Babcock & Wilcox Enterprises, Inc. (Form: 10-Q/A, Received: 11/09/2022 17:17:54)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-Q/A

(Amendment No. 1)

(Mark One)

x	QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended September 30, 2022

¨	TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from to

Commission File No. 001-36876

BABCOCK & WILCOX ENTERPRISES, INC.

(Exact name of registrant as specified in its charter)

Delaware		47-2783641
(State or other Jurisdiction of Incorporation or Organization)		(I.R.S. Employer Identification No.)

1200 East Market Street, Suite 650
Akron, Ohio		44305
(Address of Principal Executive Offices)		(Zip Code)

Registrant's Telephone Number, Including Area Code: (330) 753-4511

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common Stock, $0.01 par value	BW	New York Stock Exchange
8.125% Senior Notes due 2026	BWSN	New York Stock Exchange
6.50% Senior Notes due 2026	BWNB	New York Stock Exchange
7.75% Series A Cumulative Perpetual Preferred Stock	BW PRA	New York Stock Exchange

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes x No ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of "large accelerated filer," "accelerated filer," "smaller reporting company," and "emerging growth company" in Rule 12b-2 of the Exchange Act.

Large accelerated filer	¨	Accelerated filer	x

Non-accelerated filer	¨	Smaller reporting company	¨

		Emerging growth company	¨

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).

Yes ¨ No x

The number of shares of the registrant's common stock outstanding at October 31, 2022 was 88,633,634.

EXPLANATORY NOTE

Babcock & Wilcox Enterprises, Inc. (the “Company”) is filing this Amendment No. 1 on Form 10-Q (this “Amendment”) to amend its Quarterly Report on Form 10-Q for the quarter ended September 30, 2022 (the “Original 10-Q”), filed with the Securities and Exchange Commission on November 8, 2022 (the “Original Filing Date”), for the purpose of filing Exhibits 10.1 and 10.2, which were inadvertently omitted from the Original 10-Q.

Additionally, in connection with the filing of this Amendment No. 1, the Company is including new certifications of the Company’s chief executive officer and chief financial officer pursuant to Rule 13a-14(a) of the Securities Exchange Act of 1934, as amended. The Company is not including new certifications pursuant to Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. 1350) as no financial statements are being filed with this Amendment No. 1.

This Amendment does not reflect events occurring after the date of the filing of the Original 10-Q and, other than with respect to the exhibits and certifications described above, does not amend the Original 10-Q in any way and does not modify or otherwise update any disclosures contained in the Original 10-Q, which continues to speak as of the Original Filing Date (including, but not limited to, any forward-looking statements made in the Original 10-Q, which have not been revised to reflect events that occurred or facts that became known after the date of the Original 10-Q, and such forward-looking statements should be read in their historical context). Accordingly, this Amendment should be read in conjunction with the Original 10-Q and the Company’s other filings made with the Commission.

This Amendment consists solely of the preceding cover page, this explanatory note, the exhibit index, the signature page and Exhibits 10.1, 10.2, 31.3 and 31.4.

Item 6. Exhibits

10.1		Amendment No. 1 to Revolving Credit, Guaranty and Security Agreement, dated as of August 8, 2022, by and among Babcock & Wilcox Enterprises, Inc. and PNC Bank, National Association, as administrative agent, lender and swing loan lender.

10.2		Amendment No. 1 to Reimbursement, Guaranty and Security Agreement, dated as of August 8, 2022, by and among Babcock & Wilcox Enterprises, Inc. and MSD PCOF Partners XLV, LLC, as administrative agent.

31.3		Rule 13a-14(a)/15d-14(a) certification of Chief Executive Officer.

31.4		Rule 13a-14(a)/15d-14(a) certification of Chief Financial Officer.

101.SCH		XBRL Taxonomy Extension Schema Document.

101.CAL		XBRL Taxonomy Extension Calculation Linkbase Document.

101.LAB		XBRL Taxonomy Extension Label Linkbase Document.

101.PRE		XBRL Taxonomy Extension Presentation Linkbase Document.

101.DEF		XBRL Taxonomy Extension Definition Linkbase Document.

104		Cover Page Interactive Data File (embedded within the inline XBRL document)

SIGNATURES

Pursuant to the requirements of the Section 13 or 15(d) of Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

		BABCOCK & WILCOX ENTERPRISES, INC.

November 9, 2022	By:	/s/ Louis Salamone
		Louis Salamone
		Executive Vice President, Chief Financial Officer and Chief Accounting Officer (Principal Financial and Accounting Officer and Duly Authorized Representative)

Exhibit 10.1

EXECUTION VERSION

FIRST AMENDMENT, WAIVER AND CONSENT TO
REVOLVING CREDIT, GUARANTY AND SECURITY AGREEMENT AND LETTER
OF CREDIT ISSUANCE AND REIMBURSEMENT AND GUARANTY AGREEMENT

THIS FIRST AMENDMENT, WAIVER AND CONSENT TO REVOLVING CREDIT, GUARANTY AND SECURITY AGREEMENT AND LETTER OF CREDIT ISSUANCE AND REIMBURSEMENT AND GUARANTY AGREEMENT (this “Amendment”), dated as of August 8, 2022, is entered into by and among Babcock & Wilcox Enterprises, Inc. (the “Borrower”), certain Guarantors from time to time party to the Financing Agreements referred to below (the “Guarantors” and, together with the Borrower, the “Loan Parties” and each, a “Loan Party”), certain financial institutions from time to time party to the Financing Agreements referred to below (collectively, the “Lenders”), PNC BANK, NATIONAL ASSOCIATION, a national banking association (“PNC”), as agent for Lenders under the Credit Agreement referred to below (in such capacity, the “Agent”)., and PNC, as issuer under the Letter of Credit Agreement referred to below (in such capacity, the “Issuer”). Terms used herein without definition shall have the meanings ascribed to them in the Financing Agreements defined below.

RECITALS

A. The Loan Parties, Lenders and the Agent have previously entered into that certain Revolving Credit, Guaranty and Security Agreement, dated as of June 30, 2021 (as amended, restated, modified and/or supplemented from time to time, the “Credit Agreement”), pursuant to which the Lenders have made certain loans and financial accommodations available to the Borrower

B. The Loan Parties and the Issuer have previously entered into that certain Letter of Credit Issuance and Reimbursement and Guaranty Agreement, dated as of June 30, 2021 (as amended, restated, modified and/or supplemented from time to time, the “Letter of Credit Agreement”, and together with the Credit Agreement, the “Financing Agreements”).

C. The Loan Parties have requested the Lenders, the Agent and the Issuer waive compliance with certain Payment Conditions for purposes of making a Permitted Restricted Payment.

D. The Loan Parties, the Lenders, the Agent and the Issuer also wish to amend the Financing Agreements on the terms and conditions set forth herein.

E. The Loan Parties are entering into this Amendment with the understanding and agreement that, except as specifically provided herein, none of Agent’s, Issuer’s or any Lender’s rights or remedies as set forth in the Financing Agreements or any Other Document is being waived or modified by the terms of this Amendment.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1. Amendments to Credit Agreement.

(a) The following defined terms are hereby added to Section 1.2 of the Credit Agreement in their proper alphabetical order:

“AB Amount” has the meaning set forth in definition of “Advance Billing Adjustment”.

“Advance Billing Adjustment” means, as of any fiscal quarter end testing date, an amount equal to (a) the amount of progress billing or other advance billing constituting a Current Liability (the “AB Amount”) as of such date of determination less (b) the AB Amount as of the last day of the fiscal quarter immediately preceding the fiscal quarter described in clause (a) above.

“Current Assets” means, with respect to Loan Parties on a Consolidated Basis, as of any applicable testing date, all current assets of such Person as of any date of determination calculated in accordance with GAAP less the Advance Billing Adjustment as of such testing date.

“Current Liabilities” means, with respect to Loan Parties on a Consolidated Basis, as of any applicable testing date, all liabilities which should, in accordance with GAAP, be classified as current liabilities, and in any event shall include all Indebtedness payable on demand or within one year from any date of determination without any option on the part of the obligor to extend or renew beyond such year, all accruals for federal or other taxes based on or measured by income and payable within such year, but excluding the current portion of long-term debt required to be paid within one year and the outstanding principal balance of the Revolving Loan.

“Current Ratio” shall mean, with respect to Loan Parties on a Consolidated Basis as of any applicable testing date, the ratio of (a) Current Assets to (b) Current Liabilities.

(b) Section 6.5 of the Credit Agreement is hereby amended by adding the following clause (f) immediately following clause (e):

“(f) Current Ratio Covenant. Cause Loan Parties on a Consolidated Basis to maintain as of the end of the fiscal quarter ending June 30, 2022 and as of the end of each fiscal quarter ending thereafter, a Current Ratio tested as of such date of not less than 1.25 to 1.00.”

2. Limited Waiver. The Borrowers request the Lenders, the Agent and the Issuer waive compliance with clause (j) of the definition of Payment Conditions in the Credit Agreement solely for purposes of the making of a Permitted Restricted Payment under clause (g) of the definition thereof in connection with making a dividend in respect of Preferred Equity after the date hereof and on or prior to September 30, 2022 in an aggregate amount not to exceed $3,715,000 (the “Requested Waiver”). Subject to satisfaction of the conditions precedent set forth in Section 5 below, the Lenders, the Agent and the Issuer hereby consent to the Requested Waiver (such consent, the “Limited Waiver”). Notwithstanding the foregoing, this Limited Waiver does not establish a course of conduct among Loan Parties and the Lenders, the Agent and the Issuer and Loan Parties hereby agree that the Lenders, the Agent and the Issuer are not obligated to waive any similar conditions under the Financing Agreements in the future.

3. Consent under Intercreditor Agreement. Agent hereby consents to an amendment to the Reimbursement/Cash Collateral Facility Agreement entered into on the date hereof on substantially similar terms as this Amendment (the “Reimbursement/Cash Collateral Amendment”), notwithstanding anything to the contrary in Section 10.4(c) of the Intercreditor Agreement.

4. Amendment Fee. In consideration of the agreements set forth herein, Borrower hereby agrees to pay to PNC, for the benefit of the Lenders, an amendment fee in the amount of $125,000(the “Amendment Fee”), which fee is non-refundable when paid and is fully-earned as of and due and payable in cash on the date of this Amendment (and which PNC is authorized to withdraw from the Borrower’s account).

5. Effectiveness of this Amendment. The Agent and the Issuer must be satisfied that the following conditions have been met before this Amendment is effective.

(a) Amendment. The Agent and the Issuer have received this Amendment, fully executed in a sufficient number of counterparts for distribution to all parties.

(b) Amendment to Reimbursement/Cash Collateral Facility. The Agent and the Issuer have received a fully executed copy of the Reimbursement/Cash Collateral Amendment.

(d) Representations and Warranties. The representations and warranties set forth herein must be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof).

6. Representations and Warranties. Each Loan Party represents and warrants as follows:

(a) Authority. Such Loan Party has full power, authority and legal right to enter into this Amendment and to perform all its Obligations hereunder and under the Other Documents (as amended or modified hereby). This Amendment has been duly executed and delivered by such Loan Party, and this Amendment constitutes the legal, valid and binding obligation of such Loan Party enforceable in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, moratorium or similar laws affecting creditors’ rights generally. The execution, delivery and performance of this Amendment (i) are within such Loan Party’s corporate powers, have been duly authorized by all necessary corporate action, are not in contravention of law or the terms of such Loan Party’s bylaws, articles of incorporation or other applicable documents relating to such Loan Party’s formation or to the conduct of such Loan Party’s business or of any material agreement or undertaking to which such Loan Party is a party or by which such Loan Party is bound, (ii) will not, in any material respect, conflict with or violate any law or regulation, or any judgment, order or decree of any Governmental Body, (iii) will not require the Consent of any Governmental Body or any other Person, except those Consents which have been duly obtained, made or compiled prior to the date hereof and which are in full force and effect or except those which the failure to have obtained would not have, or could not reasonably be expected to have a Material Adverse Effect and (iv) will not conflict with, nor result in any breach in any of the provisions of or constitute a default under or result in the creation of any Lien except Permitted Encumbrances upon any asset of any Loan party under the provisions of any material agreement, charter document, operating agreement or other instrument to which such Loan Party is a party or by which it or its property is a party or by which it may be bound.

(b) Representations and Warranties. Each of the representations and warranties made by a Loan Party in or pursuant to the Financing Agreements, the Other Documents and any related agreements to which it is a party, and each of the representations and warranties contained in any certificate, document or financial or other statement furnished at any time under or in connection with the Financing Agreements, the Other Documents or any related agreement 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, other than representations and warranties relating to a specific earlier date, and in such case such representations and warranties are true and correct in all material respects as of such earlier date.

7. Choice of Law. This Amendment shall in accordance with Section 5-1401 of the General Obligations Law of the State of New York, be governed by and construed in accordance with the laws of the State of New York.

8. Counterparts; Facsimile Signatures. This Amendment may be executed in any number of and by different parties hereto on separate counterparts, all of which, when so executed, shall be deemed an original, but all such counterparts shall constitute one and the same agreement. Any signature delivered by a party by facsimile transmission or by electronic transmission (including email transmission of a PDF copy or other copy of an image of a signed counterpart) shall be deemed to be an original signature hereto.

9. Reference to and Effect on the Other Documents.

(a) Upon and after the effectiveness of this Amendment, each reference in the Financing Agreements to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Financing Agreements, and each reference in the Other Documents to the “Credit Agreement”, “Letter of Credit Agreement” or “Financing Agreements”, “thereof” or words of like import referring to the Financing Agreements, shall mean and be a reference to the Financing Agreements as modified and amended hereby.

(b) Except as specifically amended above, the Financing Agreements and all Other Documents, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed and shall constitute the legal, valid, binding and enforceable obligations of Borrower to the Agent, the Issuer and the Lenders, except as such enforceability may be limited by any applicable bankruptcy, insolvency, moratorium or similar laws affecting creditors’ rights generally.

(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Agent, the Issuer and/or the Lenders under any of the Other Documents, nor constitute a waiver of any provision of any of the Other Documents.

(d) To the extent that any terms and conditions in any of the Other Documents shall contradict or be in conflict with any terms or conditions of the Financing Agreements, after giving effect to this Amendment, such terms and conditions are hereby deemed modified or amended accordingly to reflect the terms and conditions of the Financing Agreements as modified or amended hereby.

10. Estoppel. To induce the Agent, the Issuer and the Lenders to enter into this Amendment and to continue to make cash collateral available under the Financing Agreements, each Loan Party hereby acknowledges and agrees that, to its knowledge, as of the date hereof, there exists no right of offset, defense, counterclaim or objection in favor of any Borrower as against the Agent, the Issuer or any Lender with respect to the Obligations.

11. Integration. This Amendment, together with the Other Documents, incorporates all negotiations of the parties hereto with respect to the subject matter hereof and is the final expression and agreement of the parties hereto with respect to the subject matter hereof.

12. Severability. If any part of this Amendment is contrary to, prohibited by, or deemed invalid under Applicable Laws, such provision shall be inapplicable and deemed omitted to the extent so contrary, prohibited or invalid, but the remainder hereof shall not be invalidated thereby and shall be given effect so far as possible.

13. Submission of Amendment. The submission of this Amendment to the parties or their agents or attorneys for review or signature does not constitute a commitment by the Agent, the Issuer or any Lender to make any changes to the terms of the Financing Agreements and this Amendment shall have no binding force or effect until all of the conditions to the effectiveness of this Amendment have been satisfied as set forth herein.

14. Guarantor’s Acknowledgment. With respect to the amendments to the Financing Agreements effected by this Amendment, each Loan Party signatory hereto that is a Guarantor hereby acknowledges and agrees to this Amendment and confirms and agrees that its Guaranty (as modified and supplemented in connection with this Amendment) is and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects except that, upon the effectiveness of, and on and after the date of this Amendment, each reference in such Guaranty to either Financing Agreements, “thereunder”, “thereof” or words of like import referring to either Financing Agreements, shall mean and be a reference to such Financing Agreement as amended or modified by this Amendment. Although the Agent, the Issuer and the Lenders have informed the Guarantors of the matters set forth above, and each Guarantor has acknowledged the same, each Guarantor understands and agrees that neither Agent, Issuer nor any Lender has any duty under the Financing Agreements, the Guaranty or any other agreement with any Guarantor to so notify any Guarantor or to seek such an acknowledgement, and nothing contained herein is intended to or shall create such a duty as to any transaction hereafter.

[signature pages follow]

IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above written.

	BABCOCK & WILCOX ENTERPRISES, INC., as Borrower

	By:	/s/ Rodney Carlson
	Name:	Rodney Carlson
	Title:	Treasurer

Signature Page to First Amendment, Waiver and Consent to
Revolving Credit, Guaranty and Security Agreement and Letter of Credit Issuance and Reimbursement and Guaranty Agreement

	GUARANTORS:

	AMERICON EQUIPMENT SERVICES, INC.
	AMERICON, LLC
	BABCOCK & WILCOX CONSTRUCTION CO., LLC
	BABCOCK & WILCOX EBENSBURG POWER, LLC
	BABCOCK & WILCOX EQUITY INVESTMENTS, LLC
	BABCOCK & WILCOX HOLDINGS, LLC,
	BABCOCK & WILCOX INDIA HOLDINGS, INC.
	BABCOCK & WILCOX INTERNATIONAL SALES AND SERVICE CORPORATION
	BABCOCK & WILCOX INTERNATIONAL, INC.
	THE BABCOCK & WILCOX COMPANY
	BABCOCK & WILCOX TECHNOLOGY, LLC
	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, LLC
	EBENSBURG ENERGY, LLC
	O&M HOLDING COMPANY
	POWER SYSTEMS OPERATIONS, INC.
	SOFCO – EFS HOLDINGS LLC
	BABCOCK & WILCOX SPIG, INC.
	BABCOCK & WILCOX CANADA CORP.

	By:	/s/ Rodney Carlson
	Name:	Rodney Carlson
	Title:	Treasurer

Signature Page to First Amendment, Waiver and Consent to
Revolving Credit, Guaranty and Security Agreement and Letter of Credit Issuance and Reimbursement and Guaranty Agreement

	PNC BANK, NATIONAL ASSOCIATION, as Agent, sole Lender, and Issuer

	By:	/s/ Mathew Leighton
	Name:	Mathew Leighton
	Title:	Senior Vice President

Signature Page to First Amendment, Waiver and Consent to
Revolving Credit, Guaranty and Security Agreement and Letter of Credit Issuance and Reimbursement and Guaranty Agreement

Exhibit 1.2(b)

Form of Compliance Certificate

COMPLIANCE CERTIFICATE

PNC Bank, National Association

2 International Place, 29th Floor

Boston, MA 02110

Attention: Relationship Manager – Babcock & Wilcox

MSD PCOF Partners XLV, LLC

c/o MSD Partners, L.P.

645 Fifth Ave, 21st Floor

New York, New York 10022 5910

Attn: Marcello Liguori

Email: mliguori@msdpartners.com

The undersigned, the [Chief Executive Officer / Chief Financial Officer / Treasurer / Controller] of BABCOCK & WILCOX ENTERPRISES, INC., a corporation organized under the laws of Delaware (“Borrowing Agent”), certifies to (i) PNC BANK, NATIONAL ASSOCIATION, in its capacity as agent (in such capacity, “Agent”) under the Credit Agreement referenced below, and the financial institutions referenced below, that, pursuant to the terms and conditions of that certain Revolving Credit, Guaranty and Security Agreement, by and among Borrowing Agent, as the borrower thereunder, the financial institutions party thereto from time to time, and Agent, dated as of June 30, 2021 (as may be amended, modified, supplemented, renewed, restated or replaced from time to time, the “Credit Agreement”); and (ii) MSD PCOF Partners XLV, LLC as agent for the Cash Collateral Providers under that certain Reimbursement, Guaranty and Security Agreement, by and among Borrowing Agent, as the borrower thereunder, the financial institutions party thereto from time to time (the “Cash Collateral Providers”), dated as of June 30, 2021 (as may be amended, modified, supplemented, renewed, restated or replaced from time to time, the “Reimbursement Agreement”, and together with the Credit Agreement, the “Debt Documents”); the Loan Parties are in compliance for the [month / quarter / fiscal year] ending___________________ , 20___ with all required covenants set forth in the Debt Documents and no Default or Event of Default exists (if not true, in the “Comments Regarding Exceptions” section below specify the Default or Event of Default, its nature, when it occurred, whether it is continuing and the steps being taken by the Loan Parties with respect to such Default or Event of Default). Capitalized terms used in this Compliance Certificate and not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement and the Reimbursement Agreement, as applicable.

Without limiting the foregoing, the undersigned certifies that the Loan Parties are in compliance with the requirements or restrictions imposed by Sections 6.5 and 7.6, of the Credit Agreement or Reimbursement Agreement, as applicable, except as may be set forth below

[Attached hereto as Schedule A are covenant calculations which show such compliance (or non-compliance) with [Section 6.5 and]¹ [7.6]² of the Credit Agreement or Reimbursement Agreement, as applicable.]

[Compliance status is indicated by circling Yes/No under “Complies” column.]

Financial Covenants	Required	Actual	Complies
Section 6.5 (a) – Fixed Charge Coverage Ratio	≥ 1.00 to 1.00	___ to 1.00	Yes/No
Section 6.5 (b) – Senior Net Leverage Ratio	≤ 2.50 to 1.00	___ to 1.00	Yes/No
Section 6.5(c) Cash Repatriation Covenant	≤ $35,000,000	$__________	Yes/No
Section 6.5(d) Minimum Liquidity Covenant	≥ $30,000,000	$__________	Yes/No
Section 6.5(f) Current Ratio Covenant	≥ 1.25 to 1.00	___ to 1.00	Yes/No
Section 7.6 – Maximum Capital Expenditures	≤ $7,500,000	$__________	Yes/No

[Since the date of the last Compliance Certificate, there has been no change to the Loan Parties’ operating or other deposit accounts, securities accounts, commodities accounts, and other accounts, other than Excluded Deposit Accounts, at which any Loan Party maintains funds or investments, except as set forth below: _________________________________.

Since the date of the last Compliance Certificate, there has been no change to the Loan Parties’ registered Intellectual Property, including any applications for any of the foregoing, and including any licenses pursuant to which any Loan Party is a licensee of any of the foregoing, except as set forth below: _________________________________.

Since the date of the last Compliance Certificate, there has been no change to the Loan Parties’ leased locations or to locations of equipment and Inventory (except for Inventory in transit) or other Collateral with a value equal to the Dollar Equivalent of $500,000 or greater (other than those locations permitted in the Credit Agreement or the Reimbursement Agreement, as applicable), except as set forth below: __.]³

[Since the date of the last Compliance Certificate, there has been no change to Loan Parties’ Equity Interests except as set forth below: _________________________________.]⁴

[Attached as Exhibit I hereto are updates to the following schedules as permitted by Section 9.17 of the Credit Agreement or Reimbursement Agreement, as applicable]⁵

Comments Regarding Exceptions: _________________________________.

[signature page follows]

¹ For quarterly certificate only.

² For annual certificate only.

³ To be provided with quarterly compliance certificates

⁴ To be provided with quarterly compliance certificates

⁵ To be provided with quarterly compliance certificates

Very truly yours,

BABCOCK & WILCOX ENTERPRISES, INC. as Borrower

By:

Name:

Title:

SCHEDULE A TO COMPLIANCE CERTIFICATE

Calculations

EXHIBIT I TO COMPLIANCE CERTIFICATE

Updates to Schedules

Exhibit 10.2

Execution Version

FIRST AMENDMENT, WAIVER AND CONSENT TO
REIMBURSEMENT, GUARANTY AND SECURITY AGREEMENT

THIS FIRST AMENDMENT, WAIVER AND CONSENT TO REIMBURSEMENT, GUARANTY AND SECURITY AGREEMENT (this “Amendment”), dated as of August 8, 2022, is entered into by and among Babcock & Wilcox Enterprises, Inc. (the “Borrower”), certain Guarantors from time to time party to the Reimbursement Agreement (the “Guarantors” and, together with the Borrower, the “Loan Parties” and each, a “Loan Party”), certain financial institutions from time to time party to the Reimbursement Agreement referred to below (collectively, the “Cash Collateral Providers”), and MSD PCOF Partners XLV, LLC (“MSD”), in its capacity as agent for the Cash Collateral Providers (in such capacity, the “Agent”). Terms used herein without definition shall have the meanings ascribed to them in the Reimbursement Agreement defined below.

RECITALS

A. The Loan Parties, Cash Collateral Providers and the Agent have previously entered into that certain Reimbursement, Guaranty and Security Agreement, dated as of June 30, 2021 (as amended, restated, modified and/or supplemented from time to time, the “Reimbursement Agreement”), pursuant to which the Cash Collateral Providers have made certain loans and financial accommodations available to the Borrower.

B. The Loan Parties have requested the Cash Collateral Providers and Agent waive compliance with certain Payment Conditions for purposes of making a Permitted Restricted Payment.

C. The Loan Parties, Cash Collateral Providers and the Agent also wish to amend the Reimbursement Agreement on the terms and conditions set forth herein.

D. The Loan Parties are entering into this Amendment with the understanding and agreement that, except as specifically provided herein, none of Agent’s or any Cash Collateral Provider’s rights or remedies as set forth in the Reimbursement Agreement or any Other Document is being waived or modified by the terms of this Amendment.

AGREEMENT

1. Amendments to Reimbursement Agreement.

(a) The following defined terms are hereby added to Section 1.2 of the Reimbursement Agreement in their proper alphabetical order:

“AB Amoun” has the meaning set forth in definition of “Advance Billing Adjustment”.

“Current Ratio” shall mean, with respect to Loan Parties on a Consolidated Basis as of any applicable testing date, the ratio of (a) Current Assets to (b) Current Liabilities.

(b) Section 6.5 of the Reimbursement Agreement is hereby amended by adding the following clause (f) immediately following clause (e):

(c) Exhibit 1.2(b) to the Reimbursement Agreement is hereby replaced with the new Exhibit 1.2(b) attached to this Amendment.

2. Limited Waiver. The Borrowers request the Agent and Cash Collateral Providers waive compliance with clause (j) of the definition of Payment Conditions solely for purposes of the making of a Permitted Restricted Payment under clause (g) of the definition thereof in connection with making a dividend in respect of Preferred Equity after the date hereof and on or prior to September 30, 2022 in an aggregate amount not to exceed $3,715,000 (the “Requested Waiver”). Subject to satisfaction of the conditions precedent set forth in Section 5 below, the Agent and Cash Collateral Providers hereby consent to the Requested Waiver (such consent, the “Limited Waiver”). Notwithstanding the foregoing, this Limited Waiver does not establish a course of conduct among Loan Parties and the Agent and Cash Collateral Providers and Loan Parties hereby agree that the Agent and Cash Collateral Providers are not obligated to waive any similar conditions under the Reimbursement Agreement in the future.

3. Consent under Intercreditor Agreement. Agent hereby consents to an amendment to the ABL Facility entered into on the date hereof on substantially similar terms as this Amendment (the “ABL Amendment”), notwithstanding anything to the contrary in Section 10.4(d) of the Intercreditor Agreement.

4. Amendment Fee. In consideration of the agreements set forth herein, Borrower hereby agrees to pay to Agent, for the benefit of the Cash Collateral Providers, an amendment fee in the amount of $275,000 (the “Amendment Fee”), which fee is non-refundable when paid and is fully-earned as of and due and payable in cash on the date of this Amendment.

5. Effectiveness of this Amendment. Agent must be satisfied that the following conditions have been met before this Amendment is effective.

(a) Amendment. Agent has received this Amendment, fully executed in a sufficient number of counterparts for distribution to all parties.

(b) Amendment to ABL Facility. Agent has received a fully executed copy of the ABL Amendment.

6. Representations and Warranties. Each Loan Party represents and warrants as follows:

(b) Representations and Warranties. Each of the representations and warranties made by a Loan Party in or pursuant to the Reimbursement Agreement, the Other Documents and any related agreements to which it is a party, and each of the representations and warranties contained in any certificate, document or financial or other statement furnished at any time under or in connection with the Reimbursement Agreement, the Other Documents or any related agreement 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, other than representations and warranties relating to a specific earlier date, and in such case such representations and warranties are true and correct in all material respects as of such earlier date.

9. Reference to and Effect on the Other Documents.

(a) Upon and after the effectiveness of this Amendment, each reference in the Reimbursement Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Reimbursement Agreement, and each reference in the Other Documents to “the Reimbursement Agreement”, “thereof” or words of like import referring to the Reimbursement Agreement, shall mean and be a reference to the Reimbursement Agreement as modified and amended hereby.

(b) Except as specifically amended above, the Reimbursement Agreement and all Other Documents, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed and shall constitute the legal, valid, binding and enforceable obligations of Borrower to Agent and the Cash Collateral Providers, except as such enforceability may be limited by any applicable bankruptcy, insolvency, moratorium or similar laws affecting creditors’ rights generally.

(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Agent and/or the Cash Collateral Providers under any of the Other Documents, nor constitute a waiver of any provision of any of the Other Documents.

(d) To the extent that any terms and conditions in any of the Other Documents shall contradict or be in conflict with any terms or conditions of the Reimbursement Agreement, after giving effect to this Amendment, such terms and conditions are hereby deemed modified or amended accordingly to reflect the terms and conditions of the Reimbursement Agreement as modified or amended hereby.

10. Estoppel. To induce Agent and the Cash Collateral Providers to enter into this Amendment and to continue to make cash collateral available under the Reimbursement Agreement, each Loan Party hereby acknowledges and agrees that, to its knowledge, as of the date hereof, there exists no right of offset, defense, counterclaim or objection in favor of any Borrower as against Agent or any Cash Collateral Provider with respect to the Obligations.

13. Submission of Amendment. The submission of this Amendment to the parties or their agents or attorneys for review or signature does not constitute a commitment by Agent or the Cash Collateral Providers to make any changes to the terms of the Reimbursement Agreement and this Amendment shall have no binding force or effect until all of the conditions to the effectiveness of this Amendment have been satisfied as set forth herein.

14. Guarantor’s Acknowledgment. With respect to the amendments to the Reimbursement Agreement effected by this Amendment, each Loan Party signatory hereto that is a Guarantor hereby acknowledges and agrees to this Amendment and confirms and agrees that its Guaranty (as modified and supplemented in connection with this Amendment) is and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects except that, upon the effectiveness of, and on and after the date of this Amendment, each reference in such Guaranty to the Reimbursement Agreement, “thereunder”, “thereof” or words of like import referring to the Reimbursement Agreement, shall mean and be a reference to the Reimbursement Agreement as amended or modified by this Amendment. Although Agent and the Cash Collateral Providers have informed the Guarantors of the matters set forth above, and each Guarantor has acknowledged the same, each Guarantor understands and agrees that neither Agent nor any Cash Collateral Provider has any duty under the Reimbursement Agreement, the Guaranty or any other agreement with any Guarantor to so notify any Guarantor or to seek such an acknowledgement, and nothing contained herein is intended to or shall create such a duty as to any transaction hereafter.

[signature pages follow]

IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above written.

BABCOCK & WILCOX ENTERPRISES, INC., as Borrower

	By:	/s/ Rodney Carlson
	Name:	Rodney Carlson
	Title:	Treasurer

Signature Page to First Amendment to Reimbursement Agreement

	GUARANTORS:

	AMERICON EQUIPMENT SERVICES, INC.
	AMERICON, LLC
	BABCOCK & WILCOX CONSTRUCTION CO., LLC
	BABCOCK & WILCOX EBENSBURG POWER, LLC
	BABCOCK & WILCOX EQUITY INVESTMENTS, LLC
	BABCOCK & WILCOX HOLDINGS, LLC,
	BABCOCK & WILCOX INDIA HOLDINGS, INC.
	BABCOCK & WILCOX INTERNATIONAL SALES AND SERVICE CORPORATION
	BABCOCK & WILCOX INTERNATIONAL, INC.
	THE BABCOCK & WILCOX COMPANY
	BABCOCK & WILCOX TECHNOLOGY, LLC
	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, LLC
	EBENSBURG ENERGY, LLC
	O&M HOLDING COMPANY
	POWER SYSTEMS OPERATIONS, INC.
	SOFCO – EFS HOLDINGS LLC
	BABCOCK & WILCOX SPIG, INC.
	BABCOCK & WILCOX CANADA CORP.

	By:	/s/ Rodney Carlson
	Name:	Rodney Carlson
	Title:	Treasurer

Signature Page to First Amendment to Reimbursement Agreement

MSD PCOF Partners XLV, LLC, as Agent

By:

/s/ Marcello Liguori

	Name: Marcello Liguori
	Title: Vice President

MSD PCOF Partners XLV, LLC, on behalf of the Required Cash Collateral Providers

By:

/s/ Marcello Liguori

	Name: Marcello Liguori
	Title: Vice President

Signature Page to First Amendment to Reimbursement Agreement

	BTC Offshore Holdings Fund II-B, LLC,

	By: Blue Torch Offshore Credit Opportunities Master Fund II, LP

		Its Sole Member

	By: Blue Torch Offshore Credit Opportunities GP II LLC

		Its General Partner

	By: KPG BTC Management LLC, its sole member,

	as a Cash Collateral Provider

	By:	/s/ Kevin Genda
	Name:	Kevin Genda
	Title:	Managing Member

	BTC Offshore Holdings Fund II-C, LLC,

	By: Blue Torch Offshore Credit Opportunities Master Fund II LP, its sole member

	By: Blue Torch Offshore Credit Opportunities GP II LLC, its general partner

	By: KPG BTC Management LLC, its sole member,

	as a Cash Collateral Provider

	By:	/s/ Kevin Genda
	Name:	Kevin Genda
	Title:	Managing Member

Signature Page to First Amendment to Reimbursement Agreement

	BTC Holdings Fund II, LLC,

	By: Blue Torch Credit Opportunities Fund II LP, its sole member

	By: Blue Torch Credit Opportunities GP II LLC, its general partner

	By: KPG BTC Management LLC, its sole member,

	as a Cash Collateral Provider

	By:	/s/ Kevin Genda
	Name:	Kevin Genda
	Title:	Managing Member

	BTC Holdings KRS Fund LLC,

	By: Blue Torch Credit Opportunities KRS Fund LP, its sole member

	By: Blue Torch Credit Opportunities KRS GP LLC, its general partner

	By: KPG BTC Management LLC, its sole member,

	as a Cash Collateral Provider

	By:	/s/ Kevin Genda
	Name:	Kevin Genda
	Title:	Managing Member

Signature Page to First Amendment to Reimbursement Agreement

	BTC Holdings SBAF Fund LLC,

	By: Blue Torch Credit Opportunities SBAF Fund LP, its sole member

	By: Blue Torch Credit Opportunities SBAF GP LLC, its general partner

	By: KPG BTC Management LLC, its sole member,

	as a Cash Collateral Provider

	By:	/s/ Kevin Genda
	Name:	Kevin Genda
	Title:	Managing Member

	BTC Holdings SC Fund LLC,

	By: Blue Torch Credit Opportunities SC Master Fund LP, its sole member

	By: Blue Torch Credit Opportunities SC GP LLC, its general partner

	By: KPG BTC Management LLC, its sole member,

	as a Cash Collateral Provider

	By:	/s/ Kevin Genda
	Name:	Kevin Genda
	Title:	Managing Member

Signature Page to First Amendment to Reimbursement Agreement

Exhibit 1.2(b)

Form of Compliance Certificate

COMPLIANCE CERTIFICATE

PNC Bank, National Association

2 International Place, 29th Floor

Boston, MA 02110

Attention: Relationship Manager – Babcock & Wilcox

MSD PCOF Partners XLV, LLC

c/o MSD Partners, L.P.

645 Fifth Ave, 21st Floor

New York, New York 10022 5910

Attn: Marcello Liguori

Email: mliguori@msdpartners.com

The undersigned, the [Chief Executive Officer / Chief Financial Officer / Treasurer / Controller] of BABCOCK & WILCOX ENTERPRISES, INC., a corporation organized under the laws of Delaware (“Borrowing Agent”), certifies to (i) PNC BANK, NATIONAL ASSOCIATION, in its capacity as agent (in such capacity, “Agent”) under the Credit Agreement referenced below, and the financial institutions referenced below, that, pursuant to the terms and conditions of that certain Revolving Credit, Guaranty and Security Agreement, by and among Borrowing Agent, as the borrower thereunder, the financial institutions party thereto from time to time, and Agent, dated as of June 30, 2021 (as may be amended, modified, supplemented, renewed, restated or replaced from time to time, the “Credit Agreement”); and (ii) MSD PCOF Partners XLV, LLC as agent for the Cash Collateral Providers under that certain Reimbursement, Guaranty and Security Agreement, by and among Borrowing Agent, as the borrower thereunder, the financial institutions party thereto from time to time (the “Cash Collateral Providers”), dated as of June 30, 2021 (as may be amended, modified, supplemented, renewed, restated or replaced from time to time, the “Reimbursement Agreement”, and together with the Credit Agreement, the “Debt Documents”); the Loan Parties are in compliance for the [month / quarter / fiscal year] ending__________________ , 20___ with all required covenants set forth in the Debt Documents and no Default or Event of Default exists (if not true, in the “Comments Regarding Exceptions” section below specify the Default or Event of Default, its nature, when it occurred, whether it is continuing and the steps being taken by the Loan Parties with respect to such Default or Event of Default). Capitalized terms used in this Compliance Certificate and not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement and the Reimbursement Agreement, as applicable.

[Attached hereto as Schedule A are covenant calculations which show such compliance (or non-compliance) with [Section 6.5 and]¹ [7.6]²of the Credit Agreement or Reimbursement Agreement, as applicable.]

[Compliance status is indicated by circling Yes/No under “Complies” column.]

Financial Covenants	Required	Actual	Complies
Section 6.5 (a) – Fixed Charge Coverage Ratio	≥ 1.00 to 1.00	___ to 1.00	Yes/No
Section 6.5 (b) – Senior Net Leverage Ratio	≤ 2.50 to 1.00	___ to 1.00	Yes/No
Section 6.5(c) Cash Repatriation Covenant	≤ $35,000,000	$__________	Yes/No
Section 6.5(d) Minimum Liquidity Covenant	≥ $30,000,000	$__________	Yes/No
Section 6.5(f) Current Ratio Covenant	≥ 1.25 to 1.00	___ to 1.00	Yes/No
Section 7.6 – Maximum Capital Expenditures	≤ $7,500,000	$__________	Yes/No

[Since the date of the last Compliance Certificate, there has been no change to Loan Parties’ Equity Interests except as set forth below: _________________________________.]⁴

[Attached as Exhibit I hereto are updates to the following schedules as permitted by Section 9.17 of the Credit Agreement or Reimbursement Agreement, as applicable]⁵

Comments Regarding Exceptions: _________________________________.

[signature page follows]

¹ For quarterly certificate only.

² For annual certificate only.

³ To be provided with quarterly compliance certificates

⁴ To be provided with quarterly compliance certificates

⁵ To be provided with quarterly compliance certificates

Very truly yours,

BABCOCK & WILCOX ENTERPRISES, INC. as Borrower

By:

Name:

Title:

SCHEDULE A TO COMPLIANCE CERTIFICATE

Calculations

EXHIBIT I TO COMPLIANCE CERTIFICATE

Updates to Schedules

EXHIBIT 31.3

CERTIFICATION

I, Kenneth M. Young, certify that:

I have reviewed this Amendment No.1 to the quarterly report on Form 10-Q of Babcock & Wilcox Enterprises, Inc.;

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:

designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Dated: November 9, 2022	/s/ Kenneth M. Young
	Kenneth M. Young
	Chairman and Chief Executive Officer

EXHIBIT 31.4

CERTIFICATION

I, Louis Salamone, certify that:

I have reviewed this quarterly report on Form 10-Q of Babcock & Wilcox Enterprises, Inc.;

any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Dated: November 9, 2022

/s/ Louis Salamone

Louis Salamone

Executive Vice President, Chief Financial Officer and Chief Accounting Officer

(Principal Financial and Accounting Officer)