/A | |||||||
Delta Power Services, LLC | DPS Florida, LLC | Limited Liability Company | N/A | N/A | 100% | uncertificated | N/A | |||||||
Delta Power Services, LLC | DPS Gregory, LLC | Limited Liability Company | N/A | N/A | 100% | uncertificated | N/A | |||||||
Delta Power Services, LLC | DPS Lowell Cogen, LLC | Limited Liability Company | N/A | N/A | 100% | uncertificated | N/A | |||||||
Delta Power Services, LLC | DPS Mecklenburg, LLC | Limited Liability Company | N/A | N/A | 100% | uncertificated | N/A | |||||||
Delta Power Services, LLC | DPS Michigan, LLC | Limited Liability Company | N/A | N/A | 100% | uncertificated | N/A |
4 | Notwithstanding any Grantors delivery to the Collateral Agent of any Certificated Security evidencing more than 65% of the Voting Interest of any Foreign Subsidiary, the Collateral does not include any Excluded Stock. |
Schedule 3.7 Page 7
Grantor | Issuer | Type of Organization | # of Shares Owned | Total Shares Outstanding | % of Interest Pledged4 | Certificate No. | Par Value per share | |||||||
Delta Power Services, LLC | DPS Mojave, LLC | Limited Liability Company | N/A | N/A | 100% | uncertificated | N/A | |||||||
Delta Power Services, LLC | DPS Piedmont, LLC | Limited Liability Company | N/A | N/A | 100% | uncertificated | N/A | |||||||
Delta Power Services, LLC | DPS Sabine, LLC | Limited Liability Company | N/A | N/A | 100% | uncertificated | N/A | |||||||
Babcock & Wilcox Equity Investments, Inc. | Ivey Cooper Services, L.L.C. | Limited Liability Company | N/A | N/A | 100% | uncertificated | N/A | |||||||
Babcock & Wilcox Technology, Inc. | SOFCo-EFS Holdings, LLC | Limited Liability Company | N/A | N/A | 100% | uncertificated | N/A |
Pledged Partnership Interests:
Babcock & Wilcox Ebensburg Power, Inc. owns a 49.5% general partnership interest in Ebensburg Power Company (which general partnership interest is uncertificated). Babcock & Wilcox Ebensburg Power, Inc. owns a 1% general partnership interest in Ebensburg Investors Limited Partnership (an unaffiliated third party), which in turn owns the other 50.5% general partnership interest in Ebensburg Power Company.
Pledged Trust Interests:
None.
Pledged Notes:
Amended and Restated Global Intercompany Note dated as of August 6, 2010, payable by the New Borrower and certain of its Subsidiaries to the order of New Borrower, as applicable, and certain of its Subsidiaries extending credit thereunder
Pledged Commodities Contracts:
None.
Schedule 3.7 Page 8