SIXTH AMENDMENT, CONSENT AND WAIVER
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"), Xxxxxxx
& Xxxxxx Technical Services Group, Inc. (formerly known as BWXT Services,
Inc.), BWXT Federal Services, Inc. and Xxxxxxx & Xxxxxx 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.
HOUSTON\2235223.5
Section
2. Consent.
(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 and
remedies available to them in connection with any present or future defaults
with respect to the Credit Agreement or any other provision of any Credit
Document.
Section
3. Amendment. The
definition of "Consolidated EBITDA" in Section 1.1 of the Credit Agreement is
hereby amended in its entirety as follows:
"Consolidated EBITDA"
means, for any period of determination, (a) Consolidated Net Income for such
period of determination plus (b) to the
extent deducted in determining Consolidated Net Income, Consolidated Interest
Expense, charges against income for foreign, federal, state, and local taxes,
and depreciation and amortization expense for such period minus (c)
extraordinary gains for such period minus (d) any gain
realized upon the sale or other disposition of any assets of the Borrower or any
of its Subsidiaries for such period (other than sales of inventory in the
ordinary course of business of the Borrower or such Subsidiary) plus (e) any non-cash
allocation of qualified pension plan expense by XxXxxxxxx for such period plus (f) for the
purposes of calculating the Fixed Charge Coverage Ratio only, any operating
losses incurred by NFS Holdings, Inc. and its Subsidiaries prior to the
Borrower's acquisition thereof, all as determined on a consolidated basis in
accordance with GAAP; provided that,
"Consolidated EBITDA" shall be (i) reduced to the extent that Consolidated Net
Income for such period includes net income attributable to Joint Ventures during
such period in excess of the actual distributions received from such Joint
Ventures during such period, and (ii) increased to the extent that actual cash
distributions are received from such Joint Ventures during such period in excess
of the portion of Consolidated Net Income which is attributable to such Joint
Ventures during such period.
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Conditions to
Effectiveness. This Consent shall become effective as of the
Effective Date when the Agent shall have received counterparts hereof duly
executed by the Borrower, the Agent and the Required Lenders.
Section
4. Representations and
Warranties. Each Credit Party jointly and severally represents
and warrants as follows:
(a) the
execution, delivery, and performance of this Consent are within the corporate
power and authority of the Credit Parties and have been duly authorized by
appropriate proceedings;
(b) this
Consent constitutes legal, valid, and binding obligations of the Credit Parties
enforceable in accordance with its terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting
the rights of creditors generally and general principles of equity;
(c) the
representations and warranties of the Credit Parties contained in the Credit
Agreement and the other Credit Documents are true and correct in all material
respects on and as of the date hereof as though made on and as of the date
hereof, except to the extent such representations and warranties relate solely
to an earlier date; and
(d) after
giving effect to this Consent, no event has occurred and is continuing which
constitutes an Event of Default or that with the passage of time would
constitute an Event of Default.
Section
5. Ratification. Except
to the extent modified by this Consent, the Credit Agreement and all other
Credit Documents executed in connection therewith to which the Borrower or any
other Credit Party is a party shall remain in full force and effect, and all
rights and powers created thereby or thereunder are in all respects ratified and
confirmed. The Borrower and the Credit Parties agree that all
obligations of the Borrower and each other Credit Party under the Credit
Agreement as modified by this Consent and all other Credit Documents to which
the Borrower or any other Credit Party is a party are hereby reaffirmed and
renewed.
Section
6. Governing
Law. This Consent shall be governed by and interpreted in
accordance with the laws of the State of New York.
Section
7. Counterparts. This
Consent may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of a signature
page to this Consent by facsimile shall be effective as delivery of an original
executed counterpart of this Consent.
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Executed as of the date first written
above.
BORROWER:
BWX
TECHNOLOGIES, INC.
By:
Xxxxx X. Xxxxx
Vice President and
Treasurer
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By:
Name:
Title:
By:
Name:
Title:
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THE BANK OF NOVA SCOTIA, as a
Lender
By:
Name:
Title:
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XXXXX FARGO BANK, N.A., as a
Lender
By:
Name:
Title:
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ALLIED IRISH BANKS, PLC, as a
Lender
By:
Name:
Title:
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COMPASS BANK, as a Lender
By:
Name:
Title:
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AMEGY
BANK N.A., as a Lender
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By:
Name:
Title:
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ACKNOWLEDGMENT
AND CONSENT
To induce
the Administrative Agent and the Lenders to execute the foregoing Consent and Waiver, the
undersigned Credit Party hereby (a) consents to the execution, delivery and
performance of such Consent and
Waiver, (b) agrees that (1) neither any Credit Document executed by it
nor any obligation of any of the undersigned nor any right or remedy of the
Administrative Agent or any Lender with respect to any undersigned Credit Party
is released or impaired by such Consent and Waiver, and (2) this
acknowledgment and consent shall not be construed as requiring the consent or
agreement of any undersigned Credit Party in any circumstance, and (c) ratifies
and confirms all
provisions of the Credit Documents executed by it.
GUARANTORS:
XXXXXXX
& XXXXXX TECHNICAL SERVICES GROUP, INC.
By:
Xxxxx X. Xxxxx
Treasurer
BWXT
FEDERAL SERVICES, INC.
By:
Xxxxx X. Xxxxx
Treasurer
XXXXXXX
& XXXXXX NUCLEAR OPERATIONS GROUP, INC.
By:
Xxxxx X. Xxxxx
Treasurer
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