THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT
EXHIBIT
4.4
THIRD
AMENDMENT TO REVOLVING CREDIT AGREEMENT
This
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Amendment"), dated as
of December 22, 2006, is entered into by BWX Technologies, Inc. (the "Borrower"), BWXT
Services, Inc. and BWXT Federal Services, 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 and the Second Amendment
to Revolving Credit Agreement dated as of November 7, 2005 (the "Credit Agreement");
and
WHEREAS,
the Borrower, the Guarantors, the Lenders and the Administrative Agent wish to,
subject to the terms and conditions of this Amendment, amend the Credit
Agreement as provided for herein.
AGREEMENT
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 is hereby acknowledged, the parties hereto agree as
follows:
Section
1. Definitions. Unless
otherwise defined in this Amendment, each term used in this Amendment that is
defined in the Credit Agreement has the meaning assigned to such term in the
Credit Agreement.
Section
2. Amendments to Credit
Agreement. Section 1.1 of the Credit Agreement is amended by
changing the definition of "Change of Control" to read in its entirety as
follows:
"Change of Control"
means any of (a) the acquisition by any Person or group (within the meaning of
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) (excluding
underwriters in the course of their distribution of voting stock in an
underwritten public offering), of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended) of
30% or more of the voting power of the outstanding shares of voting stock of
MII, (b) the Borrower shall cease to be a direct, wholly-owned Subsidiary of
either (i) BWICO or, (ii) if BWICO ceases to be a direct, wholly-owned
Subsidiary of McDermott, McDermott, (c) XxXxxxxxx ceases to be a direct or
indirect, wholly-owned Subsidiary of MII, (d) 50% or more of the members of the
Board of Directors of the Borrower on any date shall not have been (i) members
of the Board of Directors of the Borrower on the date 12 months prior to such
date or (ii) approved (by recommendation, nomination, election or otherwise) by
Persons who constitute at least a majority of the members of the Board of
Directors of the Borrower as constituted on the date 12 months prior to such
date, (e) all or substantially all of the assets of the Borrower are sold in a
single transaction or series of related transactions to any Person or (f) the
Borrower merges or consolidates with or into any other Person, with the effect
that immediately after such transaction the stockholders of the Borrower
immediately prior to such transaction hold less than a majority of the total
voting power entitled to vote in the election of directors, managers or trustees
of the Person surviving such transaction.
Section
3. Effectiveness. The
Credit Agreement shall be amended as provided in this Amendment as of the first
date written above upon receipt by the Administrative Agent of duly and validly
executed originals of this Amendment from each of the parties
hereto.
Section
4. Representations and
Warranties. Each Credit Party jointly and severally represents
and warrants as follows:
(a) the
execution, delivery, and performance of this Amendment are within the corporate
power and authority of the Credit Parties and have been duly authorized by
appropriate proceedings;
(b) this
Amendment 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 Amendment, 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 Amendment, 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 Amendment 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 Amendment shall be governed by and interpreted in
accordance with the laws of the State of New York.
Section
7. Counterparts. This
Amendment 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 Amendment by facsimile shall be effective as delivery of an
original executed counterpart of this Amendment.
[Signature
pages follow]
HOUSTON\2025096.1
Executed as of the date first written
above.
BORROWER:
BWX
TECHNOLOGIES, INC.
By:
Xxxxx X. Xxxxx
Vice President and
Treasurer
GUARANTORS:
BWXT
SERVICES, INC.
By:
Xxxxx X. Xxxxx
Treasurer
BWXT
FEDERAL SERVICES, INC.
By:
Xxxxx X. Xxxxx
Treasurer
|
|
By:
Name:
Title:
By:
Name:
Title:
THE BANK OF NOVA SCOTIA, as a
Lender
By:
Name:
Title:
XXXXX FARGO BANK, N.A., as a
Lender
By:
Name:
Title:
ALLIED IRISH BANKS, PLC, as a
Lender
By:
Name:
Title:
COMPASS BANK, as a Lender
By:
Name:
Title:
|
|
AMEGY
BANK N.A. (formerly known as Southwest Bank of Texas, N.A.), as a
Lender
|
By:
Name:
Title:
